MArm a OL S—

In DEPORTATION Proceedings
A-1138079
Decided lyy Board May 5, 1961
Deportability—Subversive organization—Membership in Socialist Workers Party
ground for deportation under section 241(a)(6).
( 1) Evidence of record establishes that Socialist Workers Party between 1938

and at least February 1547 ad vnoativl ncorthrow of tho Coverntoont of the
United States by force or violence or other unconstitutional means.
( 2 ) Alien who was member of Socialist Workers Party from 1938 to 1955,
whose activities within the Party show that his membership was "meaningful," held deportable under section 241(a) (0) of the 1052 Act.
(3) That Socialist Workers Party is permitted to engage in political activity
in State of Wisconsin which forbids such activity by any organization advocating forcible overthrow of the Government is not controlling in immigration proceeding where determination of deportability is based upon record created at the deportation hearing.
CHARGES :

Order: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251 (a) (6)]—After entry was a member of an organization that advocates or teaches
the overthrow by force or violence or other unconstitutional means
of the Government of the United States. (First charge)
Lodged: Act of 1952—Section 241( .4(6) U.S.C. 1251(a) (6)]—After entry a member of an organization that advocates or teaches the
economic, international, and governmental doctrines of world communism. (Second charge)
BEFORE THE BOARD

DISCUSSION: This is an appeal from the order of the special
inquiry officer requiring respondent's deportation; respondent's application for suspension of deportation was denied on discretionary
grounds. The appeal will he dismissed.
The facts have been set forth in great detail by the special inquiry
officer and need not he repeated_ Briefly, respondent is a 52 year
old single male, a native and citizen of Canada, who has been a
resident of the United States since 1933; he was legally admitted
for permanent residence on June 1, 1940, and has made brief visits
to Canada, since that time. He has admitted that he had been a
member of the Socialist Workers Party from about 1938 to 1955.
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The issue is whether the Socialist Workers Party (Party, hereu tier)
advocates the overthrow of this Government by force and violence
or other unconstitutional means. We find it does.
The special inquiry officer sustained the first charge. He held
that the Party advocated the overthrow of the Gover , ment of the
United States by force or violence or other unconstitutional means
from January 1038 to at least February 1947. The special inquiry
officer sustained the second charge insofar as it related to the advocacy by the Party of the doctrines of world communism. Respondent denies that the Party comes within either of the two charges.
The genesis of the Party was in 1928 when the Communist Party
of the United States expelled the supporters of Trotsky. After
various attempts 1 to find a vehicle of expression and action, these
supporters of Trotsky formed the Party in 1938.

The Party is committed to the theory of Marxism as laid down
by Marx, Engels, Lenin, and Trotsky. In brief, it believes that the
capitalist exploits the wage earner and uses the state as a means
of repressing him; that capitalism must result in unemployment,
war and other problems; and that these problems will become more
intense with the passage of time. The Party believes that a scientific (Marxist) analysis of history reveals that capitalism will be
unable to solve these problems but that they can be solved by socialism, the inevitable and only valid alternative. Socialism contemplates elimination of private ownership of the means of production,
replacing it with state ownership and control. The Party finds
that the obstacle to the flowering of socialism out of the "decay"
of capitalism is the refusal of the capitalist class to give up its
privileges; therefore, the Party urges the vanguard of the workers
to build a strong revolutionary party to seize power, overthrow
capitalism, and replace it with a dictatorship of the proletariat
which will institute the forms of socialism. The Party believes that

after the dictatorship has performed its function and all classes
have been abolished, the dictatorship and the state itself will disappear.
The Party believes that socialism cannot exist in one country
alone, but that it must be established throughout the world, and
until 1940 was a member of the "Fourth International", an international organization composed of parlies in other countries which
follow the same beliefs. The Party quit the international organization in 1940, because such membership was made unlawful, but
is still one in spirit with it,.
I In 1928, the Trotskyites formed the Communist League of America which
merged in 1934 with the American Workers Party and became the Workers
Party of the United States ; in 1936, this Party joined the left wing of the
Socialist Party which expelled it late in 1U5i; the Socialist Workers Party
was then formed.

253

While the Party follows the teachings of Marx, Engels, Lenin
and Trotsky, it is opposed to the Soviet Government insofar as the
Communist Party of the Soviet Union exercises dictatorial control
over the workers of the Soviet Union instead of permitting the
workers themselves to exercise control, and insofar as the Communist Party of the U.S.S.R. believes that socialism can exist in
one country.
We may now discuss the record as to whether the Party advocates
force or violence or other unconstitutional means to institute its
program of socialism.
Respondent's case is that the Party seeks to achieve its aims by
convincing the majority of the need for change. He holds that the
Party dues not advocate the use of force, but expects to use force

because the scientific analysis of history has revealed that as the
proletariat become a real threat to the privileges of the government,
the government will use force to prevent the proletariat from obtaining a legal majority. Also, if the government has been dispossessed, it will use force to regain its privileges.' It seems to us that
this very attempt at justification for the use of force is an admission that the Party advocates the use of force to overthrow this
Government. The change of government by peaceful and legal
means is not barred by the Constitution. Change may be based
upon the will of the people, expressed in majorities, under the

proper forms of law, at the ballot box (Article IV, section 4, Constitution of the United States; see Hopkins v. Duluth, 83 N.W.
536). The Party's certitude that force will nevertheless be used
against it condemns it to look upon parliamentary means as futile
and leaves it dependent upon a program of force and violence.
Refusal by the Party to confine itself to the ballot and to the time
it achieves a formal majority envisions unconstitutional means.
However, we need not rest upon the self-serving statements of the
Party as to the use of force. We will examine other statements
which reveal that force is a positive policy of the Party. Before
we do this, we must determine what effect to give the statements on
this issue in Party literature. This Party literature consists not
only of the official program of the Party, the "Declaration of Principles" and the program of the international organization to which
it belonged, but articles, papers, books, and magazines published by
the Party. The "Declaration of Principles" was the Party's plat2 We understand that the Party rejects violence by individuals,' or partial
uprisings of small groups of armed people (until such time as the Party
engages in a civil war) and that it realizes success can attend its efforts only
if it obtains a substantial number of organized disciplined people to do its
will. We also understand that some members did not personally advocate
violence (although the Party taught that it was inevitable and that power
might be taken by other than democratic means.

254

form and thus can be relied upon as representing the Party's view;
however, a question exists as to whether the other matters can be
relied upon as stating the Party view or whether they presented
points of view which, although of interest to members, were not
necessarily the Party's.
We find that the Party view is stated in Party publications. The
theory that official Party publications were instruments of discussion was specifically rejected by the Party. Trotsky, the leading
theoretician of the Party, advised the majority of the National
Committee of the Party on this very issue in the following terms:
The New Interwati,owa [Party monthly, p. 24] and Socialist Appeal [official
paper, exh. 11, p. 17] are not instruments of the discussion under the control of a special discussion committee, but rather instruments of the party
and its National Committee. In the discussion bulletin the opposition can
ask for equal rights with tne mxiorily, but the official party publications
have the duty to defend the point of view of the party and the Fourth International until they are changed. A discussion on the pages of the official
party publications can be conducted only within the limits established by the
majority of the _National. committee. It in no 30f - evident that arguments are
not necessary. (exh. 13, p. 65, Dec. 26, 1939)
•
Second, if the National Committee finds it necessary to devote one issue of
the New International to the discussion (I don't propose it now), it should
be done in such a way that the reader sees where the party position is and
where the attempt at revision, and that the last word remain with the majority and not with the opposition. • (exh. 13, pp. 65-66, Dec. 26, 1939)

The Party followed the proposed policy (exh. 13, p. 65, footnote).
Our belief that Party policy could have been learned from official
publications of the Party is supported by the fact that members of
the Party did learn in this way. Two witnesses presented by respondent revealed under questioning by counsel for respondent that
their familiarity with the political philosophy of the Party was
obtained through rending the publications of the Party; both these
witnesses mentioned the weekly and monthly journal published by
the Party as source material, and one of the witnesses added the
"available writings of Leon Trotsky and James P. Cannon." 3 Respondent stated that "The Militant," a. Party weekly, expressed the
views of the Party although some articles may not have represented
the Party view. Cannon also stated that articles on current events
in Party publications did not necessarily reflect the view of the
Party but indicated that there was less leeway permitted as to
whether the revolution would be accompanied by force for on this
matter there was greater agreement. Moreover, Cannon stated that
the Party press was used by the Party to secure a correct interpreOne of the founders of the Trotsky movement in the United States, titular
at least during' the period of respondent's
membership at Newark, New Jersey, from 1939-1947.
3

and ideological head of the Pa rty

255

tation of Party policy; it would seem to follow that the press did,
therefore, present the Party view. A Government witness testified
that pamphlets published by the Party represented the views of the
Party except that a minority view could sometimes be published.
We note that apparently ne i ther respondent nor the witnesses had
any problem in determining whether or not th articles they read

represented the Party view. Moreover, our examination of the publications in the record reveals that when something is mentioned
with which the Party does not agree, it is mentioned in a manner
which reveals the superiority of the Party view, and that on matters obviously contrary to the Party policy, which are printed in
the official publications, there is a careful analysis showing the
"correctness" and superiority of the Party line. We therefore, feel

that it is proper to rely upon publications of the Party pre, , as
authoritative expositions of the Party line (Matter of H—,) 3-411,
421).
The literature of the Party contains statements contrary to the
present protestations that force would not be used to achieve the
program of the Party until it met armed resistance. The Declaration of Principles and the Constitution of Party, adopted at its
Foundation Convention in January 1938, in effect until December
1940, and regarded as the "letter of the law" for the Party, states
that it is "an illusion" to believe "that in such a country as tho

