MATTER OF P

In DEPORTATION Proceedings
A-8378327
Decider! by Board January 8, 1960

Conviction—Which results in commitment under Federal Youth Corrections
Act sustains deportability under second part of section 241(a)(4) of 1952 act.
in commitment under the Federal Youth Corrections
Act possesses sufficient finality to sustain deportation charge under the second part of section 241(a) (4) which provides for the deportation of twice
convicted aliens without regard to the sentence imposed. (Cf. Matter of
V—, A-8583853, Int. Dec. No. 1005.)

Conviction which results

CHARGE:

Order: Act of 1952—Section 241(a) (4) (8 U.S.C. 1251(a) (4) ]—Couvicted
of two crimes (petty larceny ; transporting stolen automobile).
BEFORE THE BOARD

Discussion : On Juno 1:Ls, 1958, a special inquiry officer directed
the respondent's deportation and this order became final, no appeal
having been taken. The special inquiry officer reconsidered his order
in the light of a subsequent decision of this Board in another case,
but again directed deportation on November 6, 1959, and certified the
case to us for final decision.
The respondent is a 21-year-old unmarried male: native of Russia
and citizen of Belgium, who last entered the United States on
October 2, 1952. Apparently he was ,admitted for permanent residence at that time and had not previously resided in this country.
On April 7, 1957, he was convicted of petty larceny and on August
93, 1957, he was convicted of transporting a motor vehicle, in interstate commerce with knowledge that it had been stolen. In connection
with the latter conviction, the respondent was committed under the
Federal Youth Corrections Act in accordance with 18 U.S.C. 5010(b).
The sole issue to be determined is whether this latter conviction
possesses the degree of finality Which is necessary to support, the
deportation charge.
The special inquiry officer's reconsideration of the respondent's
case arose from our decision in M atier of V , A - 8583853, Int.
Dec. No. 1005, decided June 1, 1959, in which there had also been

conlinitment under the. Federal Youth Corrections Act. That case.
the first clause of S 1251(a) (4) relating to a single
conviction. One of its requirements is it sentence to confinement
(or eon inem en ) in a prison cu. corrective institution for one year.
On the other hand, this respondent's case is within the purview of
the second clause of that statutory provision, and here'there is no
requirement for any sentence to confinement but only that the alien
must have been "convicted of two crimes involving moral turpitude,
not arising out of a. single scheme of criminal misconduct."
In 21/a 7t• of V , .orpra, we reserved decision on the question
of whether there was the required degree of finality of conviction in
cases disposed of pursuant to the Federal Youth Corrections Act,
l•tt we held that the alien was not deportable under the feast clause
of S U.S.C. 1251(a) (4) because a sentence imposed under the Federal Youth Corrections Act, by the terms of the statute, is expressly
stated to be for treatment and supervision and in lieu of the penalty
of imprisonment. Since this respondent's ease comes within the
second clause of 8 U.S.C. 1251(a) (4), the nature and effect of the
sentence is not material and the only question is whether his conviction has the degree of finality necessary to support deportation..
The distinction between the first. and second clauses of 8 U.S.C. 1251
(a) (4) is illustrated by our decision in Matter of T7
7 I. 8: N.
Dec. 577 (1957), in which we held that suspension of imposition of
sentence does not render an alien deportable under the first clause,
and our d e cision in Iri7tt:5;), t C
7 1. Sc.T. Dec. 53f) (1957),
where, we reached a contrary conclusion in a case involving the
second clause of this statutory provision.
In Matter of 0
, supra, we discussed the various categories of
convictions and concluded that under the second clause of 8 U.S.C.
1251(a) (4) a conviction is "final" if it resulted in suspension of the
execution of sentence or in suspension of the imposition of sentence
but not where it resulted in postponement of sentence for further
consideration. In the latter, the matter is still pending actually or
theoretically for the imposition of a sentence. The respondent's
case is not one in which there was a postponement of sentence. Or
the contrary, sentence was imposed on August 23, 1957, and the
respondent was committed to the custody of the Attorney Genera
or his authorized representative until discharged by the Youth Cot
rection Division. Hence, it is clear that in this respect the respond
ends case differs from one in which a conviction was not final 13(
cause of contemplated further action of the court. Here, the cow
imposed sentence on the respondent; there, was no further action fc
the court to take in the future; and the question of the respondent
confinement., treatment, and discharge were entirely matters for tl
Youth Correction Division.
in volved

518

We consider it appropriate to state also that a. basic distinction
exists between the procedure concerning juvenile delinquency (chapter 403, Title-18, 1J.S.C.) and the procedure under the Federal Youth
Corrections Act (chapter ,102). In the former, there is no trial by
jury, no criminal prosecution can be instituted for the a Ile -re,(1 violation of law (18 U.S.C. 50321, and the court does not lied the juvenile
guilty of the offense but only of being a delinquent. Where the
offender is over 18, the trial proceeds in the regular manner. When
there has been a judgment. on a verdict or finding of guilty, the
provisions of the Federal Youth Corrections Act may be invoked if
the offender was under the age of 22 years at the time- of conviction. Hence, there is an actual conviction for the offense and not
merely a finding of delinquency.
In view of the foregoing, we hold that this respondent is deportable on the 'basis of the two convictions mentioned above. For the
reasons stated by the special inquiry officer, we agree that the respondent is not statutorily eligible for voluntary departure. Accordingly, the special inquiry officer's action is approved.
Order: It is ordered that the special inquiry officer's order directing deportation be. and the same is hereby approVed.


Mamma or C-

T—H----

In DEPORTATION Proceedings
A-4355955
Decided 14,i Board August 11, 1958
Evidence—Admissibility of report of neighborhood investigation where maker
of derogatory statement is unavailable to appear at hearing.
Unavailability at hearing of person who made derogatory statement contained
in Service report of neighborhood investigation may affect probative value
but does not bar admissibility of report in evidence on issue of discretionary
relief.
CHARGE:

Order: Act of 1952—Section 241(a) (2)—Remained in the United States
longer than permitted.

BEFORE THE BOARD
1908, following hearing under order
Discussion: On April
to show cause served August 30, 1957, a special inquiry officer

entered an order granting suspension of deportation to the respondent pursuant to section 244 (a) (1) of the Immigration and Nationality Act, and certified the case to the Regional Commissioner,
Northeast Region, for review. On May 23, 1958, the Acting Regional Commissioner eertifiefl the case to this Board pursuant to
8 CFR 6.1(c), with the following memorandum:
I do not agree with the finding that suspension of deportation should be
granted. The alien has no one dependent upon him for support in the United
States with the possible exception of an illegitimate child. His age and length
of residence do not in my opinion justify a finding that deportation would result in exceptional and extremely unusual hardship. The conduct of his personal life falls far short of the standards expected in our society. The application should be denied as a matter of administrative discretion.

