Interim Decision #2784

MATTER OF TORO
In Deportation Proceedings
A-20704042

Decided by Board February 27, 1980
(1) To be admissible in deportation proceedings, evidence must be probative and its use
fundamentally fair so as to not deprive respondents of due process of law.
(2) The fact that given evidence resulted from a search and seizure in violation of fourth
amendment rights will not of necessity result in a finding that use of the evidence is
fundamentally unfair.
(3) The circumstances surrounding an arrest and interrogation may In some cases
render evidence inadmissible under the due process clause of the fifth amendment
(4) With or without a voluntariness issue, cases may arise where the manner of acquisition of evidence is so egregious that to rely on the evidence would offend fifth
amendment fundamental fairness requirements.
(5) Where investigating officer apparently stopped and questioned the respondent in
1974 solely because she appeared to be of Hispanic descent, consideration of her
resulting voluntary admissions was not fundamentally unfair where the officer was
acting in accordance with a. Service policy that was then held in good faith.

CHARGE
Order. Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Immigrant—no valid immigration document
ON BEHALF OF RESPONDENT: Dennis M. Mukai, Esquire
Popkin & Shamir, Inc.
5670

Wilshire Blvd.,

Suite 1800

Los Angeles, California 90036

BY: Milhollan, Chairman; Maniatis, Maguire, and Farb, Board Members. Dissenting
Opinion: Appleman, Board Wernher

In a decision dated September 5, 1974, an immigration judge found
the respondent deportable under section 241(a)(1) of the Immigration
and Nationality Act, 8 U.S.C. 1251(a)(1), as an immigrant not in
possession of a valid immigrant visa. A period of voluntary departure
was granted to the respondent, in lieu of deportation. The respondent
appealed from the finding of deportability. The appeal will be

dismissed.
340

Interim Decision #2784
At the deportation hearing conducted in this case, the respondent
denied the factual allegations and the charge in the Order to Show
Cause, and refused to testify as to her deportability. She stated that
she would not testify because her fourth amendment right against
illegal searches and seizures had been violated. In order to establish
the respondent's deportability, the Immigration and Naturalization
Service then offered a Form 1-213, "Record of Deportable Alien." This
document was admitted into evidence over the objection of the respondent's counsel.
The Form 1-213 contains admissions regarding the respondent's
alienage and deportability. These admissions were made to a Service
officer on August 9, 1974. The document indicates that the respondent
had been apprehended at 8:00 a.m. on that same day, and that the
report was made at 1:15 p.m. A Form 1-214 was also admitted into
evidence, and indicates that at 1:00 p.m., the respondent was given the
"Miranda" warnings in Spanish, except insofar as the warnings indicated a right to court-appointed counsel. However, the respondent
refused to sign the Form 1 214. No other evidence of alienage or
deportability was presented.
- Both at the hearing and on appeal, the respondent contends%hat the
Form 1 219 should have been suppressed because it was obtained as the
result of an illegal stop and arrest. The respondent, through counsel,
made an offer of proof to the effect that the immigration officers who
arrested her lacked a reasonable suspicion of her alienage when they
stopped her for questioning. It was alleged that the respondent was
stopped just after she stepped off a bus in downtown Los Angeles,
while she was wearing ordinary street clothes. It was then submitted
that a Service automobile pulled up next to the respondent, an officer
got out of the car, and asked the respondent for identification. There
was no apparent reason for speaking to the respondent other than "her
obvious Latin appearance." He proceeded to identify himself as a
Service officer, and indicated that he did not know the respondent's
name and was not looking for her specifically. He allegedly asked to see
the respondent's purse, opened it, removed a Social Security card and
pay stub, then put the respondent in his car. It was alleged that the
officers then proceeded down the street, stopped and questioned two
other women of Latin appearance, and also placed them in the car. The
women were then taken to Immigration Service offices, where they
were fingerprinted and again questioned, and where the information
contained in the Form 1-213 was obtained.
The respondent requested at the hearing that the immigration officer involved in this arrest be called as a witness in order to corroborate her version of events and to provide a foundation for the
admission of the Form 1-213. The immigration judge recessed the
-

-

341

Interim Decision #2784
hearing in order to ascertain whether the person who prepared the
Form 1-213 was available to testify that day. When it was discovered
that the officer was not immediately available, the immigration judge
denied the respondent's request for production of the officer and admitted the Form 1-213.
The immigration judge found the presence of the arresting officer
unnecessary as he concluded that the respondent had not established
any illegality concerning her arrest. In his decision he stated:
The Form 1-213 indicates that the method of location was Area Control. It is apparent
to me that cruising along a main artery of downtown Los Angeles would be the
appropriate way in which to spot possible illegal aliens and I see no reason to continue
this matter because of the unavailability of the Service investigator.

The immigration judge concluded that section 287(a) of the Act
authorized such encounters.
Subsequent to the immigration judge's decision in this case, the
Supreme Court rendered its decision in United States v. BrignoniPonce, 422 U.S. 873 (1975). That case held that, except at the border or
its functional equivalAits, officers on roving patrols may stop vehicles
only if they have specific, articulable facts, together with the rational
inferences drawn from those facts, that reasonably warrant the suspicion that the vehicles contain aliens illegally in the United States. The
Court stated:
Even if [the officers] saw enough to think that the occupants were of Mexican descent,
this factor alone would justify neither a reasonable belief that they were aliens, nor a
reasonable belief that the car concealed other aliens who were illegally in the country.

The Government had also contended in that case that "the public
interest in enforcing conditions on legal alien entry justifieEd1 stopping
persons who may be aliens for questioning about their citizenship and
status." Brignoni-Ponce at 883. The Court, however, concluded:
For the same reasons that the Fourth Amendment forbids stopping vehicles at
random to inquire if they are carrying aliens who are illegally in the country, it also
forbids stopping or detaining persons for questioning about their citizenship on less
than a reasonable suspicion that they may be aliens.

Brignoni-Pcmce at 884. Thus, it has now been held that persons may

not be stopped and questioned on the street by immigration officers
absent a reasonable suspicion that they are aliens. See Lee v. INS, 590
F.2d 497 (3 Cir. 1979); Cordon de guano v. INS, 554 F.2d 944, 946 (9 Cir.
1977); Illinois Migrant Council v. Pilliod, 548 F.2d 715 (7 Cir. 1977)
(order entered upon hearing en bane), modifying, 540 F.2d 1062 (7 Cir.
1976); Au Yi Lau v. INS, 445 F.2d 217 (D.C. Cir. 1971), cert. denied, 404
U.S. 864 (1971). But see Marquez v. Kiley, 436 F. Supp. 100 (S.D.N.Y.
197'7).
On the record before us, we cannot find that the arresting officers
342

Interim Decision #2784
had a reasonable suspicion that the respondent was an alien when she
was first stopped. Absent contrary testimony, it would appear that the
respondent was stopped solely because of her "Latin appearante."
Accordingly, the present record reflects that the initial stop of the
respondent was in violation of her fourth amendment rights.
Respondent, through counsel, submits that the evidence establishing
her deportability, which was acquired as a result of her apparently
unlawful initial stop, must accordingly be suppressed under the fourth
amendment exclusionary rule.' We do not agree. .
To be admissible in deportation proceedings, evidence must be
probative and its use fundamentally fair so as to not deprive
respondents of due process of law as mandated by the fifth amendment. See Trias-Hernandez v. INS, 528 F.2d 366, 369 (9 Cir. 1975);
Martin-Mendoza v. INS, 499 F.2d 918, 921 (9 Cir. 1974); Marlowe v. INS,
457 F.2d 1314, 1315 (9 Cir. 1972); Navarrette Navarette v. Landon, 223
F.2d 234, 237 (9 Cir. 1955), cert. denied, 351 U.S. 911 (1956). We have
concluded that evidence resulting from a search and seizure in violation of fourth amendment rights is not for that reason alone exclud=
able from civil deportation proceedings. See Matter of Sandoval, Inter=
im Decision 2725 (BIA 1979). Every fourth amendment violation will
not of necessity result in a finding that the admission of resulting
evidence is fundamentally unfair. The circumstances surrounding an
arrest and interrogation, however, may in some cases render evidence
inadmissible under the due process clause of the fifth amendment. See,
for example, Matter of Garcia, Interim Decision 2778 (BIA 1980);
Navia Duran v. INS, 568 F.2d 803 (1 Cir. 1977); Bong Attu Choy v. INS,
279 F.2d 642 (9 Cir: 1960) (involving involuntary statements). Mdreover, with or without a voluntariness issue, cases may arise in which
the manner of seizing evidence is so egregious that to rely on it would
offend the fifth amendment's due process requirement of fundamental
fairness. See, for example, Ex parte Jackson, 263 F.110 (D. Mont. 1920).
In the instant case, we assum.e that the arresting officers' conduct
did not comport with fourth amendment requirements as clarified
under present ease law. The incident in question, however, occurred in
1974, before the Supreme Court's decision in United States v. BrignoniPonce, supra, and while the Government position (as argued before the
Court in that case) was that immigration officers were vested with the
-

-

' No claim was advanced below, nor facts alleged on appeal, that the respondent's

subsequent statement was involuntary or otherwise inadmissible. The respondent's
counsel, at page 13 of his brief on appeal, states without elaboration that the respondent
"was intimidated into revealing some information on the 1-213." However, this allegation was never made at the hearing and, except for this brief statement, was not pursued
on appeal. There is nothing in the record to indicate that the respondent wail in any way
coerced into making her statement on August 9, 1974.

94..q

Interim Decision #2784
authority under section 287(a) of the Act to make inquiries of the type
involved here. Under these circumstances, where the investigating
officers were acting in accordance with Service policy, where the Service position was apparently held in good faith and not rejected by the
Supreme Court until nearly one year after the incident in question, and
where there was no evidence offered or alleged that the respondent's
admissions were either involuntary or otherwise affected by the circumstances of her arrest, we do not find that the admission into
evidence of the Form 1-213 was fundamentally unfair. We make this
finding assuming all of the facts alleged in respondent's offer of proof
to be true. The appeal will accordingly be dismissed.