United States we live in a free, democratic society in which fundamental economic change can be effected by persuasion, by education, by legal and purely parliamentary methods." The document
continues that "the possibilities for purely legal and constitutional
change are therefore limited to those which fall within the framework of capitalist property and social relations." The same document contains the following statement, "While relying primarily on
mass actions, propaganda and agitation as the means for furthering
its revolutionary aim, the Party will also participate in electoral
campaigns, though at all times contending against the fatal illusion that the masses can accomplish their emancipation through the
ballot box." These expressions are written for mass appeal; they
are not qualified where they appear. They should be taken for the
meaning they openly state. Such expressions by themselves and
especially when considered with the Party belief that the task laid
out by history requires the Party to replace this Government with
a dictatorahip of the proletariat, and the Panty's renouncement of
the role of a critic or passive observer—these matters—coupled with
the failure to clearly reject the use of force, are strongly indicative
that the means of conviction left — force —will be used as a positive
weapon in overthrowing this Government.
Party belief that a peaceful democratic transformation of society
256

is preferable but not probable is persistent, widespread, and is obviously the result of much thought. In 1942, Cannon stated in a careful analysis that while socialism preferred a peaceful transition, it
rejected that possibility for the United States. An article in 1947
in the "Fourth International," the official monthly publication of
the Party, indicates that force is the primary weapon. This article
states that the hypothesis that power can be won through the parliamentary road "is not theoretically excluded in certain exceptional
circumstances," and that "What is important is not how a 'workers'
government is formed, but the kind of action (purely parliamentary or revolutionary) which it undertakes afterwards and the
program it tries to carry out" (emphasis in original). Cannon testified late in 1941 that the Party did not expect to gain power
through elections but nevertheless it expected to take power. In

the spring of 1942, he characterized a "parliamentary project" to
sell the Trotskyite program by advocating that it be made an
amendment to the constitution as "capitulatory, a philistine program
of the crudest kind." The editor of the Party monthly, in an article devoted to an attack of Party philosophical beliefs, makes the
matter-of-fact statement that one of the planks of the "basic program" of the Party is the "rejection of parliamentary road,•and the
article reveals that when he speaks of the revolutionary road it is
in contrast to the parliamentary road (1940). It is interesting that
the editor's statements are made in the bland assumption that concerning these matters a common understanding exists which makes
discussion unnecessary.
Our conclusion that violence is a positive instrument for achieving the Party's program takes into consideration the self-serving
statements that the Party was working to convince the "majority"
of the need for its program. Talk of "majority" is misleading without the realization that to the Party the term is not a number
greater than half, but rather is a highly subjective term describing
a mystical moment which occurs when the Party leaders declare
that the Party is representative of the will of the classes that count
—workers and poor farmers. The subjective - nature of this term
is readily apparent from statements of James P. Cannon, leader and
spokesman of the Party, in answer to a critic. At a federal trial
of the Party letiderhip, Cannon had portrayed the Party as interested in winning the majority of the people of the United States
to its program by education and propaganda. The critic was
against Cannon's failure to have boldly affirmed the Party's belief

in force, in action to "conquer the majority of the exploited and
educate them for the taking of power." To this criticisms of submission to the majority, Cannon replied that the majority support
with which he is concerned was "the real majority whose sentiments
854377-fr,

15

257

are ascertainable in various ways besides the ballot box of the
bourgeoise state." Using the Russian Revolution as an example,
Cannon pointed with approval to Lenin's urging that an insurrection be started against the Russian Government although
some members of his Party did not believe that the Party had a
majority. With obvious approval, Cannon quotes the statement of
Lenin that (to proceed with the insurrection) there need be no
"guarantee in advance that the Bolsinvik Party throughout the
country has received exactly one half the number of votes plus one."
Commenting on the fact that Lenin did not worry about a formal
majority, Cannon concludes that "no revolution ever awaits for
this"; it is enough to have a "real majority" (emphasis in original).
Add to the Party's subjective definition of "majority" the fact
that the Party is convinced that ours is a Government of the minority repressing the majority and that the everyday existence of our
Government is an act of violence against the majority, what does
the Party give itself but a blank check on the use of force?
In view of the inconsistency between the explanation by respondent and Party leaders as to the use of force, and to the written
statements indicating that force must be used as a positive means,
it is pertinent to consider the Marxist attitude to truth. The History of American Trotskyism by Cannon (Pioneer Publishers, New
York, 1944, exh. 14) contains a course of lectures on the Party and
its predecessors. Cannon, a defender of "Bolshevik morality" (exh.
14, p. 254), gave his listeners the following advice (speaking on
the desirability of operating as an open political organization rather
than an underground one) :
... a genuine Bolshevik, even in times of sharpest persecution, tries always
to grasp and utilize every possibility to.function in the open. If he can't say
everything he wants to say openly, he will say as much as he can—and supplement legal propaganda by other methods. (pp. 11-12)

Cannon told his listeners that although he supported Trotsky, he
did not speak up in defense of Trotsky at a Communist Congress
in which the majority opposed Trotsky because,
Frankness among friends is a virtue; in dealing with unscrupulous enemies it is the attribute of a fool. (exh. 14, p. 50)
The lecttires show Cannon stating with pride that in factional
disputes with fellow revolutionaries he concealed the truth and misled his comrades until he deemed the time right for the truth; he
reveals proudly how in a fartinnal dispute, after hi3 faction had
promised to give up its own press, it violated its promise as soon
as possible; and he relates that subsequently when it was forced to
give up its paper, it proceeded to violate the ban "legally." The
importance of this is that Cannon does not reflect his own view but
presents an official view. His lectures, filled with a history of de258

are
recommended in the introduction as filling a need for "advanced
workers * * * willing to" learn, and the book is characterized as one
of the "handbooks of Party builders and organizers in the United
States"; it is also stated that the book offers ample reward to those
who bring "a receptive mind and a willingness to assimilate * * *
the lessons" (Introduction, exh. 14). The recommendation is made
by Joseph Hansen, who was apparently the author of a book on
what the Party stood for and who in 1951 was business manager for
Party papers and spokesman for the Party (exh. 6, "The Militant,"
March 26, 1951, cols. 1 and 6). We note also that Cannon's book
was still offered for sale by the Party as late as 1951 (exh. 6, "The
Militant," December 10, 1951, cols. 1 and 2).
In 1942, Cannon pointed out in an official publication that for the
Party the "moral" aspect of the use of force (sabotage) does not
exist but that the problem is one to be decided only by political consideration; and, he emphasized the importance of cloaking insurrection as a "defcnoirke" action. That deception is an inherent weapon
for the Party, and s not merely accidental to a party official, would
appear from the fact that the program of the international organization of the Trotskyist (Fourth International) rejects traditional
standards of right and wrong. The program states:
ception and violation of promises under a guise of legality,

In a society based upon exploitation, the highest moral is that of the social
revolution. All methods are good which raise the class consicousness of the
'a- eskers, their trust in their own forced; their readiness for self - snerlflee In
the struggle. The impermissible methods are those which implant fear and
submissiveness in the oppressed before their oppressors, which crush the spirit
of protest and indignation or substitute for the will of the masses the will of
the leaders; for conviction—compulsion; for an analysis of reality—demagogy
and frame-up. That is why Social Democracy, prostituting Marxism, and
Stalinism—the antithesis of Bolshevism—are both moral enemies of the proletarian revolution.

(The Party adopted the program of the Fourth International (exh.

14, pp. 252-253; see also p. 99; exh. 11, p. 42).)
In considering respondent's own credibility, it must be noted, in
addition to his self-interest, that on two occasions in about 1948
when respondent was questioned by Service officials in connection
with organizational memberships he did not reveal that he had been
a member of the Socialist Workers Party, although on one occasion he had been specifically asked concerning such membership.
His reason for the concealments is that he did not consider questions on his political beliefs as within the province of a Government
bureau. There is no showing that he revealed this reason on the
-

first occasion, and whether or not he revealed it on the second is
not clear. We note also that respondent's visa application executed
in 1940 fails to show membership in the Party, although information
as to membership in subversive organizations is called for.
259

This Trotskyite attitude toward "truth" and "legality" permits a
proper understanding of Cannon's answer to the selfsame critic, previously mentioned, who also accused Cannon of using subterfuge
when on trial because he told the court that the Party did not
advocate the use of violence except in answer to aggression from
the minority. Cannon's answer to the critic was that he had not

abandoned the principles of the Party but had engaged in a
maneuver made necessary by the fact that the American worker was
not ready for a call to violence at the time and that the talk about
violence would not serve the purpose of the revolutionary vanguard
at a time when it was gathering strength and was threatened with
illegality; Cannon also pointed out that violence should be kept in
the background to be

brought out when it would prove effective.