Oral argument has been presented by counsel for respondent in
is urged that under all of the facts and circumstances in
the case the testimony of the respondent, which it is alleged is
truthful, should be believed and that maximum relief should be
granted. Service counsel sets forth that insufficient evidence has
been placed in the record for the purpose of determining the respondent's eligibility for the relief he seeks. It is emphasized that
which it

562713-s61--9

105

the burden is upon the respondent to establish that he meets the
requirements.
First, the exceptions of the Regional Commissioner state that the
statutory requirements have not all been met. That issue must be
resolved first. A brief summary of the pertinent facts will be set
forth.
Respondent is a 56-year-old native and citizen of China, who has
lived in the United States continuously since his arrival at the port
of Houston, Texas, in the month of April 1938 as a crewman, intending to reship. Deportebility is not contested
Respondent was married in China and his spouse died in that
country in 1941. He has testified that he has a son, C—C—,
who is living in Shanghai. China. He admits that he is the father
of a daughter, now age 13 years, born out of wedlock as a result of
a relationship with one E de R with whom he had intimate
relations between 1943 and 1946. The child was born in the United
States on May 7, 1944, and her name is E—C—. The record
fails to show that the child has been legitimated. However, the
respondent acknowledges that she is his child. He testified that he
has been voluntarily contributing about $500.00 per year to her support from 1944 to the first part of 1958. There is no corroboration
of this testimony. He alleges that at the present time the child lives
with her grandmother and that he does not know the whereabouts
of her mother. E de R--. Respondent is employed as a butler
earning $150.00 per month and has listed the value of his assets at
$1,750.00. It is conceded that he has been physically present in the
United States for a period of 7 years and that he has no criminal
record. He has no connection with subversive groups. The respondent has lived in the United States for a period of 20 years.
He has been absent from his native country over a long period of
time during which the economic situation in China has changed,
and, in view of his present age, he would experience an exceptional
and extremely unusual hardship should he be deported.
The special inquiry officer, who has heard the testimony, has
found, after weighing and evaluating the evidence, that the respondent has established good Moral character for a period of 7 years.
Service counsel, although not urging that the respondent has failed
to meet all of the statutory requirements for suspension of deportation, complains that the special inquiry officer did not consider all
of the available evidence. He contends that the record in this case
should not only contain a complete report of character investigation
but that all information adverse to the respondent should be clarified by testimony or other evidence and should be considered in
reaching a decision in the case. A report of character investigation
relating to this alien has been identified for the record as exhibit 7.
106

That report, required for the consideration of an application for
maximum relief, was not received in evidence by the special inquiry
officer because such report contained some information derogatory
to the respondent and the person who had given the adverse information was not available for cross-examination. The report also
contained information favorable to the alien (exhibit 7).
The question to be resolved here is one of discretion. We hold
that exhibit 7 is relevant to the issue of discretion and is admissible
for consideration in resolving that issue. Some of the evidentiary
data therein, namely, a sworn statement made by a person who has
not co-operated with the Service and who is unavailable to testify,
must, of course, be considered and weighed and its probative value
under the circumstances must be determined. Concisely, the respondent has been interrogated at length and he has denied the
allegations adverse to his moral character. The special inquiry
officer should determine whether his testimony is credible.
In conclusion, we find that the special inquiry officer should have
received exhibit 7 into evidence, and he should have weighed and
evaluated the probative value of such evidence (in the light of the
c ircumstances under which it was given) in reaching his decision
on the issue of administrative discretion. We will remand the ooze
for further hearing in accordance with the foregoing.
Order: It is ordered that the order entered by the special inquiry officer in this case be withdrawn and that the proceedings be
reopened for further hearing and consideration in accordance with
the foregoing.

107


Interim Decision *1423

MAT= or CAT1DILLO-VILIALOBOB

In Deportation Proceedings
A-8469070
Decided by Board January 16, 1966
A. lawful permanent resident alien, who, following arrest and conviction of a
crime involving moral turpitude In Mexico, thereafter: on nnmerons occasions departed to Mexico on short visits to appear before the clerk of court
in that country to report and to sign the bond book, made Von his returns
from Mexico following such departures entries into the United States within
the meaning of section 101(a) (18), Immigration and Nationality Act, upon
which to predicate a ground of deportation (Rosenberg v. i'leutf, 874 U.S.
449, inapplicable.]•
Cannot:
Order: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)3—Convicted
of crime involving moral turpitude, incest.

The case comes forward on appeal by the trial, attorney from the

decision of the special inquiry officer dated September 14, 1964, ordering that the proceedings be terminated.
The respondents a native and citizen of Mexico, 42 years old, male,
married, last entered the United States on or about January 31, 1963
and was admitted. as a returning resident alien upon presentation of
his Form I-151, Alien Registration Receipt Card. He was returning
after a brief visit with the family that had been involved_ in a criminal matter which will he discussed below. The respondent had been
admitted for lawful residence as a nonquota immigrant on April 10,
1953 and he testified that he hid been entering the United. States
illegally fcir some four years prior to his legal admission. Since his
lawful admission on April 10, 1953, the respondent had made numerous short visits to Mexico, returning each time upon presentation of
his Form 1-151. However, he testified. that he was arrested. in the
month of July 1960 at Jaurez, Mexico, charged with the crime of
incest and was kept in jail for two months. He was then released on
•Affirmed: Caudino-VinaTobot v. Immigration and Naturalization Service,
861 P.2d 829 (CA. 5, 1966):

35

Interim Decision 41423
bond around September 26, 1960 and thereafter reported Weekly to
the office of the clerk of the Second Penal Court, Jaurez, Mexico to
sign the bond book and appeared weekly for a period of two or three
months, thereafter receiving permission to appear not less than once
per month. The respondent continued to report to the clerk's office
in Jaurez to sign the bond book until either November 1961 or
January 1962.
• On: September 27, 1961 in the Second Penal Court, Jaurez, Chihuahua, Mexico the respondent was convicted of the crime of incest
and was sentenced to a term of imprisonment of two years and six
months. On November 22, 1961 the First Penal Branch of the
Supreme Tribunal of Justice of the State of Chihuahua, Mexico dismissed his .appeal from this conviction. A further appeal in the
nature of an application for an "emparo" was made by his lawyer
to a, higher court in Diexico and he testified that the application for
the "amparo" was dismissed on August 24, 1962, a fact which he first