The time for the respondent's original grant of voluntary departure
has long since expired. In accordance with Matter of Ch,ouliaris,16 I&N
Dec. 168 (BIA 1977), we will grant the respondent 30 days from the date
of this order in which to voluntarily depart from the United States.
• ORDER, The appeal is dismissed.
FURTHER ORDER, The respondent shall be permitted to depart
from the United States voluntarily within 30 days from the date of this
order or any extension beyond that time as may be granted by the
District Director. In the event of failure so to depart, the respondent
shall be deported as provided in the immigration judge's order.
Irving A. Appleman, Member DISSENTING:
I respectfully dissent.

In the course of the hearing below, the respondent requested that
the arresting officer be called as a witness in connection with the
submission of a Form 1-213 into evidence. The immigration judge
denied this request and admitted the Form 1 - 213. His findings of

alienage and deportability were predicated in large measure on the
information contained in this form.
As the majority notes, the decision below antedated United States v.
Brigncmi-Ponce, 422 U.S. 873 (1975), which enunciated the rule of

"reasonable suspicion of alienage." The immigration judge did not
have the benefit of Brignoni-Ponce when he made his ruling with
respect to the"witness. The so-called evidence about the "arrest" in this
case comes solely from an offer or proof made by counsel for the
respondent. The legality of the arrest was not put in issue through
testimony, or even, minimally, by appropriate affidavits, see Matter of
Geronimo, 13 I&N Dec. 680, 682 (BIA 1971); Matter of Tang, 13 I&N
Dec. 691 (BIA 1971); Matter of Wong, 13 I&N Dec. 820 (BIA
Notwithstanding the obvious inadequacy of this record the majority
' Although the immigration judge approved the offer as made, and the Service did not
object.
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Interim Decision #2784
has found that the respondent was stopped solely because of her "Latin
appearance." On the most tenuous of evidentiary bases it has found
that there was a fourth amendment violation. Under the rule laid down
in Matter of Sandoval, Interim Decision 2725 (BIA 1979), the illegality
of the arrest would be irrelevant insofar as the admissibility of the I213 was concerned. However, for whatever reason, the majority has
not applied a different standard, namely, that even though the
evidence would be admissible under Matter of Sandoval, nevertheless,

before it can be used, there must be "fundamental fairness" in the
manner in which it was obtained, so as not to offend fifth amendment
due process requirements of a fair hearing in its use.

The majority is now attempting to hedge its position in Matter of
Outside of the exclusionary rule, the relationship between
the manner in which evidence was obtained, and the "fairness" of the
hearing, would seem to be a very murky area indeed. In addition to
inquiry, where justified, into the circumstances of an arrest, there
must also be inquiry whether or not there is a breech of "fundamental

Sandoval.

fairness" in admitting the evidence. Complication is laid upon complication. As I expressed in my dissent in the Matter of Sandoval, I believe

the exclusionary rule is applicable in these proceedings and that
evidence which has been obtained in the violation of the fourth amendment is inadmissible per se. Nothing in the present decision convinces
me to change this position. It is laudable that the majority recognizes
the dangerous potential of Matter of Sandoval and seeks to dull its
edge. It is also unnecessary, if the exclusionary rule is held applicable.
Since the decision of the inunigration judge preceded United States
v. Brignoni-Ponee, supra, this case should be remanded and reopened
for consideration in the light of that holding. At the reopened hearing,

for reasons analogous to those set forth in my separate opinion in
Sandoval, the arresting officer should testify, the Form 1-213 should be
authenticated and a ruling made as to its admissibility, and the record
should be developed appropriately.
In the light of all the foregoing, I would remand.

345

Interim Decision #2785

MATTER OF WADAS

In Exclusion Proceedings
A-24000645
Decided by Board March 14, 1980
(I) In exclusion proceedings, under S C.F.R. 2362(b), the immigration judge has the
authority to regulate the course of the hearing, and where a determination of venue is
essential to such regulation, he may in certain situations hear a motion to change
venue without infringing on the general parole jurisdiction of the District Director.
(2) Where an applicant for admission has been paroled into the United States by the
District Director and has been granted permission to continue his journey outside the
district, his motion to the immigration judge in exclusion proceedings to change venue
is subject to considerations similar to those present in venue motions in deportation
proceedings.
(a) Where the applicant for admission was paroled into the United States. allowed to
journey outside New York, the district of the port of entry, where he had never
resided, and where the possible excludable acts had occurred in, and possible witnesses
were located in Massachusetts, an interpreter is required, and two previous hearings
failed to resolve the applicant's excludability, it was appropriate for the immigration
judge to hear a motion to change venue to Boston.
EXCLUDABLE:
Order. Act of 1952 — Section 212(a)(20) [8 U.S.C. 1182(a)(20)] — Immigrant — not in
possession of a valid visa
Q14 IIEHALF OF APPLICANT: Pro

se

Bin Ifilhollan, Chairman; Maniatis, Applernan, Maguire, and Farb, Board Members

The Service has filed an interlocutory appeal from a decision of
Immigration Judge John Ruggiero, granting a change in venue from
New York to Boston. It is the Service's contention that the immigration judge lacks jurisdiction to change venue in exclusion proceedings.
Although we do not normally hear appeals from interlocutory decisions, in this case we will make an exception because the issue to be
considered is important, and unlikely to be resolved in a more satisfactory context. Cf. Matter of Sacco, 15 I&N Dec. 109 (BIA 1974); Matter of
Fong, 14 I&N Dec. 670 (BIA 1974). The appeal will be dismissed.
At the exclusion hearing before the immigration judge on July 19,
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Interim Decision #2785
1979, there was testimony presented by the applicant for admission to
the effect that the designation of New York as the location of the
exclusion hearing was inappropriate. The applicant had applied for
admission at New York, had been paroled into the United States by the
District Director, and had been granted permission to continue his
journey outside the New York district of the Service. Based on the
information adduced at the hearing, the immigration judge concluded
that the exclusion hearing would more properly be heard in Boston,

and he ordered the change in venue to that city.
The Service on appeal contends that the immigration judge has no
jurisdiction to change the venue in exclusion proceedings where, as

here, the applicant has been paroled into the United States and allowed to travel outside the district in which he made his application
for admission. It cites section 212(d)(5) for the proposition that the
Attorney General may parole aliens into the. United States under such
conditions as he may prescribe, and that parole is not an admission for
purposes of the immigration laws. The Service also cites 8 C.F.R.
212.5(a) to show that the discretion granted to the Attorney General

under section 212(d)(5) of the Act has been delegated to the District
Director in charge of a port of entry. In addition, the Service relies on
Matter of Lepofskv, 14 I&N Dee_ 71R (IBA 1974), to establish its
contention that only the District Director may parole aliens into the
United States. Lepofsky involved a case where the immigration judge
allowed two applicants for admission to withdraw their application for
admission and granted them conditional "permission" to remain in the
United States for one month. The Board held that this order was an
infringement on the parole power of the District Director.
Finally, the Service cites Canceiro v. Marks, 860 F.Supp. 454 (S.D.

N.Y. 1973) for the authority that the Board has consistently held that
the District Director alone may parole aliens into the United States.
C yneeiro concerned a Cuban refugee refused parole by the District
Director who brought habeas corpus proceedings in the District Court.
It was noted by the court that the Board had adopted the position that
the discretion to parole lay with the District Director.
The Service concedes that immigration judges in deportation
proceedings do have the authority to decide changes in venue. Matter
of Seren, Interim Decision 2474 (BIA 1976). It contends, though, that
Semi/ is distinguishable on at least two grounds. The first is that the
immigration judge in deportation proceedings has jurisdiction over
questions involving procedural due process, and that venue is such a
question. Secondly, it asserts that an alien in deportation proceedings
has made an entry which places him within the normal Constitutional
protections, while an applicant for admission who has been paroled
into the United States "has no legal immigration status".
347

Interim Decision #2785
The last point that the Service makes is that even if the immigration
judge had authority to change venue, the applicant had not established
that this change was necessary.
After considering the points raised by the Service, we have concluded that change of venue in exclusion proceedings, where the applicant has be en paroled in and allowed to travel outside the district
where he applied for admission, is governed by considerations similar
to those present in deportation proceedings. Although the situation
may appear to the Service to present a conflict between the parole

powers of the District Director, and the jurisdiction which vests in the
immigration judge at the point where the exclusion hearing begins, we

view the situation in some what different terms. In a deportation
proceeding, the immigration judge has the jurisdiction to consider
venue because "8 C.F.R. 242.8 grants the immigration judge the power
to take such action as "may be appropriate to the disposition of the
case". Matter ofSeren, supra. We see no reason that the same considerations should not hold true in this exclusion proceeding. 8 C.F.R. 236.1,
in discussing exclusion proceedings, states in almost identical words

that:
"Subject to any specific limitation prescribed by the Act and this chapter, immigration judges shall also exercise the discretion and authority conferred upon the Attorney General by the Act as is appropriate and necessary for the disposition of such
cases."

In addition, 8 C.F.R. 236.2 delineates the rights and procedures to be
followed in exclusion proceedings in terms very similar to those in
deportation proceedings. This indicates that the distinction that the
Service wishes to draw between deportation and exclusion proceedings
on procedural grounds is not well founded. It also shows that the
asserted distinction between Constitutional rights in deportation
proceedings as opposed to those accorded in exclusion proceedings, is
in fact almost irrelevant. Whatever differences in treatment may be
justified on Constitutional grounds, the regulations provide protections to the aliens which are quite similar.
In addition, as a matter of practical consideration, the immigration
judge is in a good position to hear arguments on the issue of venue and

determine whether or not a hearing could better be conducted in a
different Service district. The exclusion hearing would provide a full
opportunity for all sides of the matter to be heard, and the issue could
be promptly resolved.
We do not find this procedure to infringe on the authority of the
District Director to set the conditions for parole. Unlike Lepofsky,
supra, where there was no express or implied authority for the im-

judge to find an alien excludable and then allow him to
remain, a change in venue is a natural adjunct of the immigration
migration

348

Interim Decision #2785
judge's authority to conduct exclusion hearings under 8 C.F.R. 236.1.
Such jurisdiction does not affect the District Director's jurisdiction to
set parole, or the conditions to be met by the parolee. It also does not
affect the District Director's authority to detain an applicant for
admission; nor does it in fringe on his authority to limit the applicant's
enlargement on parole to the vicinity of the port of entry. Here, the
applicant was paroled into the United States and allowed to travel
outside the district of the port of entry. In such a case, where it appears
with good reason that another venue should be designated after the
hearing commences, the immigration judge has the authority to hear a
motion to change venue, weigh the factors involved, and to make a new
designation if he considers it necessary. This procedure will enable
him to "regulate the course of the hearing" as provided in 8 C.F.R.
236.2(b).
In this case, the District Director designated New York as the place
of the hearing, and he contends that a change in venue is not justified.
The transcript shows that the applicant has never resided in New
York. It also indicates that the excludable acts occurred in, and the
possible witnesses are located in Massachusetts. In addition, the applicant requires an interpreter, and of which there have already been two,
with no resolution of the charge of excludability. We agree in these
circumstances that the immigration judge properly found that he had
authority to consider the question of venue once the hearing had
commenced, and that a change in venue was appropriate in the circumstances. The appeal is accordingly dismissed.
ORDER: The appeal is dismissed.