The Party's attitude to truth must also be considered when evaluating their explanation which attempts to give specialized and uncommon meanings to words like "majority," "revolutionary," etc.
As to "revolutionary," use of which the Party attempts to explain
as expressing the change from one social system to one totally
different, we would point out that in the Party use the word seems
to have had its regular meaning of violent change. For example,
the Socialist Party of the United States also believes in a change
from one social system to another. This fact alone did not make
it a revolutionary party in Trotskyite eyes. It was only the entry
of the Trotskyites into the Socialist Party which gave it a "revolutionary coloration."
In summary then, we find, although the evidence is conflicting,
that violence is a tool in the Party's program of overthrowing
this Government, and that its use awaits not the moment when
those who oppose the Party offer armed resistance, but rather that
time when the leaders feel is ripe for its use. Our conclusion is
based on the written statements of the Party rejecting the parliamentary road; the dogma which guarantees to it that capitalism
is outmoded and that socialism is the only legitimate successor; its
belief that it is acting as an instrument for the good of all humanity
in bringing about socialism; the belief that all means are proper
which bring about such a goal; the cherishing of the example of
the Russian Revolution which overthrew the lawful government;
the dogmatic assumption that force will be used against it and the
necessity of preparing for this eventuality ; the rejection of the
meaning commonly assigned to "majority" and the failure to reject
force as a positive instrument even after 18 of its leaders were convicted for conspiring to advocate the use of force. These facts
-

require the conclusion that the Party advocates the overthrow of

the Government of the United States by force or violence.
The Party also advocates the use of other unconstitutional means.
260

Its rejection of the traditional method of determining what is a
"majority" is the advocacy of an unconstitutional means. It advocates the establishment of "Soviets" as councils representing workers,
soldiers and farmers based on occupational units to represent the
will of the people as opposed to the organs provided for by the
Constitution for this purpose—organs based on majorities, organized territorially; this constitutes an advocacy of unconstitutional
means. It advocates expropriation, the taking of property without
due process and compensation; this likewise is the advocacy of an
unconstitutional means.
We come now to respondent's participation in the Party. The
special inquiry officer has used the years from at least 1938 to 1947
as the period during which the Party advocated the use of force
and violence in overthrowing the Government of the United States.
The year 1947 was selected because the record, in his opinion, did not
establish that the documents containing the aims of the Party were
distributed after 1947. We believe that it would not be improper
to assume that the proscribed teachings continued in the absence of
an express rejection of the use of unconstitutional methods (filar
v. Doak, 61 F.2d 566 (C.C.A. 7, 1932)), but we will deal only with
the period from 1938 to 1947 since if respondent had been a member only during such period or any part of it, his membership
would nevertheless make him deportable. (Galvan v. Press, 347 U.S.
522; Haris-Lades v. Shaughnessy, 342 U.S. 580; Carlson. v. Landon,
342 U.S. 524).
Respondent was a member for the entire period in question or
most of it. He had been a member from the start of the Party
itself, or shortly thereafter. He did not come to the Party as a
stranger to the radical movement; he had been a member of the
Socialist Party from 1936 until he entered the Party. His membership in the Socialist Party existed at a time when there was considerable exploration of the means of achieving socialism. Respondent left the Socialist Party to join one which was established by the
"Convention of Revolutionary Socialists" and which called upon all
revolutionary militants to join them in building the Party into a
"mass revolutionary party." The respondent entered the Party
with knowledge of its literature and had read its literature during
the period in question. He knew that the Party called for a

change in this country's form of government. (Respondent had
three years at the University of Toronto.) He was familiar, at
least in part, with the "Declaration of Prinriplea and the Constitution of the Socialist Worker's Party," "The Founding Conference

of the Fourth International, etc.," "Socialism on Trial," "Defenge
Policy in the Minneapolis Trial," "In Defense of Marxism," "The
History of American Trotskyism," "The Communist Manifesto,"

261

and; in part or whole, with many other booklets on socialism. The
Party used classes, meetings, and its press to secure a correct interpretation of Party policy. Respondent, in addition to being a
reader of the press, attended classes and meetings with regularity
from about once a week to once a month. On two occasions he
addressed the group.
A member of the Party was obliged to accept the policy of the
Party, and upon joining was required to certify that he accepted
the Declaration of Principles and Constitution and agreed to abide
by the discipline of the Party (exh. 8, Article IV, sections 1, 2;
Article IX, pp. 29-30). The respondent's activities are ample proof
that he accepted the obligations of his membership. He was an
active supporter and worker for the Thirty. Tin paid his dues
regularly and made voluntary contributions in considerable amounts
from time to time. He sold publications of the Party, and attempted to recruit a member on at least one occasion. He served
as the treasurer of his branch and was on the Educational Committee. He was also charged with physical maintenance of the
office. He attended conventions of the Party, spending several days
there and attending meetings although he was not a delegate.
The length of respondent's membership, its continuance after 18
leaders of the Party had been convicted for conspiring to overthrow
the Government by force and violence (1941), his educational background, his service to the Party, his familiarity with the literature
of the Party, his attendance at classes and meetings, and his activity establish that the membership was meaningful; and these
factors take his case out of Raw°ldt v. Perfecto (335 U.S. 115) which
counsel believes is applicable (Niukkanen v. MeAlexander, 362 U.S.
390; Galvan v. Prom, supra)'
Counsel contends Llial, there is no evidence that respondent personally advocated proscribed doctrines. It is not our understanding
that such advocacy need be established. However, if personal advocacy need be shown, it is found in this record which reveals
activity, knowledge of Party literature, membership for the purpose of advancing the Party program of political change, and continuance of membership after leaders of the Party were convicted for
having conspired to advocate the overthrow of the Government by
force (Dunne v. United States, 138 F.2d 137, cert. den. 320 U.S.
+Troi'Sei-vIce reprientutive argues that R000ttit (lees not apply where the
charge is based on the Immigration and Nationality Act. We find it unnecessary to consider the argument at this time (see, Matter of 0—, 6-50, 52;
furthermore, the same argument is made in the brief submitted by the
Government in Ga,stelurn- Quinonea v. Ropes, 280 17.2d 824 (0.A. D.C., 1960),
cert. den. 385 U.S. 871, where in a similar situation the court applied Rozooldt
and found the alien deportable, but did not discuss this contention.

202

790; 6-'alvam v. Press, supra, p. 528, citing K jar v. Doak, 61 F.2

566; Greco v. Half, 63 F.2d 863; Matter of 0—, 3-736).
Counsel believes that since the Party is permitted to engage in
political activity in the State of Wisconsin which forbids political
activity by an organization which advocates the overthrow of Government by force and violence, it is improper to find that the Party
is a proscribed organization. The fact that the State of Wisconsin
permits the existence of the Party has been taken into consideration.
It is a factor, but not a controlling one in this federal matter. It
is no more controlling than is the fact that the leaders of the
Party were found to have conspired to advocate the overthrow of
the Government by force. The decision in the case before us must
be made upon the record before us. The record establishes deportability on the charge discussed.
Since we have found respondent deportable on the first charge,
we find it unnecessary to consider the second charge. Deportation
will be ordered only on the first charge.
We have nut discussed the testimony of the Government witnesses or the witnesses of the respondent in detail. The testimony

of the Government witnesses is considered merely corroboratory
of the documentary evidence. Counsel's contention that the Government witnesses were members only at the Party's beginning,
when it was more radical, is not relevant. The record fails to establish any real break with the Party's revolutionary past. Furthermore, proof that the organization. had,changed would not relieve
the alien from liability to deportation (Galvan v. Press, supra).
The testimony of respondent and his witnesses, with the exception
of J—, is touched with self-interest. J—, who was offered as an
impartial expert by respondent, showed confusion as to whether or
not he was a member of the Socialist Workers Party. Member
ship, if it existed, could have been only for a short period of
either some months or perhaps most of 1938. J— exhibited a serious
confusion between the Party and the Socialist Party (a Marxist
Party which does not have a "revolutionary coloration"). In giving
an example of the reliance by the Party on the electoral process,
J— mentioned an election campaign which sought to elect Norman
Thomas. Norman Thomas was the leader of the conservative section of the Socialist Party and was held in low esteem by the
Party. Moreover, J— revealed a lack of definite knowledge about
as important a matter as the Party's affiliation with the Fourth International. J—'s testimony that the Party placed its reliance upon
parliamentary means is contradicted by reasonable, substantial and
probative evidence.
We find no prejudicial error committed by the special inquiry
officer in the conduct of the case. In addition to the oral argu263

ments, the briefs of counsel and the examining officer have been
considered.
Respondent's application for suspension of deportation was denied
by the special inquiry officer on the ground that deportation would
not result in exceptional and extremely unusual hardship. Respondent is single; his nearest family in the United Stites consists
of a sister; he has no dependent family ties in the United States;
he is a skilled cabinet maker; he has assets in excess of $9,000 and
there appears to be no reason why he could not obtain employment
in Canada. We believe the special inquiry officer ruled properly
in this matter. We would also add the fact that the respondent's
continued membership until 1955 in an organization which for a
long period of time advocated the overthrow of the Government
by force and violence and which as far as this record shows has
never repudiated such a policy is a further factor. In this regard,
WA would point, out that respondent's membership continued in the
Party although in 1941 eighteen of its officers were convicted in a
federal court for conspiring to advocate the overthrow of Government by force and violence. (The Service representative argued
that respondent has failed to establish that he would be ineligible
for the issuance of a visa if he applied for one in Canada and
would, therefore, as a native of a contiguous territory be ineligible
for suspension of deportation (section 214(a)). We need not rule

on this.)
ORDER: It is ordered that the appeal be dismissed but that respondent be deported from the United States in a manner provided
by law solely- on the following charge:
Section 241(a) (8), immigration and Nationality Act (8 U.S.C. 1251(a) (6))
—After entry was a member of an organization that advocates or teaches the
overthrow by force, or violence, or other unconstitutional means, of the Government of the United States.