learned from an immigration investigator on February 1, 1963 when
the investigator required him to surrender his Form 1-151. The
respondent testified that since surrendering this document. he has
been unable to go to Mexico to consult with his attorney about any
further action in the criminal case relating to the . conviction for
incest and has not communicated with his attorney in Jaurez, despite
the fact that he knows the attorney's ° address, and does not know the
present status of the case. He has testified that except for the two .
months' imprisonment after his arrest, he has not subsequently
served any imprisonment as a, result of his sentence for conviction of
incest.
In his original order dated June 26, 1063, the special inquiry officor

found the respondent deportable on the charge contained in the order
to show cause. The respondent applied for a waiver nano pro tuna
under section 212(g) of the Immigration and Nationality Act of his
excludability under section 212(a) (9) of the Act, based upon the
claim that his exclusion would result in extreme hardship to his citizen wife and citizen daughter whom, he testified, resided with him
and .were dependent upon him for support. At the hearing the
respondent alleged that his wife 'and daughter were living with him
at 1000 East San Antonio Street, Apartment 16, El Paso, Texas. A
report of investigation with reference to discretionary relief under
section 212(g) was received into evidence pursuant to stipulation,
and counsel for the respondent has declined to make application for
reopening to present evidence that would overcome the adverse matter contained therein (Ex. 7). The report of investigation shows
16

Interim Decision *1423

that the respondent has not lived with his wife for the past 14
months; that she had instituted divorce proceedings in El Paso early
in 1957 but did not complete these proceedings because of lack of
funds; that she and the respondent were reconciled in 1960 and lived
together until March 1962 when they separated.. She stated that the
source of their difficulties was that the respondent had a woman and
daughters in Jaurez, Mexico and spent all of his money on. them.
Apparently this Mexican. family was involved in the incest case. The
respondent's -wife stated that he visited her frequently and gave her a
little money but does not contribute materially to her support; that
she has worked continuously since 1957 and is employed at a restaurant in El Paso, earning $30.00 a week plus tips; that she supports
herself and their daughter as well as her divorced" daughter's baby.
The respondent's wife stated that under the present situation it
would not constitute an economic detriment to her if the respondent
were deported. In the exercise of discretion the special inquiry officer
on the basis of this evidence denied discretionary relief for a nutty
pro tune waiver under section 212(g) or for voluntary departure.
On June 27, 1963, the special inquiry officer ordered that his prior
order and decision entered June 26, 1963, be withdrawn and that the
hearing be reopened for further consideration in the light of the
holding in Rosenberg v. Fleuti, 374 U.S. 449 (June 17, 1963). On
September 14, 1964, the special inquiry officer found that, notwithstanding the respondent's conviction for _incest which became final
on November 22, 1961, he did not make an "entry" on the occasions.that he returned to the United. States" thereafter following brief
visits to Juarez, Mexico at weekly intervals which were for .the
purpose of signing the bond book' in the office of the clerk of thecourt in Juarez and also for the purpose of 'pleasure and to visit
relatives in that -city; that consequently he fell within the purview
of Rosenberg v. Fleuti, supra, and ordered that the 'proceedings
' be
terminated.
The case of Rosenberg v. Fleuti, 374 U.S. 449, 10 Led. 2d 1000,
concerned an alien who was originally admitted to the United States
for permanent residence in 1952 and had 'resided here continuously
except for a brief visit of about a couple of hours in Mexico in 1956
and was 'ordered to be deported on the ground that at the time of
his 1956 return he was excludable under section 212(a) (4) of the

immigration and Nationality Act of 1952 as an alien "afflicted with
psychopathic personality." The Supreme Court felt it was unnecessary to reach the constitutional question raised by the term "afflicted with psychopathic personality," since under section 101 (a)(13) of the Act an innocent, casual and brief excursion by a resident

Interim. Decision #1423
alien outside the borders of the United States mar not have been
"intended." as a departure disruptive of his resident alien status and
therefore may not subject him to the consequences of an "entry" into
the United States on his return. In its decision the Court traced the
earlier cases which had developed a judicial definition of entry -which
bad harsh consequences for the alien, the impact of which was lessened by the cases of Di Pasquale v. Sarsuth, and Del Guereio v.
Delgadalo. 1 The Court pointed out that the holding ofthese cases
was considered by Congress by defining the term "entry" in' section
i01(a) (13) of the Immigration and Nationality Act of 1952, 13

U.S.C. 1101(a) (13) to mean any coming of an alien into the United
States, from a foreign port or place or from an outlying possession,
whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded
as making an entry into the United States for the purposes of the
immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an
Outlying possession was not intended or reasonably to be expected

by him or his presence in a foreign port or place or in an outlying
possession was not voluntary: Provided, That no person whose departure from the United. States was occasioned' by deportation pro,7
feedings, extradition, or other legal process shall be held to be
entitled to such exception.
The Court stated if a foreign trip was innocent, casual and brief,
it is. consistent with those discernible signs of Congressional purpose
to hold that the "departure was not intended" within the meaning
of the ameliorative intent of the exception to section 101(a) (13) of
the Act and ennelmied that it effectuates Congressional purpose to
construe the intent exception to section 101(a) (13) as meaning an
intent to depart in the manner which can be regarded as meaningfully interruptive of the alien's permanent residence. The Court
• further stated that the major factors relevant to whether such intent
can be inferred, is the length of time the alien is absent; another,
1 Di Pasquale v. /Lomita, 158 F.2d 818, involved an alien who took an overnight sleeper from Buffalo to Detroit which was routed through Canada and
the Court held that it could be too ,harsh to impute the carrier's Intent to the
alian, there being no showing that the alien knew lie would be entering Canada; Delgailino v. Carmichael, 332 U.S. 388 involved an alien who upon rescue after his intercostal merchant ship was torpedoed during World War II
• had been taken to Cuba to recuperate before returning to this country and
the Court held that the exigencifts of war and not his voluntary act put the
alien on foreign soil and the Court refused to attribute to Congress a purpose

to make the alien's

right

tititons and capricious.