349


Interim Decision *1936

MATTER OF CHU
In Visa Petition Proceedings
A-12235139
Decided by Regional Commissioner January 20,1969
Beneficiary, who graduated from a medical school in the United States, is a
physician and, therefore, is classifiable as a member of the professions
under sections 101(a) (32) and 203(a) (3) of the Immigration and Nationality Act, as amended, notwithstanding he has not completed his internship.

This case comes forward on appeal from the decision of the
District Director, who on November 13, 1968, denied the petition.
In his denial, the District Director refers to the Department of
Labor's publication, Occupational Outlook Handbook, 1966-1967
edition, wherein it is stated in part that- a license to practice medicine is required in all States and the District of Columbia; that
to qualify for such, a candidate must graduate from an approved
medical school, pass such an examination, and in certain States

(including California) and the District of Columbia serve a oneyear internship and that even in States permitting the licensure
of a physician immediately after graduation from medical school,
an internship is always necessary for full acceptance by the professions. The District Director therefore concluded that an intern,
per se, cannot be classified as a "physician" and cannot be considered as a "professional" in the field of medicine. The District
Director has concluded further that a physician is one who, as a
minimum, possesses three to four years of pre-medical college
study followed by four years of medical training and one year of
internship and that the beneficiary has failed to meet qualifications necessary for professional recognition as a physician.
The subject alien is a 27 - year- old married citizen of China,
presently residing with his nonimmigrant alien spouse in San
Bernardino, California. He was admitted as a nonimmigrant student on August 10, 1960, and was given subsequent extensions of
stay in that status until June 1, 1968. On July 12, 1968, a petition
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Interim Decision * 1986
was filed by the San Bernardino County General Hospital, San
Bernardino, California, seeking preference classification for the
beneficiary under section 203 (a) (3) as a member of the professions. The beneficiary's profession or occupation is stated in the

petition to be "physician." The occupational title of the position
beneficiary is to occupy is "intern."
After careful consideration of the factors in this case, we cannot
agree with the decision of the District Director. A physician is
defined in section 101 (a) (32) of the Act, as amended, as being included within the "professions." The minimum requirement for
entry into the professions has been held to be a baccalaureate degree. (Matter of Asuncion, 11 I. & N. Dec. 660.)
The Dictionary of Occupational Titles, 1965, Volume I, Definitions of Titles, Third Edition, published by the Department of
Labor, places the occupational title of physician and intern in the
professional and kindred classification under the identical occupational code number 070.108.
The record shows that the beneficiary took pre-medical studies
from 1960 to 1964 at St. Louis University, St. Louis, Missouri,
receiving a Bachelor of Science degree. From 1964 to 1968 he attended the school of medicine of that University, graduating therefrom with the degree of Doctor of Medicine. He took practical
training authorized by this Service as a medical assistant from
June to September 1965 and from June to September 1966 at
Stockton State Hospital and from June to the end of July 1967 at
the San Joaquin County General Hospital, both hospitals located

in Stockton, California. The beneficiary has been employed since
July 1, 1968, and continues to be employed as an intern by the petitioner.
8 CFR 204.2(f) (2) states in pertinent part:
An alien physician shall be considered eligible for classification as a member
of the professions if he establishes that he was graduated from a medical
school in the United States or Canada ...

The Director of the Department of Graduate Medical Education of the American Medical Association, Chicago, Illinois, has
stated to this Service in a letter dated January 2, 1969, that graduation from an approved school of medicine in the United States
with conferral of the degree of Doctor of Medicine automatically
carrierith it the professional recognition of the individual concerned as a physician. The Director further states:
While conferral of the degree of Doctor of Medicine is a function of educatinnal institutions duly accredited and chartered in the individual states,

conferral of the license to practice medicine is a responsibility of the various

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Interim Decision #1936
state boards of licensure, and is one of the states' rights accounting for the
existence of individual and differing requirements in the various states.
The majority of states require a year's internship as a necessary prerequisite to licensure. In some instances, the examination is given prior to the internship, with the license actually conferred upon completion of the internship. There are some states which do not require internship, but which do
require either declaration of citizenship or full citizenship, even for graduates of United States schools. The requirements In the state of California
are different for non-citizens than they are for citizens, although in either
case the person concerned is a physician on a basis of possession of the degree of Doctor of Medicine
, we would say (beneficiary) definitely qualifies as
To sum up
a 'physician', but be must complete the required period of internship before
qualifying legally to practice medicine in one of the states. An internship is
certainly a professional occupation and in the context of this discussion, can

only be served by

a physician.

Further, since an applicant for a visa under section 208 (a) (3)
may be a member of a profession for which a license, or even citizenship, may be a prerequisite before he may engage in his professional endeavor, we do not read into laws or regulations, a requirement that the applicant (beneficiary in this case) must be
able to engage in the qualifying profession immediately if admitted to the United States. It is sufficient if he can show a bona fide
purpose or intent to work here in his qualifying endeavor. In this
case, beneficiary has shown that intent by actual employment in
his qualifying profession or occupation.
From the foregoing it is concluded that the petitioner has established that the beneficiary qualifies for the preference classification sought.
Beneficiary has been awarded "an advance" degree by an
American university and thus falls within the category of persons described in 29 CPR 60 Schedule A. Group I. and for whom
a blanket certification has been issued by the Department of
Labor pursuant to section 212(a) (14) of the Act.
The appeal will be sustained and the petition approved.

ORDER: It is ordered that the instant petition for classification under section 203(a) (3) of the Act, as amended, be and is
hereby approved.

124


Interim Decision #2201

MATTER OF Ko
In Section 245 Proceedings
A-19892048
Decided by Deputy Associate Commissioner May 9, 1973
(1) "Engaging" in an enterprise within the purview of 8 CFR 212.8(b)(4) contemplates full-time engagement to an extent which demonstrates an assumption
of risk and responsibility for the direction and control of the enterprise.
(2) The labor certification requirement of section 212(a)(14) of the Immigration
and Nationality Act, as amended, is inapplicable to an alien who establishes
that he is seeking to enter the United States with the bona fide primary
purpose of engaging in an enterprise in which he has already invested or is
presently investing a substantial amount of 'capital. Hence, an applicant for
adjustment of status under section 245 of the Act who in good faith has
invested $18,000 in a retail shoe business which he manages and directs fulltime is not within the purview of section 212(aX14) of the Act, notwithstanding
the fact that he also performs the duties of cashier in the store.
(3) A request for a labor certification exemption as an investor filed prior to
February 12, 1973, the effective date of the amendment of 8 CFR 212.8(b)(4) (38
P.R. 1379), may be decided under either the regulation as amended on that
date or as it existed prior thereto, whichever is more favorable to the alien.
ON BEHALF OF APPLICANT: Ruth Shamir, Attorney at Law

Suite 1800, 5670 Wilshire Boulevard
Los Angeles, California 90036

This case comes forward on certification for decision by the
Deputy Associate Commissioner, Travel Control. The District Director on January 18, 1973, denied the application on the ground
that the applicant is subject to the requirement of section
212(aX14) of the Immigration and Nationality Act, as amended;
does not have the labor certification for which that section pro-

and is, therefore, inadmissible to the United States for
permanent residence. The Regional Commissioner, to whom the
District Director certified his decision, affirmed the denial and in
turn certified his decision here.
The adjustment application in this case was filed in June 1971,
at which time the applicant alleged that although he is an
intending nonpreference immigrant, he is not within the class of
aliens excludable from admission under section 212(aX14) of the
vides;

349

Interim Decision #2201
Immigration and Nationality Act, as amended, because as an
"investor" and by regulation (8 CFR 212.8(bX4)) he is not required
to obtain the otherwise prescribed labor certification. Section
212(aX14) describes as ineligible for visas and for admission to the
United States:
(14) Aliens seeking to enter the United States, for the purpose of performing
skilled or unskilled labor, unless the Secretary of Labor has determined and
certified to the Secretary of State and to the Attorney General that (A) there
are not sufficient workers in the United States who are able, willing, qualified,
and available at the time of application for a visa and admission to the United
States and at the place to which the alien is destined to perform such skilled
or unskilled labor, and (B) the employment of such aliens will not adversely
affect the wages and working conditions of workers in the United States
similarly employed. The exclusion of aliens under this paragraph shall apply
to special immigrants defined in section 101(aX27)(A) (other than the parents,
spouses, or children of United States citizens or of aliens lawfully admitted to
the United States for permanent residence), to preference immigrant aliens
described in section 203(a)(3) and (6), and to nonpreference immigrant aliens
described in section 203(0(0 ... (8 U.S.C. 1182(a)(14))

The regulation (8 CFR 212.8(b)(4)), as it was when this adjustment application was filed, read:
(b) Aliens not required to obtain labor certifications. The following persons
are not considered to be within the purview of section 212(a)(14) of the Act and
do not require a labor certification: ... (4) an alien who will engage in a
commercial or agricultural enterprise in which he had invested or is actively
in the process of investing a substantial amount of capital.