264


Interim Decision #1745

31.81.1.2.8 OF WONG

In Deportation Proceedings
A-12517044

Decided by Board May 10, 1967 and

11.146

$8, 1967

been lawfully admitted for permanent residence and who, during the statutory period,
made 5 or CI short visits to Canada reentering on each occasion on a false claim
of U.S. citizenship, comes within the meaning of Git Poo Wong v. Itmnigration

Respondent, an Applicant for suspension of deportation, who has never

and Naturalization Service, 358 F.28 151 (0..11_ 9, 1986), and, therefore, is not

precluded by such absences from establishing continuity of physical presence
under section 244(a) (1) of the Immigration and Nationality Act, as amended.
Wong v. I. 4 N.E., supra, and Wadman v. I. te N.'S., 329 P.24 812 (C.A. 9, 1961),
are no longer considered by the Board to be limited in scope but binding in all

jurisdictions on the issue of continuous physical presence as required by section 244(a) of the Act, as amended. [Matter of Wong, 10 I. & N. Dec. 513, and
Matter of Jacobson, 10 I. & N. Dec. 782, superseded.]
thsenon :
Order: Act of 1952—Section 241(a) (2) [8 17.S.O. 1251 (a) (2)7—Entered without inspection.
ON BEHALF OF RESPONDENT. Edwards E. Merges, Esquire
902 Norton Building
Seattle, Washington 98104
(Brief Bled)

The case comes forward on appeal from the order of the special
inquiry officer dated. December 5, 1966 denying the application for
suspension of deportation, granting voluntary departure in lieu of
deportation with the further order that if the alien failed to depart
when and as required, he be deported to the Republic of China on
Formosa on the charge contained in the order to show cause.
DISCUSSION AS TO DEPORTABILITY: The respondent is a
36-year-old married male, native and citizen of China, of the Chinese
race. He entered the 'United States at Seattle, Washington on May 6,
1952. At that time, he presented himself for inspection and was admitted as a -United States citizen. He concedes that he was not then a
United States citizen and did not present himself for inspection as
271

Interim Decision *1745
an alien and entered the United States without inspection as an alien.
The charge in the order to show cause is sustained by his admissions.
DISCUSSION AS TO ELTGIETLITY FOR SUSPENSION OF
DEPORTATION: The respondent applied for suspension of deportation under the provisions of section 244(a) (1) of the Immigration
and Nationality Act, as amended October 24, 1962 (P.L. 87-885). The
respondent's parents were both natives and citizens of China who
never resided in the United States. The respondent resided with his
family in Canton, China, until 1948 when he went to Hong Kong
because of the Communist occupation of the Chinese mainland. He
married Sun Chung Yee, a native and citizen of China in November
1947. He arranged for his wife to come to Canada as the wife of a
Canadian Chinese, and since 1959 she has resided in Vancouver, B.C.
They have three children, 16, 6 and 5 years old, respectively. The latter two children were born in Vancouver, B.C. There is evidence that
the wife has been granted amnesty by the Canadian Government and
has been granted a certificate of Canadian citizenship which was also
granted to the oldest child who was born in China (Ex. 11).
In 1955, the respondent became a partner in the Foodway Market,
a grocery store, in which he owns a one - third interest and from which
he realizes about $3,500 a year. He has assets amounting to $9,672.
His wife is not employed. The respondent registered for military service May 26, 1952 but has never been called for military training or
service.
The respondent has established that he has been a person of good
moral character during the seven years preceding his application for
suspension of deportation up until the present time. Inquiry disclosed
no connection with subversive groups. An independent character
investigation failed to disclose any adverse information. National
agency checks were negative. He has submitted affirmative evidence
from persons who have known him since May 1952 until the present
time which vouch for his good moral character. The respondent has
also submitted evidence in the form of receipts for money orders that
he has transmitted funds to his wife in Canada for her support and
support of their children.
The respondent claims his deportation would result in extreme
hardship to himself. He has made his home in the United States for
approximately 14 years. He speaks acceptable English, and is a successful partner in a grocery business which he asserts is worth approximately $5,000. Because of the nature of the partnership, his interest
would not be saleable or marketable to someone else, and he would
suffer considerable financial hardship if deported. The respondent
testified that he is not familiar with the dialect spoken in Formosa nor

272

Interim Decision #1745
could he earn a living if returned to Hong Kong. Although he has
some means, he does not have sufficient financial resources to support
himself in one country and his family in another country over an
extended period of time.
The Chinese quota to which the respondent is chargeable is greatly
oversubscribed, and he could not in the foreseeable future hope to
obtain an immigrant visa. He could not adjust his status by other
means than suspension of deportation. It is concluded that the
respondent, if deported from the United States, would suffer extreme
hardship.
The principal issue concerning eligibility for discretionary relief
is whether the respondent satisfies the statutory requirement that he
must have been physically present in the 'United States for a continuous period of not less than seven years immediately preceding the
date of his application. The respondent's application was submitted
August 19, 1964 and he made approximately five visits to Vancouver,
B.C., Canada, to visit his wife and family from 1959 to January 1961.
Apparently, he has not been absent from the United States since January 1961. Each of these visits was for a, period of short duration.
Upon his return he presented his United States Citizen Identification

Card which he obtained as the result of an application made June 25,
1954 at Seattle, Washington.
Counsel relies upon the decision in Git Foo Wong v. Immigration
and Naturdization Service, 858 F. 2d 151 (9th Cir., 1966), as controlling in the instant case. The special inquiry officer attempts to
distinguish the holding in Git Foo Wong upon the facts. Git Foo
Wong was a Chinese alien who entered the United States illegally in
1951 at about the age of 15 years, falsely claiming to be the son of a
United States citizen. Since that time, he continuously resided in
the United States except that in November 1961 he drove to Mexico
for a sightseeing trip, remaining there about two hours, and was then
readmitted to this country as a, United States citizen. Deportability
was conceded under section 241(a) (1) of the Act of 1952—excludable
at entry under section 212(a) (20)—no immigrant visa.. (We do not
consider the fact that the deportable charge in the instant case is made
under section 241(a) (2)—entered without inspection—a distinguishing factor inasmuch as the circumstances of the reentry in the two cases
are identical.)
The court, relying upon Rosenberg v. Fleuti, 374 U.S. 449 and Wadman v. Immigration and Naturalization Service, 329 F. 2d 812 (9th
Cir., 1964), held that petitioner's visit of about two hours to Mexico
should not be regarded as meaningfully interruptive of his continuous
presencein the United States for about ten years and adhered to the
273

Interim Decision #1745
court's previous holding in W adman that petitioner's brief visit to
Mexico did not bar him from consideration for suspension of deportation as a matter of law. The court quoted from W oilman that the term
"continuous" is no more subject to a hard and fast construction than
is the term "intended"; and that the significance of an absence from
the -United States during that period must be determined under the
standard set down in Fleuti. The court in Git Foo 'Wong refused to
accept the attempt to distinguish the holding in Fleuti from Wadman in that the original entry of Fleuti was a legal one, whereas in
the Git Foo Wong ease, the peitioner's original entry was illegal.
The court held that the statute, section 244 (a) and (b) of the Immigration and Nationality Act, permitting discretionary relief from deportation, was intended to enable the Attorney General to umelioratm
hardship and injustice, and the statute should not be strictly and technically construed so as to frustrate its humanitarian purpose.
We consider that the decision in Git Foo Wong v. Immigration and
Naturalisation Service is on all fours with the instant case and that the
respondent has established continuous physical presence for approximately 14 years. He is, therefore, statutorily eligible for suspension
of deportation. The distinctions drawn by the special inquiry officer
do not strike us as valid. An order granting suspension of deportation
will be entered.
ORDER: It is ordered that the order of the special inquiry officer
dated December 5, 1966 be withdrawn.
It is further ordered that the deportation of the respondent be suspended under the provisions of section 244 (a) (1) of the Immigration
and Nationality Act, as amended.
It is further ordered that if Congress takes no action adverse to the
order granting suspension of deportation, the proceedings be cancelled,
and that appropriate action be taken pursuant to section 244(e) of the
Immigration and Nationality Act, as amended.
It is further ordered that in the event Congress takes action adverse
to the order granting suspension of deportation these proceedings shall
be reopened upon notice to the respondent.
BEFORE THE BOARD

The case comes forward on motion of the Service dated June 8, 1967
requesting that we clarify the scope of our order entered May 10, 1967.
The ease relates to a native and citizen of China, 36 years old, male,
married, who entered the United States at Seattle, Washington on
May 6, 1952 by falsely claiming to be a United States citizen. His Chinese resident citizen :wife resides in Canada and between 1959 and
January 1961 he has visited Canada at least five or six times. On each
274

Interim Decision #1745
return from Canada he falsely claimed United States citizenship and
presented a false United States citizen identity certificate. Deports,bility was established.
The respondent applied for suspension of deportation under the
provisions of section 244 (a) (1) of the Immigration and Nationality
Act, as amended by the Act of October 24, 1962 (P.L. 87-855). The
special inquiry officer, in his order dated December 5, 1906, had found

the respondent otherwise eligible for suspension of deportation except
that the respondent did not have the necessary continuous physical
presence because on the occasion of each return from Canada he entered
upon a false claim of United States citizenship. Upon this basis, the
special inquiry officer distinguished the case of Git Foo Wong v. Immigration and Naturalisation Service, 358 F.2d 151 (9th Cir. 1966).

In our order of May 10, 1967 we declined to accept the distinction
drawn by the special inquiry officer and held that the decision in the
Git Foe Wong v. Immigration and Naturalisation Service, supra, and
its underlying decisions, ITraztman v. Immigration and Naturalisation
Service, 329 F.2d 812 (9th Cir. 1964), and Rosenberg v. Fleuti, 374
U.S. 449 were controlling; that the respondent had established continuous physical presence for more than seven years in the United States,
was statutorily eligible for suspension of deportation and entered
an order granting suspension of deportation pursuant to section
244(a) (1) of the Immigration and Nationality Act, as amended.
The present motion notes that we did not make mention of Matter
of P—, 5 I. & N. Dec. 220, Matter of Wong, 10 I. & N. Dec. 513, and
Matter of Jacobson, 10 I. & N. Dec. 782.1 Matter of P— was overruled
in the case of Savoretti v. United States ea, rel. Pincus, 214 F.2d 314
(5th Cir. 1954), the court holding that the alien did not make an entry
because his arrival in a foreign country was unintentional, involuntary
or wholly fortuitous. Matter of Wong and Matter of Jacobson were
distinguished from .Rosenberg v. Fleuti, 374 U.S. 449, because the
aliens therein had never been lawfully admitted to the United States
for permanent residence and were therefore ineligible for suspension
of deportation under section 244(a) (1) of the Immigration and Nationality Act.
As we pointed out in our order of May 10, 1967, the court, in Git
Poo Wong refused to accept the attempted distinction that the original
entry of Fleuti was a legal one whereas in the Git Foo Wong and the
Wad/man cases the original entry was illegal. The court held that the
statute should not be strictly and technically construed so as to frus2 Matter of P
arose in the Fifth Circuit; Matter of Wong in the Ninth Cir—

cuit and meter of Jacobson in the Fifth Circuit.