to remain here dependent on circumstances so for-

.7

Interim Decision 4t1423
the purpose of the visit, for if the purpose of leaving the country is
to accomplish some object which is itself contrary to some policy
reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as
meaningful; and that still another was whether the alien had to procure any travel documents to make his trip since the need to obtain
such dOeurneuts might cause the alien to consider more fully the implications involved in his leaving the country. The Court, observing
that the operation of these possibly relevant factors remains to be
developed gy the gradual process of judicial inclusion and exclusion
held that an innocent, casual and brief excursion by a resident alien

outside this country's borders may not have been "intended" as a
departure disruptive of his resident alien status and therefore may
not subject him to then consequences of an "entry" into the country on
his return:.
In the instant case the respondent was admitted. for permanent
residence on April 10, 1953. On one of his numerous trips 'into
Mexico he was arrested in July 1960, charged with the crime of incest
and was kept in jail for two months.. It may be noted that the type
and length of- this absenee is not the innocent, casual and brief
absence that was present in the Fleuti case. On Septeniber 27, 1961,
he was convicted, his appeal from this conviction was dismissed on
November 22, 1961 and his application for an "amparo" was dismimed. on August 24, 1962. The exact nature and effect 'of an
"amparo," are not set forth by the special inquiry officer. However,
upon the facts, it appears that there exists a final conviction on
September 27, 1961 for the crime of incest. Thereafter, on numerous
occasions the respondent was required by the court in Mexico to
appear before the clerk of the court to report and to sign the bend
book. All these absences of the respondent were as- a result of the
legal criminal pro'ceeding arising out of the commission and conviction of the crime of incest. _
The definition of the term "entry" contained in section 101(a) (13)
of the Immigration and Nationality Act of 1952 provides -that the
"intent" exception shall not be applicable to a person whose departure from the 'United States was occasioned by deportation proceedings, extradition or other legal process. The departures of this
responclent, --whose departures from the United States were occasioned by legal criminal proceedings, appear to fall squarely within the scope of this proviso. Weltoiicludri that the facts and circumstances of this case vary so much from the facts snd 4circnmstances
'

19

Interim Decision *1423
in the Flouti case as to render the holding in that case -inapplicable .2
It is found that the respondent since his conviction on September 27,

1961, for the offense of incest, 11. Crime involving mural turpitude,
has been absent on numerous occasions to Mexico and that his returns
from Mexico constituted entries into the United States. At the time
of his entries into the United States subsequent to his conviction the
respondent was excludable under the immigration laws. The charge
in the order to show cause is sustained.
The respondent has. made application for a MAW pro tune waiver
under section 212(g) of the Immigration and Nationality Act based
upon his citizen wife and child or in lieu thereof for voluntary departure. For the reasons set forth by the special inquiry officer in

order of June 26, 1963, to wit, the failure to establish that his
deportation would result in extreme hardship to his citizen wife and

his

daughter and in view of the fraud and deceit revealed in the testimony of the respondent and his wife as shown by an investigator's

report which showed that they had been separated for the past 14
months instead of living together as represented, together with the
fact that he has been convicted of a crime involving moral turpitude
within the past five years, discretionary relief will be denied.

ORDER: It is ordered that the appeal of the trial attorney from
the order of the special inquiry officer dated September 14, 1964, be
sustained.
It is further ordered that the application for a waiver slum pro
taw under section 212(g) of the ground of excludability of the
respondent at the time of his entry on January 81, 1968, as an alien

who had been convicted of a crime involving moral turpitude to
wit, incest, be denied.
It is further ordered that the application. for voluntary departure
be denied.
It is further ordered that the respondent be deported from the
United States.to Mexico on the charge contained in the order to show
Callal.

'Compare Moller of Abt•Rachtd, Int Dee. No.' 1344; Matter of Gaimaret,
Int. Dee. No 1889; Matter of Hawk:m.1c, Int. Dee. No. 1837.

20-


Interim Decision #1245

MAT= or Di

Fuwx'o

In DEPORTATION Proceedings
A-12008546
Decided by Board September 7, 1962
Respondent's conviction for making false statements in violation of section 100
A(a) of the Unemployment Insurance Act of Canada, as amended, is not a
conviction of a crime involving moral turpitude.
CHARGE:
Order: Act of 1952—Seetion 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry—crime prior, to wit: making false statement in violation
of section 100A of the Canadian Unemployment Insurance Act, and
theft.

The examining dicer has appealed. from the order of the special

inquiry officer terminating proceedings. The issue is whether respondent's conviction for violation of section 106A (a) of the Unemployment
Insurance Act of Canada involves moral turpitude.

The case was before the Board on a previous occasion. On March
19, 1962, the Board ordered proceedings reopened in connection with
the deportation charge for the purpose of obtaining additional information concerning the convictions, and, in connection with the application for relief, to enable respondent to refute derogatory information
in the record concerning his character.
Respondent is a 30-year-old married male, a native and citizen of
Italy who was admitted to the United States for permanent residence
on January 31, 1961, to join his wife, a citizen of the United States.
Respondent has been convicted of crime in. Canada on two occasions.
On October 22, 1959, he was convicted for theft under section 280(a)
of the Criminal Code of Canada for stealing $60 on October 20, 1959.
He was fined $100 and costs, and a jail sentence to a month was
suspended. The American Consul has found that this crime was a
petty offense and consequently its existence did not make respondent
ineligible for the issuance of the visa.
After respondent's admission to the United States, an information
in four counts was filed against him in Canada on February 8, 1961,
76

Interim Decision #1245

charging him under section 106A (a) of the Unemployment Insurance
Act of .Canada with having made false statements on April 26, 1960,
and on May 10, 1960. He was convicted in a magistrates court in

Ontario Province on a plea of guilty to all counts; on March 13,
1961, he was fined $55 and costs of each count. He last returned to the
United States on April 25, 1961.
The record reveals that section 106A of the Unemployment Insurance Act of Canada, as amended, reads as follows:
Every person is guilty of an offense who
(a) in relation to any claim for benefit makes a statement or representation
that be 'mows to be false or misleading or
(b) being required under this Aet or the regulations to furnish information,
furnishes any information or makes any representation that be knows to

be false or misleading. (p. R-7.)

The special inquiry officer decided, both on the basis of the testimony of an expert witness and his own research, that moral turpitude
was not involved because the section does not require a. false statement
to be material, and because a false statement is sufficient for a conviction although it may have only a remote relationship to the obtaining of insurance benefits. The special inquiry officer expressed the
belief that the statute does not require a criminal intent. He found
this fact especially significant because a prior law called for a criminal
intent. The prior law, section 6'T of the Canadian Unemployment
Insurance Act of 1945, stated that the making of the false statement
must be "for the purpose of obtaining any benefit or payment"; section 106A eliminates the language concerning the purpose for which
the false statement is made. The special inquiry officer was also influenced by the fact that a person who had made false statements for
the purpose of defrauding the government could apparently be prosecuted for false pretenses under sections 303 and 304 of the Criminal
Code of Canada which do require criminal intent.
The examining officer contends that the difference in section 106A
and its predecessor is not significant for both laws concern an attempt
to gain a benefit by false or misleading statements. The examining
officer reasons that since another provision of the insurance law provides for the imposition of an administrative penalty where a person
has committed an offense described by section 106A, the institution
of criminal action implies that the actionable statements were material
to the claim for benefits. Reliance is also had upon legislative debate.
At oral argument, the Service representative pointed out that in two
cases involving false claims for unemployment insurance the Board
found moral turpitude has been involved. Matter of L—, 5 I. & N.
Dee. 705 and Halter of D—C—, 6 I. & N. Dec. 488 are cited. Counsel
at oral argument requested that no change be made in the opinion of