The applicant has testified that he is in the business of selling
new shoes and that he has a retail store for this purpose in
Huntington Park, California. He has presented evidence that he
started this business in February 1971, with an initial investment
of $18,000, the proceeds from the sale of a grocery market which he
previously owned and operated for a year in Argentina. With that
money he leased premises for his present retail business, fitted
them out with furniture and fixtures, secured occupancy and
seller's permits, and purchased stock in trade; and he now has one
full-time and one part-time employee working in the business
besides himself. He oversees, manages and directs this enterprise;
monitors, and purchases its stock; and works, as well, as the
cashier in the store.
The District Director in his decision states that the law is clear
and without qualification in requiring a labor certification of a
nonpreference immigrant who will be performing skilled or unskilled labor; that the work of a cashier is such labor; and that to
perform it, the nonpreference immigrant must have the Secretary
of Labor's certification, notwithstanding any investment he may
have made; and that since a valid regulation may not go beyond
the scope of the law it implements, the regulation here must be
350

Interim Decision #2201
read as restricting its benefits solely to the investor described
therein who will not be performing skilled or unskilled labor in the
United States. I believe that this is an unnecessarily rigid interpretation of section 212(aX14).
It is certainly clear, as the District Director and Regional
Commissioner indicate, that section 212(aX14) was included in the
law to assure protection for American labor from alien workers

who would offer unwarranted competition. The House Committee
on the Judiciary in recommending the passage of H.R. 2580, which
contained what was to become the present section 212(aX14),
stated that it would assure among other things:
Safeguards to protect the American economy from job competition and from
adverse working standards as a consequence of immigrant workers entering
the labor market. (House Report No. 745, 89th Congress, 1st Session, August 6,
1965, page 18).

The Committee observed also that:
Section 212(aX14) of the Immigration and Nationality Act is restated so as to
require an affirmative finding by the Secretary of Labor that any alien
seeking to enter the United States as a worker, skilled or otherwise, will not
replace a worker in the United States nor will the employment of such alien
adversely affect the wages and work ing conditions of individuals in the United

States similarly employed. This required certification will be applicable to
special immigrants (other than the parents, spouses, and minor children of
U.S. citizens or permanent resident aliens), preference immigrants described
in section 206(a)(3) and (6) and the nonpreference immigrants. (Id., page 21).

In considering all of this, it is not unreasonable to conclude that
it was not the purpose of Congress in this section to discourage an
alien's bona fide effort to establish and conduct his own business
here, where his stake in that business is to be substantial and
irrevocably committed, and where there are encouraging prospects for its success. It cannot be said in any real sense that the
applicant's employment in a job that did not exist before he ma*
his investment is unfairly competitive with American labor. His
employment in his own business is not the "job competition" which
the Congress wished to protect against. His conduct of his business

does not "replace a worker in the United States" or "adversely
affect the wages and working conditions of individuals in the
United States similarly employed!' His efforts have, in fact,

created jobs for two American residents.
It is my opinion, therefore, that Congress did not intend the
provisions of section 212(aX14) to be applicable to the alien who can
establish that he is seeking to enter the United States with the
bona fide primary purpose of engaging in an enterprise in which
he has already invested or is presently investing a substantial
amount of capital. The regulation's requirement that the alien
must have the intention of engaging in the enterprise in which he
351

Interim Decision #2201
has invested or is investing is deliberate. Its object is to have him
participate full time in that enterprise, thereby assuring that he
does not evade the certification requirement of section 212(aX14)
by merely making the investment and then devoting no effort or
only part-time effort to the enterprise, while being employed
elsewhere in competitio.. with American workers. The regulation
contemplates that the investor's "engaging" in the enterprise will
be to an extent which demonstrates an assumption of risk and
responsibility for its direction and control. If he is engaged full
time to the extent indicated above—and I find that the applicant
here is—it is immaterial what his nominal job in the enterprise
may be.
Before leaving this matter, some observations on related aspects
should be made. Between the District Director's decision of January 18, 1973, and the Regional Commissioner's determination on
February 22, 1973, a changed text of the relevant regulation (8
CFR 212.8(bX4)) became operative: In order to further clarify the
rule, there were published on January 12, 1973 (38 FR 1379), to
become effective on February 12, 1973, requirements that the
minimum capital investment be $10,000 and that the alien establish that he has had at least one year's qualifying experience or
training. So the regulation now provides that the certification
exemption is available to:
An alien who establishes on Form 1-526 that he is seeking to enter the United
States for the purpose of engaging in a commercial or agricultural enterprise
in which he has invested, or is actively in the process of investing, capital
totaling at least $10,000, and who establishes that he has had at least 1 year's
experience or training qualifying him to engage in such enterprise.

It has been administratively determined by the Service that any
request for labor certification exemption as an "investor" filed
previous to February 12, 1973, may be decided under either the
current or previous regulation, whichever is more favorable to the
alien. In his decision affirming the denial in the present case, and
by way of dictum, the Regional Commissioner has stated that the
applicant here would not qualify under the experience requirement of the present regulation either. He bases this conclusion on
the holding apparently that self-employment in his grocery business in Argentina is different substantially from self-employment
in a retail shoe store in the Los Angeles metropolitan area. With
respect to that I would say the experience necessary to qualify
under the present regulation need not be in the same kind of
business.
The Service obviously is in no position to predict that the
investor's enterprise will succeed. It may fail and force the investor to seek employment elsewhere and in competition with U.S.
352

Interim Decision #2201
resident workers. The regulatory requirement that he establish
that he has had at least one year's experience or training qualifying him to engage in the enterprise is designed to give the Service
some further measure of assurance that he has at least the "knowhow" to participate meaningfully in the operation of the enterprise
which then presumably would have a reasonable chance to succeed. When a difference exists between the nature of the business
in which the alien was previously engaged and that of the

business in which he is now investing or has invested in the
United States, he may be able to establish that his previous
experience or training as an entrepreneur or manager for a year

or more meets the experience or training requirement of the
regulation.
The present application will be returned to the District Director
for further consideration not inconsistent with the above.
ORDER: It is ordered that the application be remanded to the
District Director for disposition in conformity with this opinion.

353


MATTER 05 M

W D

D---- S---- &

C

In EXCLUSION Proceedings
A-11135619
A-11132260
A-10367389
Dooidod by Ronod

December 12, 1958

Resident alien—"Commuter"—Commuter status lost when alien has been out
of employment for 6 months regardless of validity of Form 1-151 as reentry
document.
Regulation authorizing use of Form I-151 as reentry document for resident
alien who has been absent from United States for period not exceeding one
Your dnos not cause any change in long-standing rule relating to commuters.
Loss of commuter status occurs, as before, whelk Ole alien ban boon out of
employment in the United States for more than 6 months. (Cf. Matter of
5 I. & N. Dec. 716.)
L , 4 L & N. Dec. 454, and Matter of
EXCLUDABLE Act of 1252—Section 512(0) (go) to
visa, no passport.

UX.C. 1102(o) (`_>n)) —No

BEFORE THE BOARD

Discussion: The cases come forward on appeal from the District Directors at Detroit, Michigan, and at Buffalo, New York,
from &ski.ns rendered by two special inquiry officers on September 12, 1958, September 29, 1958, and October 6, 1958, directing
that the applicants be admitted as Canadian resident commuters.
The cases have been combined inasmuch as they involve a common
set of facts and point of law.
The first case involves a native and national of Canada, 51 years
old, widow, female, who was admitted to the United States fox
permanent rgidence at Detroit, Michigan, on November 26, 1957,
upon presentation of a nonquota, immigrant visa. Her status was
adjusted on the date of her admission to that of the Canadian resident commute: and oho has always maintained her residence in
Riverside, Ontario, Canada. She commuted daily to Detroit, Michigan, where she was employed as a saleswoman by a jewelry firm
until December 10, 1957, but has not been employed since that date.
She testified that she stopped working on December 10, 1957, in
order to be with her husband, then seriously ill, who passed away a
209

few days later. She then lost the services of her housekeeper upon
whom she depended to look after her child while she was employed
in Detroit and was not able to find another satisfactory housekeeper
until a month before her application for admission. For this reason
she was unable to seek and procure reemployment in the United
States but she now has been offered employment by her former company or another prospective employer, both of whom have solicited
her services. She claims that she has not abandoned her commuter
etatuo and that oho is still entitled to the privilegoo recerved for a

returning resident alien. She is in possession of a "temporary"
Alien Registration Receipt Card which she used as a border-crossing
identification card while commuting to work. She apparently had
been issued this card when admitted for permanent residence and
one of the conditions specified on the card limited its use to returning after absences not exceeding 6 months. Another Alien Registration Receipt Card was mailed to her at her Canadian address on
December 8, 1957, but she has no knowledge of receiving this card.
The second case concerns a native and national of Canada, 26
years uld, married, male, who was admitted to the United Slates fur

permanent residence on November 18, 1957, upon presentation of
a nonquota immigrant visa. His status was adjusted immediately
after admission to that of a Canadian resident commuter upon a

showing that he was returning to his residence. in Windsor, Ontario,
Canada, and was destined to employment as a salesman for a department store in Detroit, Michigan. He was laid off on December
28, 1957, and since that date has made constant and almost continuous efforts to find other employment in the United States without
success. This appears to have been due to the widespread unemployment in Detroit since the spring of 1555. In the meantime he
did odd jobs in Canada and availed himself of unemployment benefits to support his family. He has found that an opening may be
available again with his former employer in the United States and
seeks to reenter as a commuter despite the fact that he has not been
employed for almost 9 months. He is in possession of an Alien Registration Receipt Card, Form 1- 151 (edition of September 11, 1956),
which serves as a border-crossing identification card.
The third case relates to a, native and national of Cainada, 21 years
old, married, male, who was admitted to the United States on September 10, 1957, as a nonquota immigrant. He retained residence
in Canada and was employed in Buffalo, New York, from October
12, 1957, until March 14, 1958, as a production man for General
Motors. At the time of his employment he obtained a Form 1-151,
Alien Registration Receipt Card, which serves as a resident alien's
border-crossing card. During his employment he was recognised
as a commuter. However, he was laid off on March 14, 1958, be210