275

Interim Decision #1745
trate its humanitarian purpose of ameliorating hardship and injustice
so as to permit discretionary relief from deportation.
The motion points out that the instant case arises in the Ninth Circuit and its holding may possibly be interpreted as being confined to
that circuit. We did not confine the holding in this case to the Ninth
Circuit and no limitation was set forth in the decision. It has been
our practice where we intend to circumscribe a holding to a particular
circuit, to so indicate. In the present case, after due and deliberate
consideration, we came to the conclusion that there was no longer any
necessity to limit the scope of the TV cgdman and Git Foo Wong decisions. We intended our decision to be binding in all jurisdictions and
to stand as a precedent upon the issue of continuous physical presence
as required in section 244(a) of the Immigration and Nationality Act.
ORDER : It is ordered that the motion be and the same is hereby
denied.

276


Interim Decision #2931

MATTER OF DARYOUSH
In Bond Proceedings Pursuant to 8 C.F.R. 242.2(b)
A-3527148
Decided by Board December 15, 1982
When an alien who has been released from custody applies to the District Director for
amelioration of the conditions of bond pursuant to 8 C.F.R. 242.2(b), the District Director
must state the reasons for his decision.
ON BEHALF OF RESPONDENT: Marilyn E. Park, Esquire
Atlanta Legal Aid Society, Inc.
Dekath County Regional Omce
231 West Ponce De Leon Avenue
Decatur, Georgia 30030
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

On September 24, 1982, the District Director denied the respondent's

request for a reduction in the amount of bond imposed. The respondent
has appealed from that decision. The record will be remanded to the
District Director.
The record reflects that the respondent is a native and citizen of Iran
who entered the United States as a nonimmigrant student on September 6, 1978. On May 7, 1981, he was charged with deportability for
failure to comply with the conditions of his admission, and a bond in the
amount of $2,500 was imposed.' Deportation proceedings have not yet
been completed.
On August 25, 1982, the respondent requested a reduction in the
amount of bond paid. The District Director responded in a letter on
September 24, 1982, in which he determined that thetamd should remain

in effect at the same amount. The District Director stated that the
respondent's request was denied because it did "not merit the favorable
exercise of discretion. . ."
According to 8 C.F.R. 242.2(b), following the initial determination
regarding custody made by the District Director, an application by an
alien for release from custody or for amelioration of the conditions of
It appears from the record, however, that the respondent was released upon posting
bond in the amount of $1,000 on May 8, 1981.
352

Interim Decision #2931
release may be submitted to the immigration judge. However, if the
alien has been released from custody, such application must be made to
the immigration judge within 7 days. Thereafter, it may only be made to
the District Director. See Matter of Chew, 18 I&N Dec. 262 (BIA
1982); Matter. of Sio, 18 I&N Dec. 176 (BIA 1981); Matter of Vea,
18 I&N Dee. 171 (BIA 1981). 2
C.F.R. 242.2(b) further provides that when an immigration judge
renders a decision in respect to custody, his determination must be
entered on a Form 1-342 and be accompanied by a memorandum as to
the reasons for the determination. Although the regulation contains no
such provision relative to a similar decision by the District Director, we
find that it is also necessary for the District Director to state the reasons for his determination. A meaningful review of the decision by the
Board is impossible unless the District Director indicates the basis for
, his conclusions. We therefore conclude that in rendering a determination on an application for amelioration of the conditions of bond pursuant
to 8 C.F.R. 242.2(b), the District Director must state the reasons for his
decision. Ina.smuch as the District Director failed to explain the rationale for his determination in this cast, the record will be remanded for
the entry of a new decision.'
ORDER. The record is remanded to the District Director for the
entry of a new decision.

2 When either the iminigration judge or the District. Director renders a decision on the
application, the alien must be notified of his right to appeal the decision. Upon the filing of
a notice of appeal, the District Director is required to immediately transmit to the Board
all records and information pertaining to the determination from which the appeal has
been taken. See 8 C.F.R. 242.2(b).
We note in this regard that an alien generally should not be detained or required to
post bond unless there is a finding that he is a threat to national security or a poor bail
risk. See Matter of Patel,, 16 I&N Dec. 666 (BIA 1976). A decision regarding the amount of
bond to be imposed should be based on an objective evaluation of the factors presented.
See Matter of Patel, supra; Matter of San Martin, 15 I&N Dec. 167 (BIA 1974); Matter of
Moise, 12 I&N Dec. 102 (BIA 1967); Matter of S-Y-L-, 9 I&N Dec. 575 (BIA 1962). In
determining whether or not the respondent's bond should be reduced, the District Director should therefore address himdelf to the pertinent facts and indicate howthei warrant
the amount of bond imposed.

353


Interim Decision #2263

MATTER OF HARUTUNIAN

In Section 245 Proceedings
A-19230396

Decided by Regional Commissioner February a, 1974
L & N. Dec. 323 (1948), for determining
deportability as a person who has become a public charge (a determination
predicated on events which have already taken place), is inapplicable to a
determination of excludability under section 212(aX15) of the Immigration
and Nationality Act, as a person likely to become a public charge (a determination predicated on an opinion as to the likelihood of future events).
(2) A determination as to the likelihood of a person becoming a public charge
within the meaning of section 212(a)(15) of the Act should take into consideration factors such as an alien's age, incapability of earning a livelihood, a lack
of sufficient funds for self-support, and a lack of persons in this country willing
and able to assure that the alien will not need public support.
(3) Applicant, who is 70 years old, who lacks means of supporting herself, who
has no one responsible for her support, and who expects to be dependent for
support on old-age assistance is ineligible for a visa under section 212(aX15) of
the Act, as likely to become a public charge, even though the state from which
she will receive old-age assistance does not permit reimbursement. Therefore,
she is ineligible for adjustment of status under section 245 of the Act, as
amended.
(1) The test set forth in Matter of B—, 3

ON BEHALF OF APPLICANT: Emanuel Braude, Esquire
215 W. 5th Street, Suite 910
Los Angeles, California 90013

The District Director found the applicant ineligible for adjustment of status and certified this matter to the Regional Commissioner for review pursuant to 8 CFR 103A.
The applicant, a female native of Turkey, is now stateless. She
resided in Roumania from 1931 to 1970. For the reason conditional

entry visa numbers were not available, she was paroled into the
United States in September 1970.
The applicant submitted the instant application on October 5,
19'72 seeking status as a permanent resident under the provisions
of section 245 of the Immigration and Nationality Act, as
amended, as a nonpreference immigrant. During the interview
conducted on May 24, 1W3 in conjunction with her application, it

583

Interim Decision #2263
was determined that she had been granted "old age assistance" by
the California State Department of Social Welfare upon her
arrival in the United States and that her monthly grant was
increased from $204.00 in November 1972 to $209.00 in December
1972.
The District Director stated in part that the applicant has been
on welfare since her arrival in the United States in September
1970 and denied the application on June 1, 1973 reasoning that she
was excludable under section 212(a) of the Act which provides in
pertinent part as follows: "Except as otherwise provided in this
Act, the following classes of aliens shall be ineligible to receive
visas and shall be excludable from admission into the United
States: ... (15) Aliens who, in the opinion of the consular officer at
the time of application for a visa, or in the opinion of the Attorney
General at the time of application for admission, are likely at any
time to become public charges...."
Counsel submitted a brief in response to the Notice of Certification (Form I-290C) for the Regional Commissioner's consideration
wherein he stated that the "welfare" the applicant receives was,
and is "old age assistance, a form of categorical aid." Counsel
added as follows:
There is no provision in the laws of the State of California requiring
repayment of old age assistance benefits of the type received by Haigouhi A.
narntunian (California Welfare and Institutions Code Sec. 12000, et seq., and
County of Alameda v. Janssen, (1940), 16 Cal. 2d 276, 283, 106 P2d 11), nor is
there any provision in the laws of the State of California which provides for a
charge to be made against the recipient of such aid as was received by
Haigouhi A. Harutunian, except where the recipient subsequently acquires
property (California Welfare and Institutions Code Sec. 17403). (Amended
Finding of Fact No. 8, Emanuel Braude v. United States of America, Civil No.
68-1973-EC).
The term 'public charge,' as used in the exclusion provisions of the Immigration and Naturalization Act (8 U.S.C. 1182(a)(15)), ... is to be defined in the
same way as the phrase 'public charge' is used in the deportation sections of
the Immigration and Naturalization Act. (8 U.S.C. 1251(a)(8)). (Amended
Conclusion of Law No_ 1, Emanuel Braude v. United States of America, supra).

Therefore, the definition of 'public charge' used in the Immigration decision
Matter of B—, 3 L & N. Dec. 323, (B IA, 1948), controls this case. (This decision
was approved by the then Attorney General of the United States, 3I. & N.
Dec. 227.)
Counsel's contention that "There is no provision in the laws of the State of
California for repayment of old age assistance of the type received ..." by the
applicant, is not free from dispute. While that statement appears to be true
with regard to the individual who is the recipient of such assistance, in a
decision dated December 12, 1973 by the Supreme Court of California (Steoap
v. Superior Court of Sacramento County), the Court held that the state law
requires the adult children of a recipient of public assistance under California's Old Ave Security Law to reimburse the county to the extent of their

584

Interim Decision #2263
ability. However, for the reasons indicated below, this issue is not pertinent to
the decision in the instant case.
The term "public charge" appears in sections 212(a)(15) and 213 of the
Immigration and Nationality Act, as amended. That term also appeared in
section 19(a) of the Act of February 5, 1917 which provided grounds for
deportation.
The counsel for the applicant cites as persuasive the leading administrative
decision stating the essential elements of proof of deportability for becoming
a public charge within 5 years after entry, Matter of B—, 8 I. & N. Dec. 823
(Acting Attorney General, 1948). He also cites an unreported lower court
decision interpreting a public charge bond, Emanuel Braude v. United States,
C.D. Cal., Civ. No. 68-1973-EC, May 15, 1970. His determination rests on the
proposition that the term "public charge" should be defined the same way
wherever it appears in the Immigration and Nationality Act, namely in
Sections 212(aX15), 213, 241(a)(8); (8 U.S.C. 1182, 1183, 12511
Matter of 13—, supra, states that where the alien received public support he
is deportable only if
1. The state by law imposes a charge for the services rendered, thereby
creating a debt, to be paid by the alien or other designated persons,
2. the authorities have made a demand for reimbursement,
3. there was a failure to repay.