77

Interim Decision #1245

the special inquiry officer but did ask that if the Board found moral
turpitude existed, the case be returned to the special inquiry officer for
ruling upon the respondent's request for a waiver under section 212(g)

of the Act.
Comparison between the present law and its predecessor, indicates
that a conviction under the present law may be obtained without proof
that the false statement was made for the purpose of obtaining benefits.
In other words, a conviction can be obtained merely upon proof that
a false statement had been made in connection with a matter relating
to unemployment insurance benefits. An intent to mislead is not required; the only criminal intent required appears to be that there
be knowledge of the falsity of the statement. Since the intent with
which the false statement was made is no longer material, we cannot
hold that moral turpitude is involved in the commission of the offense.
Legislative debate relied upon by the examining officer is general
and inconclusive. Matter of D—G—, supra, concerned a law which
made an intent to defraud "an essential element of the offense". This
element is lacking in the Canadian law in question. Matter of L—,
supra, concerned violation of a California law which made it a crime
to wilf
ully make a false statement or knowingly fail to disclose a
material fact for the purpose of obtaining benefits. The conviction
was under a law which the court of the state had construed required
an intent to defraud.
ORDER: It is ordered that the appeal of the examining officer be
and the same is hereby dismissed.

78


MATTER OF R—

In DEPORTATION Proceedings
A-1472888
Decided by Board June 9, 1960
Pardon—Wisconsin—Restoration of civil rights not a "pardon" within section
241(b) when granted subsequent to 1947 change in Wisconsin law.
Pardon restoring civil rights issued by the Governor of Wisconsin subsequent
to 1947 amendment of State law providing for automatic restoration of civil
rights upon completion of sentence is not a full and unconditional pardon
within meaning of section 24] (b) of the 1952 act.
CHARGE:
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—After entry

convicted of 2 crimes involving moral turpitude, to wit: rape and
adultery.
BEFORE THE BOARD

Discussion: By order dated February 29, 1960, the special inquiry officer directed that the proceedings be terminated and that
the case be certified to us for final decision. The conclusion to
terminate the proceedings is based on a finding by the special
inquiry officer that a pardon issued by the Governor of Wisconsin
on April 17, 1958, restoring civil rights, constitutes a full and unconditional pardon within the provisions of section 241(b) of the
Immigration and Nationality Act. The Service excepts to such
finding and urges that the decision of the special inquiry officer
not be affirmed but that the case be remanded to permit respondent
an opportunity to obtain a full and unconditional pardon.
Respondent is a 49-year-old married male alien, a native and
citizen of Mexico. He testified that he last entered the United
States at Laredo, Texas, on January 8, 1921. On January 9, 1931,
he was convicted in the Municipal Court, Milwaukee, Wisconsin,
for the, offense of rape. On October 6, 1941, he was convicted in the
same court of the crimes of adultery and false swearing. The
charge in the order to show cause is based on the conviction for
rape and adultery.
The pardon restoring civil rights, which the special inquiry officer has ruled is a full and unconditional pardon, mentions the con-

677

victions for rape and for adultery and false swearing, and that
respondent had served the full terms of his imprisonment arid had
been discharged therefrom in 1932 and 1943, respectively. The
pardon recites that respondent was also convicted on March 6, 1952,
in the Milwaukee Municipal Court of the crime of abandonment of
a minor child and thereupon placed on probation for the term of
2 years; that the full term of probation had been served; and that
respondent had been discharged therefrom on March 4, 1954. The
pardon then concludes with the following :
WHEREAS, Pardon is solicited in behalf of the said R—.T—R-- to
restore his civil rights, and it appearing that he has led an upright and honorable life, and conducted himself as a peaceable and law-abiding citizen since
his discharge from probation, and it appearing that he is deserving of executive
clemency ;
NOW, THEREFORE, KNOW YE, That in consideration of the premises, I,
Vernon W. Thomson, Governor of the State of Wisconsin, have restored, and
all civil rights for
by these presents do restore to the said R
J
R
feited by him in consequence of the said offenses or of the said convictions.

-

Our decision in Matter of G
, 4 I. & N. Dec. 73, cited by the
special inquiry officer in support of his ruling, involved a restoration of civil rights by the Governor of Wisconsin on June 26, 1946,
prior to the 1947 session of the Wisconsin State legislature during
which a law was passed providing for the automatic restoration
of civil rights to a person by serving out his term of imprisonment
or otherwise satisfying a sentence. In Matter of G , supra,
we pointed out that prior to this 1917 legislation civil rights
could he restored by a pardon only according to a 1916 opinion of
the Attorney General of Wisconsin. We also mentioned that the
office of the then incumbent Attorney General of the State of Wisconsin, in a communication dated June 10, 1950, stated that the
June 1946 order of the Governor restoring civil rights was in legal
effect a full pardon.
In the instant case, however, the restoration of the civil rights
by the governor occurred after the enactment of the 1947 law
which provides for an automatic restoration of such rights. Further,
according to a letter dated May 29, 1959, to the special inquiry
officer from the Secretary to the Governor of Wisconsin, it would
appear that the pardon issued to the respondent is not an absolute
one but restored his civil rights only. This letter reads in pertinent part as follows:
The application received from Mr. R— was for restoration of civil rights,
was issued on April 17, 1958, only restored his civil rights.
If an absolute pardon is required by your department in order to avoid
deportation, Mr. R should file such an application with this office, and it
will be given prompt attention.
and consequently the pardon which

678

It is obvious from the provisions of section 241(b) of the Immigration and Nationality Act with respect to a full and unconditional pardon that an absolute pardon is required to eliminate a
crime involving moral turpitude as a ground for deportation.
Inasmuch as the pardon issued to the respondent was granted after
the 1947 law providing for the automatic restoration of civil rights
and as it appears that the pardon granted respondent is not an
absolute pardon, it is our conclusion that the two crimes on which
the order to show cause is based have not been eliminated for
deportation purposes. Accordingly, we will remand the case to
the special inquiry officer to afford respondent an opportunity to
make application for a full and unconditional pardon under the
Wisconsin statutes.
Order: It is ordered that the proceedings be reopened in accordance with the foregoing and for such other actions as may be
appropriate.