cause of lack of work and has sought employment in the United
States on various occasions since then without success. He now
desires to seek work in the United States. He testified that about
months prior to his application for admission he desired to move
to this country from Canada but his wife was then pregnant and
was unable to move. Since that time she has had a child. The
applicant intends to establish actual residence in this country within
a short time and intends to have his wife and child join him as
soon as they are able to do so.
The three cases have a common set of facts. In each case the alien
was admitted for permanent residence upon presentation of a nonquota immigrant visa, their status was immediately adjusted to that
of a commuter, they were employed in the United States while residing in Canada, and in each ease the alien has been out of work
for more than 6 months. It appears to be the Service contention
that the so-called commuter category is available only if the person
has not been unemployed in the United States for 6 months and
that beyond that period they are no longer eligible for the commuter
classification or for treatment as returning resident aliens. The
special inquiry officer, however, has equated the status of the aliens
with that of permanent resident aliens and in view of the eatension
of the period of validity of the Form I-151 to a period of one year,
has concluded that the aliens are eligible to return in possession of
Forms 1- 151 as returning residents.
The applicants belong to a class known as commuters, namely;
aliens who are lawfully admitted for permanent residence but continue to retain their place of residence in foreign contiguous territory while commuting to their place of employment in this country.
This anomalous class of immigrants known as "commuter" is fully
treated in Matter of L—, 4 I. & N. Dec. 454. After the enactment
of the Immigration and Nationality Act, since that act was silent
with regard to commuters, it was again necessary to consider the
question and it was decided in Matter of
5 I. & N.
Dec. 716, that this long-standing practice had not been disturbed
by the enactment of the new act.
In numerous cities along the international boundary lines to the
north and to the south of the United States live many aliens who
each day journey to their jobs on the American side of the border
and at the end of the same day usually return to their homes on
the other side of the frontier.
At the same time there exists a
somewhat smaller daily movement of Americans to and from jobs
in Canada and Mexico. This flow of aliens across the frontier posed
no administrative difficulty until the passage of the Immigration
Act of 1924 which laid down universal rules for documentation and
classified all arriving aliens as immigrants unless they fell into
211

certain designated groups described as nonimmigrants. Until April
1, 1927, they were permitted to enter as border crossers without
having been admitted for permanent residence. However, on that
date the policy was changed by the issuance of General Order No.
86, which provided that such aliens entering the United States
subsequent to June 30, 1924, to engage in employment or to seek
employment would not be considered as visitors for business or
pleasure but as aliens of the immigrant class and granted them a
reasonable period of time not to exceed 0

inUtial,

from June 1, 1917,

within which to obtain immigration visas if they had been enjoying
the border-crossing privilege on April 1, 1927. The legality of
General Order Nn CO was sustained in the ease of Yamuth v Umitpd
States en rel. Albro, 279 U.S. 231 (1929). Although General Order
No. 86 was later cancelled, the rights accrued thereunder were not
cancelled and subsequent regulations provided that alien commuters
should be considered aliens of the immigrant class (former 8 CFR
110.6, previously paragraph 1, subdivision C of Rule 3, Immigration
Laws and Rules of January 1, 1930). The adoption of the policy
found in General Order islo. 86 aroused controversy and apprehension along the Canadian and Mexican borders and fears that the
means of livelihood of the commuter would be jeopardized if access
to their jobs were shut. Representations on high diplomatic levels
were made and out of these discussions there eventually emerged an
amplification of our policy which permitted alien commuters to
establish lawful admission into the United States for permanent
residence, then furnished them with border-crossing identification
cards and permitted them to cross international boundary en route
to and from their employment (former 8 CFR 166). A memorandum from the Commissioner General (File 55499/537—A, November
16, 1927), in answer to questions raised by General Order No. 86,
set forth the policy that an alien residing in foreign contiguous
territory and enjoying the border-crossing privilege abandons such
right when he discontinues his employment in the United States
and does not renew same within a period of 6 months.
Thus, it has been held that an alien of the immigrant commuter
class who has been out of employment in the United States for 6
months is, notwithstanding temporary entries in the meanwhile for
other than employment purposes, deemed to have abandoned his
status of a permanent resident in the United States and thereafter,
if he seeks to reenter, is not admissible without again qualifying
for admission as a permanent resident (Matter of L , 4 I. & N.
Dec. 456). The salient points to be considered in determining abandonment of commuter status are intention and loss of employment.
It has been held that a commuter remains entitled to such classification, notwithstanding an absence of 6 months from this country and
212

interruption of his work for that period, if his employment, job or
position has not been lost and if the interruption was due to uncontrollable circumstances, such as serious illness, pregnancy, or a disabling injury, such as a broken arm, in which case the 6-month
period tolls until the commuter is again employable.'
A commuter who has been legally admitted as an immigrant is
entitled to receive a border-crossing identification card so long as
he continues in the status of a commuter (Matter of
5 I. & N. Dec. 718). The commuter situation manifestly does not
fit into any precise category found in the immigration statutes. The
status is an artificial one, predicated upon good international rela tions maintained and cherished between friendly neighbors. As
examples of the anomalous situation of the commuter, he cannot
claim naturalization benefits since the naturalization statute by
definition equates residence with domicile rather than an assimilated
status (Petition of Wright, 42 Supp. 306; In re Barron, 26 F.2d 106
(1928); Petition of Correa, 79 F. Supp. 265 (1948)). It has also
been held that a commuter is not a resident of the United States
under the Selective Service regulations (32 CFR 611.13(a) (6),
611.13 (b) (7), (1944)), because he did not reside in the United
States for the required period of 3 months. On the other hand, an
alien who has the status of a commuter must notify the Commissioner of his current address in compliance with section 35 of the
Alien Registration Act of 1940, as amended, and regulations issued

thereunder.
However, as part and parcel of this policy has been the holding
that the commuter who has been out of employment in the United
States for 6 months is, notwithstanding temporary entries in the
meanwhile for other than employment purposes, deemed to have
abandoned his status of a permanent resident in the United States
and thereafter, if he seeks to reenter, is not admissible without again
qualifying for admission as a permanent resident. Thus, in Matter
C--, 3 I. Sr N. Dec. 519 (1949), the alien, a native and
of D
citizen of Canada, was admitted to the United States for permanent
residence on May 25, 1948, and on the same date was issued a resident alien's border-crossing identification card, the validity of which
expired on May 22, 1949. He returned to Canada on the same date
of his admission and had no intention of residing here and never
had employment here but merely made several temporary visits
always with the intention of returning to his home in Canada. On
December 13, 1948, during the period of validity of his resident
alien's border-crossing identification card, he sought to enter for the
purpose of seeking employment. His possession of the unexpired
resident alien's border-crossing card did not avail him when seeking
'Matter of D—C--, 3 I. & N. Dec. 526, 527, Editor's note.

213

admission as an immigrant because he was not considered as a
returning legal resident within the purview of section 4(b) of the
Immigration Act of 1524. It i3 to bo noted that in that, case the
applicant was not in fact a commuter because he had never been
employed in this country and had not been employed for a period
of more than 6 months prinr to his application for adfaission with
the border-crossing card. Thus, it would appear that a commuter
is entitled to readmission as a returning resident, but that the primary consideration is that he maintain the status of a commuter.
As a corollary requirement, he must also comply with the conditions controlling the use of border-crossing cards.
In the instant cases, the applicants had been employed in the
United States for periods of approximately 2 weeks, 6 weeks and
5 months, respectively. Their jobs were then terminated. Since
that time all of the applicants have been employable for more than
6 months but have been unable to obtain work in the United States
during that period. At least one has done odd jobs in Canada and
two have no assurance of resuming their jobs.
The eireumotanees presented here differ from those in Matter of
L—, 4 I. & N. Dec. 454. There the applicant had been steadily
employed in the United States by one firm for 25 years, was disabled
by illness for 5 months and sought entry into the United States
6 months and 1 week after he was absent from his job to resume
his employment. In view of the fact that there was no evident
intention to abandon commuter status, that he had never lost his
job which was being held open and was available to him during the
period of his absence, that the illness tolled the 6-month period
until he was again employable, he was admitted as a returning
re s ident. In the eaoeo before nc, it is evident that the previous
employment in the United States had been lost and were not available during the 6 months or more of unemployment. Under the
historical policy set out above, they are no longer to be regarded as
possessing the status of commuters and the fact that their resident
alien's border - crossing card or its substitute, the Alien -Registration
Receipt Card, Form 1 - 151, may still be valid does not avail the
applicants inasmuch as they- are not eligible for the commuter status.
The appeals of the district directors will be sustained and exclusion
will be ordered.
Order: It ifi; ordered that the appeals of the district dir,ieto•c
from the decisions of the special inquiry officers be sustained and
that the aliens be excluded on the documentary grounds set forth
in the caption.

214


Interim Decision #2071

MATTER OF PADUANO

In Deportation Proceedings
A-18609140
Decided by Board January 21, 1971
The Board of Immigration Appeals lacks the authority to review a district
director's denial of a stay of deportation sought for a purpose unrelated
to the deportation proceedings.
3HARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2) fl—Nonimmigrant visitor—remained longer.
BEHALF OF RESPONDENT:
Peter Zimmerman, Esquire
100 State Street
Boston, Massachusetts 02109

ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

IN

Joseph F. O'Neil, Esquire
100 State Street
Boston, Massachusetts 02109

This is an appeal frtm an order of a special inquiry officer deing respondent's motion to reopen the deportation proceedings.
e appeal will be dismissed.
Respondent is a 28-year-old native and citizen of Italy who was
mated to the United States on March 24, 1969 as a nonimmimt visitor for business, authorized to remain for a period to
)ire May 24, 1969. He applied for an extension of stay but it
s denied and he was given until June 3, 1969 to depart. On his
lure to depart, deportation proceedings were started against
I. After a hearing at which respondent conceded deportability,
special inquiry officer granted his application for the privilege
ioluntary departure on or before September 13, 1969, with an
rnate order for his deportation to Italy if he failed to depart.
pondent waived his right of appeal to this Board from that
?r, but failed to depart.
hereafter, respondent filed a motion to reopen the proceedings
rder that he might apply for adjustment of status under sec-

658

Interim Decision #2071
tion 245 of the Immigration and Nationality Act. By order dated
June 30, 1970, the special inquiry officer denied the motion for
failure to show prima facie eligibility for section 245 relief. Respondent did not appeal to this Board from that order, and on
July 17, 1970 the District Director issued a warrant for his deportation to Italy. On September 24, 1970, the District Director notified respondent to surrender for deportation on September 29,
1970.
On the eve of deportation, on September 28, 1970, respondent
filed with the District Director an application for a stay of deportation to November 29, 1970. As reasons for the stay, the application recited that a petition for absolute divorce had been filed
against respondent and a cross-petition had been prepared by his
attorney. Respondent further asserted that his presence in the
United States is needed in connection with that litigation. The
District Director promptly denied the stay application on the
same day, September 28, 1970.
Respondent filed a petition for review in the United States
Court of Appeals for the First Circuit under section 106(a) of
the Act, and his deportation was automatically stayed under the
provisions of section 106(a) (3). We have not been informed of
the recitals of the petition for review. The Court of Appeals entered the following "Substitute Decree" on November 12, 1970,
Paduano v. INS, No. 7714:
This case was submitted on petition to review an order of the District
Director and respondent's motion for summary action with memorandum in
support thereof.
Upon consideration thereof, and it appearing, inter alia, that petitioner
failed to exhaust his administrative remedies, the petition is dismissed for
want of jurisdiction.
Because of the total frivolousness of this petition, resulting in a stay of
deportation for which there is no semblance of excuse, this decree shall become
effective forthwith.