Braude expressed doubt concerning the soundness of Matter of
B—. However, in the light of that administrative interpretation
the court held that a bond provision guaranteeing that an alien

immigrant would not become a public charge was not breached
when the alien received old age assistance in California, since
there was no obligation under California law to repay.

Applying the deportability standard contained in Matter of B—
to the case under consideration, the Counsel for the applicant
finds, as the court did in Braude, that under California law there is
no provision for a charge to be made against the recipient of old
age assistance, and he concludes that an alien dependent for
support on old age assistance is not thereby rendered ineligible for
a visa.
Matter of B— defines deportability for having become a public
charge after entry. But its appraisal of the deportation statute is
not necessarily controlling in relation to the provisions for exclu-

sion. While the exclusion and deportation statutes both refer to

aliens who become a public charge, it does not follow necessarily
that Congress intended that the same criteria be applied in both
situations. The exclusion statute deals with aliens seeking to enter
and who must satisfy detailed qualitative requirements. The
deportation statute dislodges an established residence.
The purpose of all rules for the interpretation of statutes is to
give effect to the legislative intent. There is no invariable rule for
the discovery of that intention. United States v. American Tru,c1cing Associations, Inc., 310 U.S. 534, 542 (1940); 82 C.J.S., Statutes,
585

Interim Decision #2263
Sec. 311. While it may normally be assumed that identical words
used in different parts of the same statute are intended to have an
identical meaning, this assumption readily yields when the legislative intent requires variant meanings in different contexts.
It is not unusual for the same word to be used with different meanings in the
same act, and there is no rule of statutory construction which precludes the
courts from giving to the word the meaning which the legislature intended it

should have in each instance. Atlantic Cleaners & Dyers, Inc. v. United States,
. 286 U.S. 427,433 (1932).
Words generally have different shades of meaning, and are to be construed if
reasonably possible to effectuate the intent of - the lawmakers; and this
meaning in particular instances is to be arrived at not only by a consideration
of the words themselves but by considering, as well, the context, the purposes
of the law, and the circumstances under which the words were employed,
Vermilga43rown Co. v. Connell, 335 U.S. 377,386 (1948).

The exclusion and deportation statutes embodying the term
"public charge" have been on the statute books for over 80 years
in essentially the same form. Act of March 3, 1891, secs. 2, 11; 26
Stat. 1084, 1086; cf. Act of August 3, 1882; 22 Stat. 214. The
accepting of a bond promising, in consideration of an alien's
admission, that he will not become a public charge apparently had
its origin in administrative practice earlier than 1903—Act of
March 3, 1903, Sec. 26; 32 Stat. 1220. The present language of
Section 213 has been in the law without essential variation since
1907. Act of February 20, 1907, Sec. 20; 34 Stet. 907.
Regarding deportability, there are no significant comments in
the legislative history. Matter of B
went unmentioned in the
1950 and 1952 congressional reports accompanying the Act. An
effort to enlarge the class of deportable aliens confined in public
institutions by adding a new class to the Act, Section 241(aX3), 8
U.S.C. 1151(aX3), appears to have been ineffective as the result of
last minute floor amendments to the legislation. Matter of Kenyaski, 10 I. & N. Dec. 159 (BIA 1963).
The stages in decisional interpretations of the deportation statute, culminating in Matter of B supra, are instructive;
—

1. The words "public charge" had their ordinary meaning, that is to say, a
money charge upon or an expense to the public for support and care, the alien
being destitute. Ex parte Kichmiriantz, 283 F. 697, N.D. Cal. 1922; In re
Nunez, 18 F. Supp. 1007, S.D. Ca1.1937, reversed on other grounds, 93 F.2d 41.
2. The alien had not yet become a public charge, even though he personally
was destitute and his care and support were being paid for by public funds, if
there existed close relatives, ready, willing and able to pay the bill, but the
appropriate government agency had failed to submit any bill. Ex parte
.achmiriants, supra; Brugnoli v. Tod, 300 F. 913, S.D.N.Y. 1923, affirmed 300
F. 918; Donatello v. Commissioner, 4 F.2d 808, E.D.N.Y. 1925; Nocchi v.
Johnson, 6 F2d 1. (CA. 1. 1925); Ex parts Orzechowska, 23 F. Supp. 428, D.
Ore. 1938.

586

Interim Decision #2263
3. The alien had not become a public charge where the alien's mother had
offered to make reimbursement, but under state law payment could not be
accepted for maintenance and treatment of the institutionalized alien. Matter
of V—, 2 I. & N. Dec. 78 (B IA 1944).
4. The alien had not become a public charge where the circumstances were
like those described in 3, above, except that no one had offered reimbursement. Matter of B—, supra, 3 I. & N. Dec. 323 (Acting Attorney General 1948).

In these four steps we observe a complete reversal of emphasis
on the importance of the factor of ability to make reimbursement:
1. No one could pay—deportable.
2. No one had paid, but a relative could —not deportable.
3. No one had paid; a relative, though not obliged to, was willing—not
deportable.
4. No one could pay and no one was obliged to—not deportable.

Even though the burden in cases 3 and 4 above falls on the
taxpayers, there are cogent reasons for inferring a legislative
intent (bearing in mind a resident alien's stake in this country) to
construe the deportability provision favorably toward the alien. Cf.
Yamataya v. Fisher, 189 U.S. 86 (1903); Fong Haw Tan v. Phelan,
333 U.S. 6 (1948); Wong Yang Sung v. McGrath, 339 U.S. 33 (1950);
.Cwong Hai Chew v. Golding, 344 U.S. 590 (1953); Rowoldt v.
Perfetto, 355 U.S. 115 (1957); Rosenberg v. Fleuti, 374 U.S. 449
(1963); INS v. Errico, 385 U.S. 214 (1966); Woodby v. INS, 385 U.S.
276 (1966). These and other cases have permeated the deportation
statutes, both substantive and procedural, with a rule of strict
construction. Cf. Gordon & Rosenfield, Immigration Law and
Procedure, Sec. 4.1c.
The legislative history of the exclusion statute, Section
212(aX15), is somewhat more revealing of congressional intent.
Mention has been made of the early adoption of the term "public
charge". In 1915 the Supreme Court ruled in Gegiow v. Uhl, 239
U.S. 3, that immigrants destined to a particular city were not

excludable as persons likely to become a public charge on the basis
of lack of job opportunities there. The court ruled that the

exclusion ground rests on "permanent personal objections" irrespective of economic conditions. In order to nullify this restrictive
interpretation of the statute Congress amended the exclusion
section when it reenacted it in the Immigration Act of February 5,
1917 by relocating the phrase in question, moving it away from
"paupers", etc. S.Rep. 352, 64th Cong., 2d Sess., April 17, 1916.
Several courts promptly questioned the efficacy of the amendment
and affirmed the interpretation that a "person likely to become a
public charge" is one who for some cause is about to be supported
at public expense "by reason of poverty, insanity and poverty,
587

Interim Decision #2263
disease and poverty, idiocy and poverty ...". Ex parte Mitchell, 256
F. 299, N.D.N.Y. 1919; Ex parte Sakaguchi, 277 F. 913, CA. 9, 1922.
The 1950 Omnibus Report of the Senate Judiciary Committee,
preceding adoption of the Immigration and Nationality Act, had
an extensive discussion of persons excludable as likely to become a
public charge. S.Rep. 1515, 81st Cong., 2d Sess., April 20, 1950, pp.
346-350. Noting that courts had given varied definitions to the
phrase, the subcommittee recapitulated the holdings. A relevant
portion, with citations deleted, reads:
The financial status of an alien, although not the only criterion, has been
considered along with other elements.
Thus, an alien who owned a business in this country was held not to be
deportable under the "public charge" provision, even though he was unable to
read English or any other language. An illiterate widow of 70 with only $100
in hand and $1,000 in postal savings in Italy, and with no one obligated to
support her, was excluded as likely to become a public charge.
An alien's physical condition as it related to his ability and capacity for
employment was considered, and the fact that an alien's passage to this
country had been paid by another has been considered evidence, although not
necessarily conclusive evidence, of the alien's ability to care for himself. P.
348.

The mentioned case of the '70-year-old widow is Minuto v.
Reimer, 83 F2d 166, (C.A. 2, 1936). The subcommittee's conclusion,

in pertinent part was:
The subcommittee recommends that the clause excluding persnns likely to

become public charges should be retained in the law. Since the elements
constituting likelihood of becoming a public charge are varied, there should
be no attempt to define the term in the law, but rather to establish the
specific qualification that the determination of whether an alien falls into
that category rests within the discretion of the consular officers or the
Commissioner. P. 349.
In Section 212(a)(15) of the 1952 Act, Congress inserted the
words "in the opinion of (the consul or the Attorney General) with
the manifest intention of putting borderline adverse determinations beyond the reach of judicial review. Cf. Dolenz v. Shaugh-

nessy, 206 F.2d 392, (C.A. 2, 1953).

There is a paucity of interpretive precedent decisions in modern
times. The administrative authorities have adopted the view that,
while economic factors should be taken into account, the alien's
physical and mental condition, as it affects ability to earn a living,
is of major significance. Foreign Affairs Manual, Part HI, Vol. 9,
Note 1 to 22 CFR 42.91(a)(15); Matter of Martinez-Lopez, 10 I. & N.
Dec. 409, 421-423 (AG, 1964).
We have remarked that the deportation statute must be strictly
construed. The rule is otherwise as to exclusion. An unadmitted
alien has no constitutional right of entry into this country. Turner
588

Interim Decision #2263
v. Williams, 194 U.S. 279, 292 (1904); Knauff v. Shaughnessy, 338
U.S. 537 (1950); Shaughnessy v. Mezei, 345 U.S. 206 (1953); Kleindienst v. Mandel, 408 U.S. 753 (1972). Congress has been concerned
almost continuously since 1875 with the quality of prospective
entrants, and the pattern generally has been one of increasing
control. Kleindienst v. Mandel, supra, at p. 761. Contrary to their
attitude in deportation cases, the courts without exception have
sustained Congress' plenary power to make rules for the admission
of aliens and to exclude those who possess characteristics which
Congress has forbidden. Boutilier v. INS, 387 U.S. 118 (1967); The
Chinese Exclusion Case, 130 U.S. 581, 606 (1389); Eleindienst v.