679


Interim Decision #1475

Kum or

LABIANO

In Visa Petition Proceedings
A 14241316
-

Dedied.by Board April 30, 180
Since the marriage on September 1, 1964, at Reno, Nevada of petitioner and
beneficiary, uncle 'and niece, respectively, is void under section 125.290 of

the Nevada Revised Statutes because within the degree of consanguinity
prohibited by section 122.020 of the Nevada Revised Statutes, approval of
the visa petition to accord beneficiary nonquota status on the basis of that
marriage is revoked.

' The case comes forward on appeal from the order of the District'
Direct w, San. Francisco District, dated January 11, 1965 revoking
the nonquota visa petition previously approved on behalf of the
beneficiary on October 22, 1964 for the reason that the marriage of
the parties, who are uncle and niece, is not valid under Nevada law
and the petition :was approved in error.

The petitioner, a native of the Philippine Islands, a naturalized _
citizen of the United States; 56 years old, seeks nonquota status on
behalf of the beneficiary, a native and citizen of the Philippine
Islands, 23 years old. The parties were married on September 1,
1964 at Reno, Nevada. A prior marriage of the petitioner was
terminated by a decree of divorce in the Superior Court of the State
of California for the City and County of San Francisco on, July
1961.
A sworn statement was taken from the beneficiary by a Service
officer on November 9, 1964. She testified that The petitioner is her
uncle, the brother of her mother, whose maiden name was Mariano.
She stated that her uncle changed his family name when he applied
for naturalization. The petitioner and the beneficiary's mother have
the same common parents, Severo Mariano and Modesto, Paulo.
Section 122.020 of the Nevada Revised Statutes provides: "1. Male
persons of the age of 18 years, and female persons of the age of 16
years, not nearer

kin than second cousins or cousins of the half blood,
200

interim Decision #1415
and not having a husband or wife living may be joined. in marriage."
Section 125.290 of the Nevada Revised Statutes (1957) reads: "The
following marriages, if celebrated within the state, are void without
any decree of divorce or annulment or other legal proceedings: 1. All
marriages which are prohibited b: law because of: (a) Consanguinity between the parties; * * *."
. The petitioner and the beneficiary in the instant case are uncle
and niece, respectively. Their marirage is within the degree of consanguinity prohibited by section 122.020: of the 'Nevada Revised .
Statutes and they do not postess the capacity to enter into a valid
marriage. Under section 125.290 of the Nevada Revised . Statutes

the marriage is void. The parties appear to have beau ignorant of
the provisions of Nevada law but that does not.remedy the defect in
their marriage. The appeal will be dismissed.
missed.
ORDER: It is ordered. that the appeal from the order of the District Director revoking the approval of the visa petition be and the
same is hereby dismissed.

,

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Interim Decision #3964

Matter of Fernando CORDERO-GARCIA, Respondent
Decided October 18, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The crime of dissuading a witness in violation of section 136.1(b)(1) of the California
Penal Code is categorically an aggravated felony offense relating to obstruction of justice
under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(43)(S) (2012). Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018),
followed.
(2) The holding in Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018), may be
applied retroactively.
FOR RESPONDENT: Michael K. Mehr, Esquire, Santa Cruz, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant
Chief Counsel
BEFORE: Board Panel: WENDTLAND, GREER, and O’CONNOR, Board Members.
WENDTLAND, Board Member:

In a decision dated June 27, 2012, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted
of an aggravated felony, denied his application for cancellation of removal
under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2012), and ordered
him removed from the United States. 1 We dismissed the respondent’s appeal
on November 27, 2012, affirming the Immigration Judge’s conclusion that
the respondent was convicted of an aggravated felony because dissuading a
1

The Immigration Judge also found that the respondent was removable under section
237(a)(2)(A)(ii) of the Act, as an alien convicted of more than one crime involving moral
turpitude. In light of our conclusion that the respondent is removable under section
237(a)(2)(A)(iii) based on our retroactive application of Matter of Valenzuela Gallardo,
27 I&N Dec. 449 (BIA 2018), we need not address the other charge of removability. See
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are
not required to make findings on issues the decision of which is unnecessary to the
results they reach.”). However, for purposes of our retroactivity analysis, we will assume
that the respondent is not deportable under section 237(a)(2)(A)(ii) of the Act and that his
removability turns solely on whether he is convicted of an aggravated felony.

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witness in violation of section 136.1(b)(1) of the California Penal Code is an
offense relating to obstruction of justice under section 101(a)(43)(S) of the
Act, 8 U.S.C. § 1101(a)(43)(S) (2012). 2 In addition, we agreed with the
Immigration Judge that the respondent did not meet his burden of showing
that he merits a grant of cancellation of removal in the exercise of discretion.
We subsequently denied a motion filed by the Department of Homeland
Security (“DHS”) to reopen these removal proceedings.
Pursuant to a motion by the Government, the United States Court of
Appeals for the Ninth Circuit has remanded this case for us to address
whether the crime of dissuading a witness in violation of section 136.1(b)(1)
of the California Penal Code is an aggravated felony offense relating to
obstruction of justice in light of its decision in Valenzuela Gallardo v. Lynch,
818 F.3d 808 (9th Cir. 2016). This question will determine the respondent’s
removability under section 237(a)(2)(A)(iii) of the Act and his eligibility for
cancellation of removal under section 240A(a)(3). The respondent’s appeal
will again be dismissed.

I. AGGRAVATED FELONY
Section 101(a)(43)(S) of the Act defines an aggravated felony as “an
offense relating to obstruction of justice, perjury or subornation of perjury,
or bribery of a witness, for which the term of imprisonment is at least one
year.” To establish whether the respondent’s conviction is for such an
offense, we apply the categorical approach by focusing on whether the
elements of section 136.1(b)(1) of the California Penal Code proscribe
conduct that categorically falls within the Federal generic definition of an
offense relating to obstruction of justice. See Mathis v. United States, 136
S. Ct. 2243, 2248 (2016).
We outlined the generic definition of an offense relating to obstruction of
justice in Matter of Valenzuela Gallardo (“Valenzuela Gallardo I”), 25 I&N

2

At all relevant times, section 136.1(b)(1) of the California Penal Code has provided in
pertinent part:
Except as provided in subdivision (c), every person who attempts to prevent or
dissuade another person who has been the victim of a crime or who is witness to a
crime from doing any of the following is guilty of a public offense and shall be
punished by imprisonment in a county jail for not more than one year or in the state
prison:
(1) Making any report of that victimization to any peace officer or state or local
law enforcement officer or probation or parole or correctional officer or prosecuting
agency or to any judge.