On the same day, respondent filed a motion to reopen the deportation proceedings "so that he may have an opportunity to be
heard on his allegation that the denial of his application for a
Stay of Deportation was arbitrary, an abuse of discretion, contrary to law and a denial of due process . . ." Before us on appeal
is the special inquiry officer's order of November 18, 1970 denying the motion to reopen.
At the oral argument before this Board, counsel for respondent
made it clear that he was challenging only the District Director's
denial of a stay of deportation. The motion to reopen and the appeal to this Board from its denial were undertaken solely to cure
659

Interim Decision #2071
the failure to exhaust administrative remedies referred to in the
Court of Appeals decree, to pave the way for judicial review of
the District Director's stay denial on its merits.
As counsel concedes, neither the special inquiry officer nor this
Board on appeal has power to review a District Director's denial
of a stay of deportation under these circumstances. Where a stay
is thus sought for purposes unrelated to the deportation proceedings, under 8 CFR 243.4 the District Director's denial is not appealable and is administratively final. Judicial review of such an
order of a District Director may be had by an appropriate action
in the district court, not by petition for review under section
106(a) in the Court of Appeals. See Cheng Fan Kwok v. INS,
392 U.S. 206 (1968).
By availing himself of the automatic stay of deportation afforded by section 106(a) (3) of the Act and until recently afforded on appeal to this Board by 8 CFR 3.6,' the respondent has
managed to achieve in effect the very relief denied him by the
District Director on September 28, 1970; and this, by the simple
?xpedient of bringing an action for judicial review in a court
which, as the Supreme Court has clearly indicated, lacks jurisdicion to entertain it. To avoid further delay, we have expedited
∎ur decision on this appeal.
ORDER: It is ordered that the appeal be and it is hereby dismissed.

That regulation has been amended, effective January 9, 1971, to eliminate
automatic stay of deportation on appeal to this Board from an order of a
cial inquiry officer denying a motion to reopen. See 36 Fed. Reg. 316.

660

1


Interim Decision #1351

MATTER or Psalm
In DEPORTATION Proceedings
A-15713945
A-13285441
Decided by Board June 18,1964
Respondent, a native and citizen of the Dominican Republic, has not established
that because he was employed for a period of 0 mouths in a comparatively

minor capacity in the Servicio de Inteligencia Militar he would be subject to
physical persecution within the meaning of section 243(h), Immigration and
Nationality Act, if deported to the Dominican Republic.
CHARGE :
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2) 3—Nonimmigrant—remained longer (both).

In a decision dated December 16, 1963, the Special Inquiry Officer
found the respondents herein deportable on the charge contained in

the order to show cause, denied their applications for temporary withholding of deportation under section 243 (h) of the Immigration and
Nationality Act, but granted them the privilege of voluntary departure
from the United States. From that decision the respondents have
appealed to this Board. Deportability has been conceded and the sole
issue before this Board is the denial of the respondents' applications
for withholding of deportation under section 243(h) of the Immigration and Nationality Act. The appeals will be dismissed.
In considering the applications for relief the Special Inquiry Officer
noted that the female respondent's claim of physical persecution is
based entirely on the fact that she is the spouse of the male respondent.
Accordingly, the Special Inquiry Officer concluded that it was necessary only to consider the application of the male respondent. He
disposed of the matter on that basis and in this action we concur.
The male respondent is a 29 year old married alien, native and citizen of the Dominidan Republic, who last entered the United States at
New Bedford, Massachusetts, on July8,1962, when he was admitted as

a nonimmigrant crewman and authorized to remain in the United
603

Interim Decision #1351
States for a period of time not to exceed 29 days. He remained
beyond that time without authority and is consequently, subject to
deportation under section 241 (a) (2) of the Immigration and Nationality Act. Our consideration of this appeal. will be directed to his claim
that if he were to be deported to the Dominican Republic he would
be subject to persecution in that country. In support of this claim he
has submitted the following facts for consideration. In 1956 he obtained employment with the Dominican Police Force as an investigator. The record indicates that he -wore the uniform of the Dominican Police Force and that his activities as a law enforcement officer
were concerned mostly with the investigation of robberies. In 1960
his employment was terminated for the reason that he had accumulated
an excessive amount of demerits during his period of employment

with the police force. Thereafter he worked as a seaman and continued
as such until a short time after Trujillo was assassinated in May of
1961. Upon abandoning his calling as a seaman he continued employment with a Dominican electrical corporation servicing boilers. It is
his testimony that at that time he also began working for the
Servicio Inteligencia Milker (SIM), having obtained such employment with the help of his uncle who became Chief of the Central Information Agency of the SIM. His employment with the SDI continued for approximately six months when that organization went
out of existence. The main basis for his claim of persecution is based
upon his employment with the SDI He testified that he worked in
the Confidential Squad of the Section of Social Politics, and it was
his duty to inform his superiors concerning people in the Dominican
Republic who were displeased or dissatisfied with the Government of
that country. Upon questioning he testified that he did not cause any
one to be arrested, did not inform the SIM about any one and his
name was never published as a member of the SIM. However, he
stated that it was a well known fact that he was the nephew of Manuel
Antonio Perez and at the conclusion of his employment with the SIM
he found it necessary to go into hiding. Sometime thereafter he
obtained a job as a seaman on the vessel which brought him to the
United States in July 1962. Other testimony given by the respondent
in this regard has been fully noted in the opinion of the Special
Inquiry Officer and need not be repeated at this time.
The Special Inquiry Officer found that in view of the fact that the
respondent was a comparatively minor employee of the SIM there was

little reason to find that he would be persecuted were he to return to
his home country. He concluded that the respondent had failed to
establish that he would be subject to physical persecution in the
Dominican Republic.
694

Interim Decision #1351
Counsel for the respondent appeared at oral argument on appeal.
The substance of his argument relates to his request for clarification
of the Board's decision in two cases, Matter of Dias, File A-12386631,
decided by the Board on March 20, 1963, and the Matter of TorresTejeda, File A-12336079, decided by the Board on January 3, 1964.
Counsel for the respondents seeks to simplify the matters in. question
before this Board by characterizing our decision in .Dias, as the finding
that an innocent bystander who might be persecuted by an unruly mob
cannot be found eligible for relief under section 243 (h). He describes
our decision in the T orres-Tejeda case as finding that a person who was
a "hatchet man" for Trujillo was not entitled to relief under section
243(h) because here he would be punished for crimes which he admitted committing. Such would not be persecution but rather prosecution and accordingly, would constitute appropriate punishment for
admitted crimes. With the analysis of these two cases counsel declares
he has no difficulty. He seeks in the instant case to place the male
respondent in a position between what he implies are the extremes of

circumstances relating to Dominicans who seek relief under section
243(h). In other words, he proposes the following question: "If

the Board can find that an innocent bystander such as Diaz is not
eligible for 243 (h) relief and can also find that a so-called 'hatchet
man' for a Government now overthrown is not eligible for 243(h)
relief, why then should not a man who has served with the SIM in a
minor capacity be granted withholding of deportation by reason of
anticipated persecution V"
In answer to counsel's arguments we find that the situations presented in the Diaz and Torres cases have little relevancy to the present
application for relief. As this Board has so often said in prior cases,
applications for withholding of deportation based upon a claim of

persecution must of necessity be considered on individual circumstances
and factual situations. The burden of showing persecution is and
must be upon the applicant for the requested relief. Generally speaking, the persecution to which section 243 (h) refers connotes confinement, torture, or death inflicted on account of race, religion, or political
viewpoint. This, of course, refers to physical persecution. 1 It has
been held that the section involved relates also to economic proscription which is so severe as to deprive a person of all means of earning
a livelihood? The present case urges in effect that the respondent is
fearful for his physical well being if he is to be returned to the Dominican Republic and this fear is based upon his short service in a minor
capacity as a member of the SIM. It is our judgment, therefore, that
-

1
3

.131aoina v. Bouchard, 286 F. 2d 507, Cal. 3, Feb. 2, 1961.
.1)unat v. Harney, 297 F. 2d 744, C.A. 3, Jan. 24, 1962.

605

Interim Decision #1351
our decision must be based upon a consideration of the possibility of
actual physical persecution to which the respondent would be subjected. His testimony in this regard has been reviewed at length
by the Special Inquiry Officer. Nowhere in this record is there proof
or testimony sufficient to warrant our reversing the holding of the
Special Inquiry Officer. The present government in the Dominican
Republic is a stable one. The organization to which the respondent
belonged is now defunct. The respondent has failed to show, except
by surmise and speculation, any positive, conclusive or even persuasive
reasons for us to assume that he would be physically persecuted in his
home country. By his own testimony his service with the SDK was
undistinguished and innocuous.
From all the above and after a careful and thOrough study of the
record before us, this Board has concluded that the application for
withholding of deportation under section 248 (h) is not warranted in
this case. Our consideration as hereinabove described has been limited
to the claim of the male respondent. Inasmuch as we find his application to have no merit, it follows that the application of the female
respondent should also be denied. Accordingly, the following order
will be entered.
ORDER: It is ordered that the appeals be and the same are hereby
dismissed.