Mandel, supra, at p. 766. With this in mind we consider that it
would be incorrect to interpret "public charge" in Section
212(a)(15) as narrowly as in the deportation section. Everything in

the statutes, the legislative comments and the decisions points to
one conclusion, that Congress intends that an applicant for a visa
be excluded who is without sufficient funds to support himself,
who has no one under any obligation to support him and who,
being older, has an increasing chance of becoming dependent,
disabled and sick. Cf. Minuto v. Reimer, supra.
Nor can there be any doubt that old age assistance is individualized public support to the needy, as distinguished from essentially

supplementary benefits, directed to the general welfare of the
public as a whole. 42 U.S.C. 306.
It is a well established fact that an applicant for adjustment of
status under Section 245 of the Act is in the same posture as to
though he were an applicant before an American consular officer
abroad seeking issuance of an immigrant visa for the purpose of
gaining admission to the United States as a lawfully permanent
resident.
In considering the factors discussed above, it becomes clear that

under the provisions of Section 241(a)(8) the determination of
deportability is made upon the basis of the alien having already
become a public charge; that such determination is predicated on
an event that has actually transpired, thus making demand for
reimbursement, and reimbursement, feasible elements. However
in Section 212(aX15) the determination of excludability is based
upon an opinion of whether the alien is likely to become a public

charge at some future time, a predication which necessarily
precludes the element of reimbursement. Therefore, in our opinion
any alien who is incapable of earning a livelihood, who does not
have sufficient funds in the United States for his support, and has
no person in the United States willing and able to assure that he
will not need public support is excludable as likely to become a
589

interim Decision #2263
public charge whether or not the public support which will be
available to him is reimbursable to the state.
It is our conclusion that an older alien, who lacks means of
supporting herself; who has no one responsible for her support and
who expects to be dependent for support on old age assistance is
ineligible for a visa under Section 212(a)(15) of the Act, as likely to
become a public charge, even though the state from which she will
receive old age assistance may not permit reimbursement.
In view of the above, it is determined that the record establishes
that the applicant is excludable under the provisions of Section
212(aX15). Accordingly, the District Director's decision denying the

application will be affirmed.
ORDER: It is ordered that the denial decision of the District
Director be affirmed.

590


Interim Decision #2579

MATTER OF CARRASCO
In Deportation Proceedings

A-10734282
Decided by Board April 20, 1977
(1) Respondent was admitted to the United States for permanent residence June 7, 1960.
In 1970 he moved to Mexico to reside with his wife in a home he had purchased there.
He commuted from his home in Mexico to his employment in the United States from
1970 until 1974, with the exception of two six-month periods. In 1974 he was incarcerated in the United States following conviction of a violation of 21 U.S.C. 952(a) for the
importation of marihuana into the United States, and was subsequently found deportable under section 241(a)(11) of the Immigration and Nationality Act. The only issue on
this appeal is the immigration judge's denial of respondent's application for relief under
section 212(c) of the Act.
(2) When respondent moved to Mexico and assumed commuter status in 1970, he demonstrated his intent to reside in Mexico and not the United States. In so doing, he
abandoned his domicile in the United States. Since respondent has no domicile in the
United States, he is statutorily ineligible for relief under section 212(c) of the Act.
?a) Matter of Garcia-Quintero, Interim Decision 2366 (BIA 1975), followed.
CHARGES:
Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11))—Alien convicted of the
crime of unlawful importation of marilmana into the United
States in violation of 21 U.S.C. § 952(a)
ON BEHALF OF RESPONDENT: Wallace Heitman, Esquire
725 Mercantile Dallas Building
Dallas, Texas 75201

BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members

In a decision dated November 21, 1975, the respondent was found
deportable as charged, his applications for discretionary relief under
section 212(c) and section 244(e) of the Immigration and Nationality Act
were denied, and his deportation was ordered to Mexico. The respondent has appealed from that decision. The appeal will be dismissed.
The respondent, a native and citizen of Mexico, was admitted to the
United States for permanent residenceThn June 7, 1960. On March 29,
1974, he was found guilty in the United States District Court for the
Western District of Texas for a violation of 21 U.S.C. 952(a), to wit,
having imported marihuana into the United States.
The respondent does not contest deportability or the immigration
1.95

Interim Decision #2579
judge's conclusion that the respondent is precluded from establishing
good moral character under section 101(f)(3) and is thereby statutorily
ineligible for voluntary departure under section 244(e). The only issues
on appeal involve the immigration judge's denial of discretionary relief
under section 212(c) of the Act.
Section 212(c) provides, in pertinent part:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad
voluntarily and not under an order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may be admitted in the discretion of
the Attorney General without regard to the provisions of paragraph (1) through paragraphs (25) and paragraphs (30) and (31) of subsection (a).

Although the statute describes a waiver available to an alien seeking
to enter the United States, we recently held that section 212(c) relief
may be granted in deportation proceedings to a nondeparting permanent resident alien with seven consecutive years of lawful unrelinquished domicile. Matter of Silva, Interim Decision 2532 (BIA
September 10, 1976). See Francis v. INS, 532 F.2d 268 (2 Cir. 1976).
The immigration judge, in denying the application, held that: (1) as an
alien convicted of a marihuana violation, the respondent is statutorily
ineligible for a section 212(c) waiver; (2) the respondent does not have

the requisite lawful unrelinquished domicile of seven consecutive years;
and (3) the respondent does not merit the relief as a matter of discretion.
As an alien convicted of an offense related to the importation of
marihuana, the respondent is inadmissible to the United States under
section 212(a)(23) of the Act. Inasmuch as the statute provides a waiver
to those aliens inadmissible under section 212(a)(1) through (25), (30) and
(31) the respondent is not ineligible for a section 212(e) waiver by reason
of his marihuana conviction.
The second issue presented is whether the respondent has the requisite seven consecutive years of lawful unrelinquished domicile in the
-

United States. The immigration judge found that the respondent had

assumed commuter status during the period from approximately Ontober 1970 to February 1974. Relying on our decision in Matter of
Garcia Quintero, Interim Decision 2366 (BIA 1975) in which we found
-

that a lawful permanent resident who had resided in Mexico and commuted to work in the United States had abandoned his domicile in the
United States, the immigration judge concluded that the respondent
abandoned his domicile in the United States. The respondent admitted
that he had lived in Mexico and commuted daily to work in the United
states for most of the period in question. However, he denies that he
abandoned his domicile in the United States and asserts that he merely
changed his residence to Mexico in order to live with his wife who was
awaiting her immigrant visa.
-

196

Interim Decision #2579
The word "domicile" in section 212(c) refers to the legal concept of
being a domiciliary of the United States. See Matter of GarciaQuintero, supra. Thus, in order for an alien to establish "domicile" in the
United States, he must be physically present here and have the intention of making the United States his home for the indefinite future.
Gilbert v. David, 285 U.S. 561, 509--570 (1615). Once a domicile in
acquired, it is retained until such time as a domicile is established
elsewhere. Garner v. Pearson, 374 F. Supp. 580, 590 (M.D. Fla. 1973).
The fact that an alien has the status of an immigrant lawfully admitted

for permanent residence does not necessarily mean that he intends to
reside here permanently. Saxbe v. Bustos, 419 U.S. 65 (1974).
The question presented in Garcia-Quintero, supra, and presented
here is a question of fact: did the respondent either have the intention to
make his home in Mexico for the indefinite future or lack an intention to
make his home elsewhere. Gilbert v. David, supra. The relevant facts
contained in the record are these: the respondent was admitted for
permanent residence in the United States in 1960, at which time he
acquired a domicile in the United States; he has resided here continously
from 1960 to 1970 and from 1974, when he was arrested, to the present;

his parents and sisters, two of whom are United States citizens, all
reside in the United States; he married a native of Mexico in Texas in
1968; he lived with his wife, who was here unlawfully, in California from
approximately 1968 to 1970; in 1970 he returned to Mexico with his wife
to reside in a house purchased by him prior to his marriage; and application for an immigrant visa was made by his wife in 1972; his employment
has consistently been in the United States; he commuted daily from his
home in Mexico to his work in the United States for the period from
approximately October 1970 to February 1974 except for two six-month
periods when he worked and lived in California and Chicago; his United

States citizen child has resided in the United States with an aunt in
order to attend school here since sometime prior to 1974; he paid United
States taxes on the income earned in 1970 to 1974.
We find the respondent's assertion that he did not intend to remain in
Mexico unconvincing, particularly in light of the fact that he had purchased a home in Mexico, that he lived two years in Mexico before an
application for an immigrant visa was made by his wife, and that he did

not voluntarily return to the United States to reside in 1974 but rather
was arrested and incarcerated. Hence, we conclude that the respondent
in 1970 intended to live in Mexico indefinitely. As a consequence, he
abandoned his United States domicile.
The respondent has not established statutory eligibility for discretionary relief under section 212(c) Moreover, because of the recency of
the conviction, the immigration judge denied the application in the
exercise of discretion. We agree with his decision. In addition to the
197

Interim Decision #2579
factor relied upon by the immigration judge in his denial, the fact that
the respondent was convicted of importing a large amount of drugs,
specifically, 26 pounds, adversely affects his application for discretionary relief. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
Regardless of the enclosed decision, you may be allowed to stay in the

United States because of a recent court ruling if you registered with an
American consul for an immigrant visa before January 1, 1977, and
entered the United States prior to March 11, 1977. The court ruling
relates to the case of Silva v. Levi, 76 C 4268 (N.D. Ill.). Please contact
your attorney or authorized representative or an INS office for further
information.
Irrespectivamente de la decision que se incluye, usted puede estar
autorizado a permancer en los Estados Unidos a causa de una reciente
determinacidn judicial si usted se registrd con un consul American
para una visa de inmigrante antes del primero de Enero de 1977, y entro
a los Estados Unidos previo al 11 de Marzo de 1977. La determinacion
judicial se refiere al caso de Silva v. Levi, 76 C 4268 (N.D. Ill.). Favor de
comunicarse con su abogado, o su representante autorizado o una oficina
del Servicio de Inmigracidn y Naturalization para mas information.