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Interim Decision #3964

Dec. 838 (BIA 2012). The Ninth Circuit declined to defer to our definition,
concluding that it was impermissibly vague. Valenzuela Gallardo, 818 F.3d
at 812–13, 823–24. While this appeal was pending, we clarified the generic
definition of an aggravated felony under section 101(a)(43)(S) of the Act,
stating that an offense relating to obstruction of justice
consists of offenses covered by chapter 73 of the Federal criminal code[, 18 U.S.C.
§§ 1501–1521 (2012),] or any other Federal or State offense that involves (1) an
affirmative and intentional attempt (2) that is motivated by a specific intent (3) to
interfere either in an investigation or proceeding that is ongoing, pending, or
reasonably foreseeable by the defendant, or in another’s punishment resulting from
a completed proceeding.

Matter of Valenzuela Gallardo (“Valenzuela Gallardo II”), 27 I&N Dec.
449, 460 (BIA 2018).
We further held that the crime of accessory to a felony under section 32 of
the California Penal Code is an aggravated felony offense relating to
obstruction of justice. Id. at 461. The California accessory statute required
“a violator to aid the principal, with knowledge that the principal has
committed a crime, and with the specific intent to interfere in the principal’s
arrest, trial, conviction, or punishment.” Id. (citing People v. Nuckles, 298
P.3d 867, 870 (Cal. 2013)).
To obtain a conviction under section 136.1(b)(1) of the California Penal
Code, the State must prove that “(1) the defendant has attempted to prevent
or dissuade a person (2) who is a victim or witness to a crime (3) from making
[a] report . . . to any peace officer or other designated officials.” People
v. Navarro, 152 Cal. Rptr. 3d 109, 117–18 (Cal. Ct. App. 2013) (alteration
in original) (quoting People v. Upsher, 66 Cal. Rptr. 3d 481, 488 (Cal. Ct.
App. 2007)). “The prosecution must also establish that ‘the defendant’s acts
or statements [were] intended to affect or influence a potential witness’s or
victim’s testimony or acts.’” Id. at 118 (alteration in original) (quoting
People v. McDaniel, 27 Cal. Rptr. 2d 306, 309 (Cal. Ct. App. 1994)).
According to this California case law, section 136.1(b)(1) requires a
specific intent to interfere in an investigation or proceeding. Where an
individual attempts to prevent or dissuade a victim or witness from making
a report of a crime to a peace officer or other designated official, an
investigation or proceeding would necessarily be either ongoing, pending, or
reasonably foreseeable. In other words, there would be little reason for a
person to try to prevent or dissuade a victim or witness from reporting the
crime to appropriate authorities unless there was an investigation in progress
or one was reasonably foreseeable. We therefore conclude that dissuading a
witness in violation of section 136.1(b)(1) of the California Penal Code is
categorically an aggravated felony offense relating to obstruction of justice
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under section 101(a)(43)(S) of the Act pursuant to the criteria that we
outlined in Matter of Valenzuela Gallardo II, 27 I&N Dec. at 460. 3

II. RETROACTIVITY
The respondent argues that the standard for obstruction of justice we set
forth in Valenzuela Gallardo II may not be applied retroactively to his
conviction, which occurred before our decisions in Valenzuela Gallardo I
and II were issued. Therefore, we must also determine whether the standard
for obstruction of justice we set forth in Matter of Valenzuela Gallardo II can
be retroactively applied to the respondent’s conviction. In this regard, we
recognize the well-established principle that agencies may adjudicate new
rules and apply them retroactively.
[T]he choice made between proceeding by general rule or by individual, ad hoc
litigation is one that lies primarily in the informed discretion of the administrative
agency.
. . . That [an agency] action might have a retroactive effect [i]s not necessarily fatal
to its validity. Every case of first impression has a retroactive effect, whether the
new principle is announced by a court or by an administrative agency. But such
retroactivity must be balanced against the mischief of producing a result which is
contrary to a statutory design or to legal and equitable principles. If that mischief is
greater than the ill effect of the retroactive application of a new standard, it is not the
type of retroactivity which is condemned by law.

SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (citation omitted).
We acknowledge, however, that “[a]s a general rule, ‘[r]etroactivity is not
favored in the law.’” Velasquez-Garcia v. Holder, 760 F.3d 571, 579 (7th
Cir. 2014) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988)). In this regard, at least one circuit has indicated that agency “rules
. . . should be presumed prospective in operation unless Congress has clearly
authorized retroactive application.” De Niz Robles v. Lynch, 803 F.3d 1165,
1172 (10th Cir. 2015) (emphasis added); see also Betansos v. Barr, 928 F.3d
1133, 1143–46 (9th Cir. 2019) (noting that a retroactivity analysis “should be
conducted with ‘the presumption of prospectivity’” where the court has given
deference to our decision pursuant to National Cable & Telecommunications
Association v. Brand X Internet Services, 545 U.S. 967 (2005), but deciding
3
The Immigration Judge found that a violation of section 136.1(b)(1) of the California
Penal Code was not a categorical aggravated felony offense relating to obstruction of
justice, but he applied the modified categorical approach to determine that the respondent’s
conviction was for an aggravated felony. In light of our holding that dissuading a witness
under California law is categorically an aggravated felony, we will not address the
Immigration Judge’s finding in this regard.

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Interim Decision #3964

to apply the decision retroactively (quoting Gutierrez-Brizuela v. Lynch, 834
F.3d 1142, 1144 (10th Cir. 2016))).
However, Congress has “indicate[d] unambiguously its intention to apply
[the aggravated felony provisions] retroactively.” INS v. St. Cyr, 533 U.S.
289, 318–19 & n.43 (2001) (stating that the aggravated felony definition
itself clearly provides that it applies retroactively). In enacting section
101(a)(43) of the Act, Congress expressly stated its intent that “the term
[aggravated felony] applies regardless of whether the conviction was entered
before, on, or after the date of enactment.” Accordingly, in our informed
discretion, we conclude that we may apply our decisions retroactively after
proper consideration of the relevant factors, consistent with SEC v. Chenery
Corp., 332 U.S. at 209 (upholding the agency’s determination, despite its
retroactive effect, and recognizing it as “the product of administrative
experience, appreciation of the complexities of the problem, realization of
the statutory policies, and responsible treatment of the uncontested facts”).
A. Change in Law
Before we decide whether to apply Matter of Valenzuela Gallardo II
retroactively, we must consider whether our holding in that case is a change
in law, which the Ninth Circuit has stated is required before a retroactivity
analysis is necessary. See Olivas-Motta v. Whitaker, 910 F.3d 1271, 1276
(9th Cir. 2018). A “retroactivity analysis is only applicable when ‘an agency
consciously overrules or otherwise alters its own rule or regulation,’ or
‘expressly considers and openly departs from a circuit court decision.’” Id.
at 1277 (quoting Garfias-Rodriguez v. Holder, 702 F.3d 504, 518–19 (9th
Cir. 2012) (en banc)). The Ninth Circuit remanded Valenzuela Gallardo I
for “consideration of a new construction or application of the interpretation”
of obstruction of justice that we had outlined in Matter of Espinoza, 22 I&N
Dec. 889 (BIA 1999), to which the court previously deferred in Trung Thanh
Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011). Valenzuela Gallardo, 818
F.3d at 812–13 (emphasis added).
Not all Board precedents clarifying prior decisions are necessarily
changes in the law. The Ninth Circuit has rejected as “contrary to settled
law” the assertion that “the mere existence of a new published decision on
an issue would always trigger retroactivity analysis.” Olivas-Motta, 910 F.3d
at 1276. Moreover, a new Board precedent that resolves prior, potentially
inconsistent unpublished decisions is not a change in the law, because
“[u]npublished decisions are not precedential and ‘do not bind future
parties.’” Id. at 1278 (quoting Marmolejo-Campos v. Holder, 558 F.3d 903,
909 (9th Cir. 2009) (en banc)).