606


Interim Decision #1488

ilATITZt OF WONG'

-

In Amendment of Record Proceedings .
A-14281992.
•

Decided bk Acting Regional Commipeigner Iv2y 9 1 1965
of record of admission is granted an alien erroneously admitted as a United Mates citizen in 1948, when aliOnt 12 years
of age, who was brought to the United States by his alien mother through
arrangements made by her and his father who was then posing as a nativeborn citizen, since his application for admission on March 24, 1948, which
was still pending on December 20, 1948, when his father became a naturalized citizen; was made within the statutory period prescribed by the Act of
December 28, 1945, and he was eligible for admission for permanent residence under the provisions of that Act upon his father's naturalization.

Application for amendment

This record relates to a 28-year-old married male, native and
'citizen of China. Applicant's alien wife and two minor United
States citizen children are residing in the United States with him.
On March 24, 1948, at the age of 12 years, applicant applied for
admission as the United States citizen son of his father who was
;hen posing as a native born citizen. At that time applicant was
accompanied by his mother who applied -for admission as the alien
spouse of a citizen member of the United States Armed Forces (Act
of December 28, 1945). Both applicant and his mother were excluded and on December 30, 1948, the Board of Immigration Appeals ordered their admission as a citizen and resident alien
respectively.
It has now been determined that at the time application for admission was made, applicant's father was not a citizen of the United
States. However, on December 20, 1948, the father achieved citizenship through naturalization based on his military service.
The Act of December 28, 1945, entitled "Admission of Alien
Spouses and Alien Minor Children of Citizen Members of the United
States Armed Forces," provided for the admission, without visas, of
certain aliens if the application for admission was made within 3
years of the effective date of the Act.
-

253

Interim Decision #1488
Applicant's father was honorably discharged from the United

States Armed Forces on July 31, 1945, and as heretofore stated became a citizen of the United States on December 20, 1948. The
applicant first applied for admission prior to .the date on which his
father became a citizen of the United States. His application for
admission, however, Was still pending and continuing at that time.
Therefore, his application for admission is considered to have been
made within the 3-year period of time prescribed by the Act of
December 28, 1945. It is concluded that applicant was eligible for
admission as an alien for permanent residence upon his father's
naturalization.
Applicant was brought to the United States by his mother through.

arrangements made by her and his father. It is assumed that at the
age of 12 years, applicant was not an effective party to these arrangements. Applicant is steadily employed, is caring for his wife and
two children, ,iias served honorably in the Armed Forces of the
United States, and has no record of arrests or problems with law
enforcement officers.
This record has been carefully reviewed. The facts and circumstances warrant favorable action on the application.

ORDER: It is ordered that the record be amended to show that
WONG, Kwong Chou was admitted at San Francisco, California, on
December 30, 1948, for permanent residence ex BS. General Gordon.

254


Interim Decision #1778

MATTER

or Woo

In Exclusion Proceedings
A-10096314
Decided by Board September 7, 1967
Jurisdiction to consider an application for adjustment of status under section
245, Immigration and Nationality Act, as amended, by an alien excluded and
paroled into the United States, who has not been served with an order to show
cause or a warrant of arrest, lies with the District Director (8 CFR 245.2(a) ).
EXCLUDED : ACt of 1824—NO immigration visa.

Executive Order No. 8706—No passport.
ON BEHALF OF SERVICE:

ON BEHALF OF APPELLANT •
Elmer Erica, Maguire

Allan A. Shader

515 Madison Avenue
New York. New York 10022
(Brief filed)

Trial Attorney
Brief filed)

The case comes forward on motion of counsel dated March 29, 1967
requesting that the "deportation" proceeding 1 be reopened to allow
the respondent to apply for the privilege of adjustment of status under section 245 of the Immigration and Nationality Act, as amended.
The new facts set forth are that since the entry of the final order
herein, a relative visa petition has been approved granting the respondent immediate relative status (201 (b) ) ; that the alien is eligible

to receive an. immigrant visa and is admissible to the United States
for permanent residence and an immigrant visa is immediately available to him at the time his application will be approved; and that he
has become, in all respects, eligible for adjustment of status under
section 245 of the Immigration and Nationality 'Act, as amended.
This case was previously before us on September 30, 1952 on appeal
from an order 'entered by the Acting Assistant Commissioner on May
28, 1952, affirming the appellant's exclusion from the United States
by a Board of Special Inquiry on the above-stated grounds. Briefly,
the record relates to a native and citizen of China, born February 3,
It is assumed that the reference to a deportation proceeding rather than to
error.

an exclusion proceeding is an Inadvertent

407

Interim Decision #1778
1912, male, married, who arrived at the port of New York on December 25, 1951, claiming to be Wong Ling, a son of Wong Wing, a United
States citizen. On the basis of the appellant's testimony that he believed himself to be the blood son of Wong Wing and Lee Shee, he
was issued a travel affidavit on November 27, 1951 by the American
Consul at Hong Kong. However, the findings before a Board of Spe.cial Inquiry established that the appellant was an adopted son and did
not acquire citizenship under the provisions of section 1993 of the Revised. Statutes. He was thereupon ordered excluded. Subsequently, on
October 10, 1952, an order of parole was entered. A visa petition filed
by Connie Wei for immediate relative status under section 201(b) of
the Immigration and Nationality Act, as amended, was approved on
February 24, 1967.
The trial attorney has filed a brief in opposition to the motion to
reopen, asserting that under section 245 of the Immigration and Nationality Act, the appellant is ineligible for such relief, inasmuch as
he has not been inspected and admitted but excluded from the United
States on his false claim to citizenship in 1952; thus, he is ineligible
for section 245 relief. The alien's counsel has filed a brief claiming that
the alien has been paroled into the United States and is therefore
eligible under section 245 of the Immigation and Nationality Act;
and that a hearing should be held before a special inquiry officer.
We believe the matter is covered by regulation, 8 CFR 245.2(a),
which provides as follows :
Au application for adjustment of status under section 245 of the Act * * by
an alien after he ban been served with an order to show cause or a warrant of
arrest shall be made and considered only in proceedings under Part 242 of this
chapter. In any other ease, an alien who believes that he meets the eligibility
requirements of section 245 of the Act * " and section 245.1 shall apply to the
district director having jurisdiction over his place of residence.

In the present case, an order to show cause or a warrant of arrest
has never been issued. Therefore, the consideration of eligibility under
section 245 of the Immigration and Nationality Act lies within the
jurisdiction of the District Director as provided by the above regulation. The motion will be denied. without prejudice to renewal before
the District Director.

ORDER: It is ordered that the motion to reopen be denied.

408


Interim Decision #2863

MATTER OF KUBACSI
In Bond Breach Proceedings
A-22657465
Decided by Regional Commissioner January 28, 1981
(1) When a nonimmigrant alien as defined in section 101(1)(15)(B) of the immigration and
Nationality Act, 8 U.S.C. 1101(a)(15)(B) violates the conditions of bather maintenance
of status and departure bond issued under sections 103 and 214 of the Act, 8 U.S.C.
11103 and 1184, but does not commit a "substantial violation" within the meaning of 8
C.F.R. 103.6(e), the bond will be treated as cancelled, not breached.
(2) Determining whether a violation is "substantial" within the meaning of 8 welt.
10:3.6(e) requires consideration of the following factors:
(a) Extent of breach (how many days overstayed).
(b) Whether it was intentional or accidental on the part of the alien.
(c) Whether it was in good faith.

(d) Whether the alien took steps to make amends or to put himself in compliance.
brionuitional Fidelity /neurones Company v. Crosland, 490F Supp. 466, 448 (S.D.N.Y.
1880).

This matter is before me on appeal from the District Director's decision of March 5, 1980, declaring the bond breached and the collateral
forfeited because the 'alien for who the bond was posted violated the
conditions of the bond by remaining in the United States beyond his
authorized period of stay as a nonimmigrant visitor- The appeal will be
'sustained.
The facts in the case are not in dispute. The record clearly establishes

that the alien remained in the United States without authorization as a
nonimmigrant from September 7, 1979, until September 28, 1979, which
was the date he departed from the United States.
On appeal, the obligor states that neither he nor his nephew, the
nonimmigrant visitor for whom the bond was posted, realized that the
authorized stay of the nephew expired on September 6, 1979. Rather,
they believe that when the nephew was admitted to ,the United States
on August 6, 1979, he was given permission to remain for 2 months. The
obligor has submitted a letter from the American Vice Consul at Poznan,
Poland, which verifies that the nephew was issued a nonimmigrant
visitor's visa at that post on July 26, 1979, after the posting of a 'bond,
for the intended purpose of a visit of 2 months. The alien and his uncle
43

Interim Decision #2863
who posted the bond relied on this understanding of the appropriate use
of the nonimmigrant visitor's visa. Thus, when the nephew left the
United States on September 28, 1979, both he and the obligor believed
that he was departing within the period of a 2-month authorized visit.
The wording of federal regulations at 8 C.F.R. 103.6(e) leaves no
question that a bond must be declared breached and the collateral forfeited when there has been a substantial violation of the stipulated

conditions. This regulation was amended in 1967 (see, 32 Federal Register 9622, July 4, 1967). The previous version had provided for breach
of a bond whenever there had been any violation of its terms. The
change in the regulation added the element that a violation must be
found to be substantial before a bond could be declared breached.
Generally, the Service has held that the ' continued presence of an
alien for whom the bond was posted for any period without Service
authorization constitutes a substantial violation of the conditions of a
maintenance of status and departure bond. The authority for this interpretation of the term substantial is 8 C.F. R. 103.6(e)(2) which requires
that the alien for whom the bond was posted have uninterrupted Service
approval of his presence here_ Hoirever, 8 C.F.R. 103.6(c)(3) provides
that when there has been substantial performance of all conditions
unposed by the terms of a bond the obligor shall be released from
liability and the bond cancelled. Thus theie may be some situations
when there has been -less than strict compliance with the terms of
admission. Nevertheless, a bond would be cancelled rather than breached
based on a finding that the violation had not been "substantial."
A determination of whether a violation has been substantial requires
an assessment of the circumstances surrounding it. In Matter of Nguyen,
15 I&N Dec. 2344 (RIA 1975), violations were called substantial which

constitute a willful departure from the terms or conditions of the bond
or the failure to comply or adhere to the essential elements of those
terms or conditions.
A test for evaluating substantiality was set out in International Fidelity Insurance Company v. Crosland, 490 F.Supp. 446 (S.D.N.Y. 1980):
1. Extent of breach (how many days overstayed);
2. Whether it was intentional or accidental on the part of the alien;

3. Whether it was in good faith;
4. 'Whether the alien took steps to make amends or to put himself in compliance.

I have carefully reviewed the record and I find here that the alien
departed the United States in good faith, fully believing that he had
complied with the terms of his admission. He did not willfully depart
from the condition of the bond that he maintain a lawful nonimmigrant
status. His violation was accidental rather than intentional and he ultimately put himself in compliance by his departure 3 weeks later. I- find

that this 3-week period between the date the alien's actual stay had
44

Interim Decision #2863
expired and the date he left does not constitute a substantial breach.
The bond should be cancelled rather than breached.
ORDER. The appeal is sustained. The bond is cancelled.