198


Cite as 26 I&N Dec. 806 (BIA 2016)

Interim Decision #3871

Matter of Elvis GUZMAN-POLANCO, Respondent
Decided September 9, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The crime of aggravated battery in violation of the Puerto Rico Penal Code is
not categorically a crime of violence under 18 U.S.C. § 16(a) (2012), but controlling
circuit court law should be followed regarding the question whether conduct such as the
use or threatened use of poison to injure another person involves sufficient “force” to
constitute a crime of violence. Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016),
clarified.
FOR RESPONDENT: Maria del Rosario Garcia Miranda, Esquire, San Juan, Puerto
Rico 1
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Assistant Chief Counsel

Magdalena Ramos,

BEFORE: Board Panel: PAULEY, MALPHRUS, and GREER, Board Members.
PAULEY, Board Member:

In our prior decision in Matter of Guzman-Polanco, 26 I&N Dec. 713
(BIA 2016), we held that a conviction for aggravated battery in violation of
the Puerto Rico Penal Code is not categorically for a crime of violence
under 18 U.S.C. § 16(a) (2012). The Department of Homeland Security
(“DHS”) has moved for reconsideration of that decision. The motion will
be granted so that we may address the DHS’s arguments and clarify our
prior decision, and the record will be remanded for further proceedings.
The DHS first argues that we should reconsider our decision to
withdraw from Matter of Martin, 23 I&N Dec. 491 (BIA 2002), in Matter
of Guzman-Polanco. However, we continue to hold that the Puerto Rico
simple battery statute is too vague to categorically establish a crime of
violence under 18 U.S.C. § 16(a), because it only requires that the infliction
of “injury to the bodily integrity of another” person be “through any means
1

On April 25, 2016, the respondent’s attorney submitted a request to withdraw as
counsel on appeal. The request to withdraw is granted and counsel is permitted to
withdraw as the respondent’s legal representative for all purposes except receipt of this
decision and service of the decision on the respondent. See 8 C.F.R. § 1292.5(a) (2016).

806

Cite as 26 I&N Dec. 806 (BIA 2016)

Interim Decision #3871

or form.” 33 L.P.R.A. § 4749 (2011). We also remain convinced that the
Supreme Court’s decision in Johnson v. United States, 559 U.S. 133
(2010), controls our interpretation of a crime of violence under 18 U.S.C.
§ 16(a) and that it was appropriate to withdraw from Matter of Martin to
the extent that our decision is inconsistent with Johnson.
In Johnson, the Supreme Court held that “the phrase ‘physical force,’
means violent force—that is, force capable of causing physical pain or
injury to another person.” Johnson, 559 U.S. at 140. In Matter of
Guzman-Polanco, 26 I&N Dec. at 716, we withdrew from our decision in
Matter of Martin “to the extent” that it includes within the definition of a
“crime of violence” offenses that do not require violent force. Under the
definition set forth in Matter of Martin, 23 I&N Dec. at 494, a statute that
covers any application of physical force, however slight, that may cause
physical injury would constitute a crime of violence. However, we
continue to conclude that the Supreme Court rejected this definition of a
crime of violence in Johnson, 559 U.S. at 139. More recently, the United
States Court of Appeals for the First Circuit, in whose jurisdiction this case
arises, has rejected our decision in Matter of Martin. Whyte v. Lynch,
807 F.3d 463, 468–72 (1st Cir. 2015), reh’g denied, 815 F.3d 92 (1st Cir.
2016) (mem.).
The DHS also argues in its motion that the use of “indirect means” such
as “poisoning” qualifies as a sufficient “use of force” for purposes of
18 U.S.C. § 16(a). In particular, the DHS takes issue with our discussion in
Matter of Guzman-Polanco, 26 I&N Dec. at 717–18 & n.7, regarding
United States v. Castleman, 134 S. Ct. 1405 (2014), and the examples we
gave in dicta involving whether bodily injury may result without the use of
violent force. In deciding Matter of Guzman-Polanco, we relied on Whyte
v. Lynch, 807 F.3d at 469, which, as noted above, is binding circuit
precedent in this case.
We recognize that there appears to be a split among the circuits on
whether conduct such as the use or threatened use of poison to injure
another person is sufficient “force” to satisfy the “violent force”
requirement in Johnson, and thus whether conduct of this nature would
constitute a crime of violence under 18 U.S.C. § 16(a). Compare Whyte
v. Lynch, 807 F.3d at 469, United States v. Torres-Miguel, 701 F.3d 165,
168–69 (4th Cir. 2012), and United States v. Cruz-Rodriguez, 625 F.3d
274, 276 (5th Cir. 2010), with United States v. Hill, No. 14-3872-cr, 2016
WL 4120667, at *6–7 (2d Cir. Aug. 3, 2016), Arellano Hernandez
v. Lynch, No. 11-72286, 2016 WL 4073313, at *3 (9th Cir. Aug. 1, 2016),
United States v. Rice, 813 F.3d 704, 706 (8th Cir. 2016), and De Leon
Castellanos v. Holder, 652 F.3d 762, 765–67 (7th Cir. 2011). We need not
take a position in this case as to the relevance of United States v. Castleman
807

Cite as 26 I&N Dec. 806 (BIA 2016)

Interim Decision #3871

in the context of a crime of violence under 18 U.S.C. § 16(a), and we note
that the First Circuit declined to address Castleman when it denied the
Government’s motion for rehearing in Whyte v. Lynch, 815 F.3d at 92−93.
Our decision in Matter of Guzman-Polanco should not be read as
attempting to establish a nationwide rule addressing the scope of the use of
force through indirect means, including poisoning. Rather, for our
purposes, circuit law governs this issue unless the Supreme Court resolves
the question. We therefore clarify Matter of Guzman-Polanco in this
regard.
Accordingly, the DHS’s motion will be granted and the record will be
remanded to the Immigration Judge for further proceedings consistent with
Matter of Guzman-Polanco and this opinion.
ORDER: The motion of the Department of Homeland Security for
reconsideration is granted.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

808


Interim Decision #2307

MATTER OF ONYEDIRTA

In Deportation Proceedings
' A-19701496

A-20607204
DecidedIby Board July. 25) 1974
Respondents, who failed to depart within, the time initially granted to depart voluntarily,
subsequently filed a motion to reopen seeking a new grant of voluntary departure. The
Board of Immigration Appeals - has jurisdiction to grant the form of relief sought;
however, in the absence of respondents' demonstration of any compelling reason • or
circumstance for their failure to, depart within the period of time initially granted, the
motion is denied.
CHARGES:

•'

Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9))—Failed to maintain status
(male respondent)
JUL or 191)2- 9ection 241(a)(2) [8

1251(2)(2b —Noiimmigrant —remained

longer than permitted (femal6 respondent)
Lodged: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)J—Nonimmigrant—remained
longer (male respondent)
ON BEHALF OF RESPONDENTS: Martin Held, Esquire
1725 K Street, N.W.
Washington, D. C. 20036

The alien respondents, husband and wife, are natives of Nigeria. In
decisions dated June 6, 1973, the respondents were found deportable by
an immigration judge as nonimmigrants who had remained beyond the
authorized length of their stays. They were accorded the privilege of
voluntary departure; however, they failed to depart from the United
States within the period of time authorized by the immigration judge.
They subsequently filed a motion to reopen the proceedings, seeking
forms of relief over which neither the Board nor the immigration judge
has jurisdiction. The immigration judge denied that motion, and, in an
order dated April 30, 1974, we dismissed the respondents' appeal from
that denial. The respondents have submitted a second motion seeking
reopening. The motion 141 be denied.
The present motion requests reopening for the pnrpose of permitting
the respondents to apply for a new grant of voluntary departure. The
37

Interim Decision #2307
motion is accompanied by a partially completed brief whose preparation
was evidently begun in connection with the respondents' earlier motion
to reopen. The respondents have not directly attempted to justify or to
explain their failure to take advantage of the immigration judge's initial
grant of voluntary departure.
The respondents are not seeking an extension of voluntary departure,
a request which could not properly be entertained by an immigration
judge. See Matter of Albano, 13 I. & N. Dee. 59 (BIA 1968); Matter of
Wong, 13 I. & N. Dec. 258 (BIA 1969). Instead, they desire a new grant
of voluntary departure. An immigration judge does possess the power
to make such a grant, although the departure period must be set by a
district director. Matter of Yeung, 13 I. & N. Dec. 528 (BIA 1970).
Accordingly, we do have jurisdiction to grant the form of relief which
the respondents presently seek.
However, in order to warrant a new grant of voluntary departure, an
alien must demonstrate the existence of compelling reasons or circumstances for his failure to depart within the time originally allotted.
Were we to require less justification on the part of an alien, there would
be little motivation for the alien to depart promptly and the result would
be additional delay in the deportation process. Bee Fan Wan Keung v.
Dee. 156, at
INS, 434 F.2 d 301 (C.A. 2, 1970); Matter of Arao, 13 L &
159 (BIA 19139).
The respondents have not shown any compelling reasons or circumstances for their failure to depart within the period of time initially
authorized by the immigration judge. They have failed to make out a
prima facie case for reopening these proceedings. The motion will be
denied.
ORDER: The motion is denied.

38