45


Interim Decision #2930

MATTER OF QUINTERO

In Deportation Proceedings
A-24229344 •
Decided by Board November 16, 1982 •
(1) Deferred action status, granted pursuant to Operations Fnstructions 103.1(a)(1)(ii), is
a matter of the District Director's prosecutorial discretion and, therefore, neither the
immigration judge nor the Board may grant such status or review a decision of the District Director to deny it.
(2) Deferred action status may be requested at any stage in deportation proceedings and,
therefore, it was not error for the immigration judge to refuee to adjourn the hearing
for an alien to pursue that relief.
(3) The immigration judge's authority to grant voluntary departure does not confer on
him the power to accord an alien extended voluntary departure - since such authority is
within the exclusive jurisdiction of the District Director,
CHARGE:

Order: Act of 1952—See. 241(aX1) [8 U.S.C. 1251(a)(1)]—Excludable at entry uncle;
section 212(a)(20), U.S.C. 1182(a)(20)I—No valid immigrant
visa
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Byron B. Park, Esquire
681 Market Street, Suite 1031
San Frasteisco, California 94105

Ronald E. Le Fevre
General Attorney

Michael Maggio, Esquire
1800 Belmont Road, N.W.
Washington, D.C. 20009

Gerald Hurwitz
Appellate Trial
Attorney

BY:

Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

In a decision dated October 22, 1981, the immigration judge found the
respondent deportable on his own admissions and granted hini voluntary departure on or before April 1, 1982. The respondent has appealed
from that decision. The appeal will be dismissed.
The respondent is a native and citizen of Mexico who last entered the
United States on April 5, 1977. The record reflects that his wife is a
lawful permanent resident whose visa petition has been approved to
• accord the respondent second preference classification. They have two
children, one of whom is a United States citizen.
-

348

Interim Decision #2930
At his deportation hearing the respondent made a motion to adjourn
the proceedings in order to allow the District Director to act on his
request for termination of the proceedings or for deferred action status
pursuant to Operations Instruction 103.1(a)(1)(10. 1 He argued that the
District Director should have granted him permission to remain until a
visaimmbir was available because of the hardship his deportation would
cause his family. He further contended that the immigration judge should
grant him deferred action status or indefinite voluntary departure if the
District Director declined to accord him relief. The immigration judge
denied the respondent's motion to adjourn and found that he was without jurisdiction to grant deferred action status.
The respondent has reiterated his arguments on appeal and further
contends that the immigration judge erred in refusing to adjourn the
hearing so that the District Director could address his request for
deferred action status. We find his contentions to be without merit.
As the Operations Instruction indicates, deferred action status is an
informal administrative stay of deportation which is granted only where
the District Director, with the Regional Commissioner's approval, finds
it to be warranted. See Wan Chung Wen v. Ferro, 543 F. Supp. 1016
(W.D.N.T. 1982). Such permission to remain in this country indefinitely
is bestSwed as a matter of .prosecutorial grace and accords no rights to
permanent residence. See Soon Bok Yoon v. INS, 538 Iv.= 121115 Cir.
1976); Zocharakis v. Ham*" 617 F.Supp. 1026 (S.D. Fla. 1981);
Diseaga T. INS, 339 F. Supp. 1034 (N.D. Ill. 1972); Matter of Lennon,
15 I&N Dec. 9 (BIA 1974), rev'd on other grounds, Lennon v. INS, 527
F.2d 187 (2 Cir. 1975); see also Manantan v. INS, 425 F.2d 693 (7 Cir.
1970); Matter of Merced, 14 I&N Dec. 644 (BIA 1974); Matter of Gallares,
14 I&N Dee. 250 (BIA 1972); but see Nichglas v. INS, 590 F.2d 802 (9
Cir. 1979); Petition of Guerrero Morat6s,..612 F.Supp 1328 (D. Mimi.
1981). 2
-

Operations Instruction 103.1(a)(1/00 provides in pertinent part:
• The district director may, in his discretion, recommend consideration of deferred
action, an act of administrative choice to give some cases lower priority and in no way an
entitlement, in appropriate cases. (Revised)
The deferred action category recognizes that the Service has limited enforcement
resources and that every attempt should lie made 'administratively to utilize these
resources in a manner which will achieve the greatest impact under the immigration
laws. . . .
....
If the district director oeternunes that a recommendation for deferred action should
be made, it shall be made to the regional commissioner concerned on Form G-3I2, which
shall be signed personally by the district director, and the basis for his recommendation
,shall be set tom therein specifically.
2 The Operations Instruction was revised subseqUent to the decisions in Nicholas v.
INS and Petition of Guerrero-Morales, supra. See Wan Chung Wen v. Ferro, supra.
..

349.

Interim Decision #2930
Authority for a grant of deferred action status appears only in the
Operations Instructions. It is mentioned nowhere in the statute or the
regulations and is simply the result of an administrative policy to give
low priority to the enforcement of the immigration laws in certain cases. 3
See Zacharakis v. Howerton, supra. Consequently, the prosecutorial
discretion exercised in granting deferred action status is committed
exclusively to the Service enforcement officials. See Soon Bok Yoon v.
INS, supra; Vergel v. INS, 536 F.2d 755 (8 Cir. 1976); Zacharakis v.
Howerton, supra; Spata v. INS, 442 F.2d 1013 (2 Cir.), cert. denied, 404
U.S. 857 (1971); Discaya v. INS, supra. Inasmuch as deferred action
status is a function of the District Director's prosecutorial authority,
neither the immigration judge nor the Board may grant such status or
review a decision of the District Director to deny it. See Lopez-Telles v.
INS, 564 F.2d 1302 (9 Cir. 1977); Matter of Merced, supra; Matter of
Gallares, supra; Matter of Geronimo, 13 LW Dec. 680 (BIA 1971).

Furthermore, since the respondent can request deferred action status
at any stage in the proceedings, the immigration judge did not err in
refusing to adjourn the hearing to allow him to pursue that relief. See
lA C. Gordon and H. Rosenfield, Immigration Law and Procedure
section 5.3e(7)(1982); Manantan v. INS, supra. Likewise, the immigra-

tion judge's refusal to continue the hearing until a visa number was
available was proper because he may neither terminate nor indefinitely

adjourn the proceedings in order to delay an alien's deportation. See
Bowes v. INS, 442 F.2d 20 (9 Cir. 1971). Once deportation proceedings
have been initiated by the District Director, the immigration judge may
not review the wisdom of the District Director's action, but must exe-

cute his duty to determine whether the deportation charge is sustained
by the requisite evidence in an expeditious manner. See Lopez-Telles v.
INS, supra; Matter of Geron.itn,o, supra.

In any cane, the fact that the

respondent has an apprdved visa petition does not entitle him to delay
the completion of deportation proceedings pending availability of a visa
number. See Armstrong v. INS, 445 F.2d 1395 (9 Cir. 1971); Manantan
v. INS, supra; Matter of Merced, supra; Matter of Agarwat,
13 I&N
Dec. 171 (BIA 1969). We cowhide therefore that the immigration judge
. did not abuse his disdretion in denying the respondent's motion to
adjourn.

The respondent has argued that the immigration judge's authority to
grant voluntary departure confers on him the power to accord extended
voluntary departure, which he contends is equivalent to deferred action
status. Unlike extended voluntary departure which allows an alien to
remain in this country indefinitely, voluntary departure is only granted
The factors considered in determining whether deterred action status should be granted
are set forth in the Operations Instruction.
350.

Interim Decision #2930
to aliens who have established that they are willing and have the immediate means to depart promptly from the United States. See 8 C. F. R.
244.1. As the respondent notes, the immigration judge is not limited as
to the period of time he may grant for voluntary departure. See
Hernandez-Rivera v. INS, 630 F.2d 1352 (9 Cir. 1980); Matter of
Chouliaris, 16 I&N Dec. 168 (BIA 1977). However, it is well established that the immigration judge may not grant voluntary departure
for an indefinite period of time. See Matter of Anaya, 14 I&N Dec. 488
(BIA 1973), affd sub nom. Anaya-Perehez v. INS, 500 F.2d 574 (5 Cir.
1974); Matter of Chamizo, 13 I&N Dec. 435 (BIA 1969). Furthermore,
jurisdiction to grant extended voluntary departure, as well as deferred
action status, lies solely with the District Director. See 8 C.F.R. 244.2;
Manantan v. INS, supra, Matter of Anaya, supra. The respondent's
argument is therefore without merit. •
Finally, we conclude that the immigration judge did not abuie his
discretion in declining to grant the respondent 2 years for voluntary
departure as requested. The usual period of time allowed for voluntary
departure is 30 days. See Matter of M-, 4 UN Dec. 623 (BIA 1952).
Taking into consideration the facts that the respondent has a lawful
permanent resident wife and a United States citizen child and is the
beneficiary of an approved visa petition, we find that the period of over
5 months granted by the immigration judge was more than adequate.
Accordingly, the appeal will be dismissed.
ORDER The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order
and in accordance with our decision in Matter of Choutiaris, supra, the
respondent is permitted to depart from the United States voluntarily
within 30 clays from the date of this order or any extension beyond that
time as may be granted by the District Director; and in the event of his
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

351