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As we will discuss in greater detail below, our decision in Valenzuela
Gallardo II openly departed from the generic definition that the Ninth Circuit
previously approved. Our decision also clarified Valenzuela Gallardo I, but
the standard in Valenzuela Gallardo II differs in some respects from our prior
definition. We therefore conclude that a retroactivity analysis is appropriate
in this case.
B. Test for Retroactivity
Next, we must determine the appropriate test for ascertaining whether
Matter of Valenzuela Gallardo II may be applied retroactively. The Ninth
Circuit applies the factors outlined in Montgomery Ward & Co. v. FTC
(“Montgomery Ward”), 691 F.2d 1322 (9th Cir. 1982). Garfias-Rodriguez,
702 F.3d at 514–23 (applying these factors in favor of retroactive
applicability). This test was first set forth in Retail, Wholesale & Dep’t Store
Union v. NLRB (“Retail Union”), 466 F.2d 380, 390 (D.C. Cir. 1972)
(involving a labor dispute before the National Labor Relations Board
(“NLRB”) between a company and union workers).
The Second, Third, Fourth, Sixth, Seventh, and Tenth Circuits also apply
this test. See Microcomputer Tech. Inst. v. Riley, 139 F.3d 1044, 1050 n.4
(5th Cir. 1998) (collecting cases); see also De Niz Robles, 803 F.3d 1177–80
(following the “balancing” test the Tenth Circuit set forth in Stewart Capital
Corp. v. Andrus, 701 F.2d 846, 848 (10th Cir. 1983)). The Eighth Circuit
applies a similar test. Ryan Heating Co. v. NLRB, 942 F2d 1287, 1289 (8th
Cir. 1991). By contrast, the Fifth Circuit weighs “the disadvantages of
retroactivity—frustration of parties’ expectations—against the detrimental
effect of prospectivity—partial frustration of what we have now determined
is the proper statutory interpretation.” Microcomputer Tech. Inst., 139 F.3d
at 1051.
In light of the courts’ overwhelming adoption of the test outlined in
Retail Union (known as the Montgomery Ward test in the Ninth Circuit), we
will employ that test, not only in cases arising in the Ninth Circuit, where we
are bound to use it, but throughout the country. See Matter of J-H-J-, 26 I&N
Dec. 563, 564 (BIA 2015) (acceding to the majority view of the circuits). 4
In addition to considering the desirability of applying the immigration
laws with nationwide uniformity, we must also recognize that the circuit
courts use this test in reviewing decisions from numerous other agencies.
In our opinion, it would therefore be incongruous for us to employ a
different test.
4

To the extent that a court of appeals applies a different test, however, Immigration
Judges and the Board should follow the law of that circuit. See Matter of Anselmo, 20 I&N
Dec. 25, 31 (BIA 1989).

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C. Application
The test for retroactivity requires us to consider the following factors:
(1) whether the particular case is one of first impression, (2) whether the new rule
represents an abrupt departure from well established practice or merely attempts to
fill a void in an unsettled area of law, (3) the extent to which the party against whom
the new rule is applied relied on the former rule, (4) the degree of the burden which
a retroactive order imposes on a party, and (5) the statutory interest in applying a
new rule despite the reliance of a party on the old standard.

Montgomery Ward, 691 F.2d at 1333 (quoting Retail Union, 466 F.2d at
390).
The Ninth Circuit has recognized that the first factor may not be well
suited to the context of proceedings to remove an alien because Retail Union
involved litigation between private parties in labor disputes before the
NLRB. See Garfias-Rodriguez, 702 F.3d at 520–21 (noting that the first
factor often does not favor either side in removal proceedings, where the
Government is always a party); Miguel-Miguel v. Gonzales, 500 F.3d 941,
951 (9th Cir. 2007) (“[T]he first factor is directed towards maintaining an
incentive for litigants to raise novel claims by allowing a litigant who
successfully argues for a new rule to get the benefit of that rule.”). However,
the court has recognized that this factor favors the alien where the agency has
“confronted the problem before, ha[s] established an explicit standard of
conduct, and now attempts to punish conformity to that standard under a new
standard subsequently adopted.” Miguel-Miguel, 500 F.3d at 951 (alteration
in original) (emphasis added) (quoting Retail Union, 466 F.2d at 391).
Those circumstances were not present in Valenzuela Gallardo II, which
was issued after decades of rulings by the Board and the Ninth Circuit
interpreting the aggravated felony ground of removal relating to obstruction
of justice. Moreover, the Ninth Circuit has noted in regard to the first
factor that “any question of unfairness in applying a new rule . . . , such as
surprise or detrimental reliance, is fully captured in the second and third
Montgomery Ward factors.” Garfias-Rodriguez, 702 F.3d at 521. Based on
the circumstances of this case, we agree.
As the Ninth Circuit has stated regarding the question of unsettled law,
The second and the third factors are closely intertwined. If a new rule “represents
an abrupt departure from well established practice,” a party’s reliance on the prior
rule is likely to be reasonable, whereas if the rule “merely attempts to fill a void in
an unsettled area of law,” reliance is less likely to be reasonable. . . . [T]hese two
factors will favor retroactivity if a party could reasonably have anticipated the change
in the law such that the new “requirement would not be a complete surprise.”

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Id. (citations omitted).
The Ninth Circuit has acknowledged that Congress did not clearly define
the generic elements of an aggravated felony offense relating to obstruction
of justice. Renteria-Morales v. Mukasey, 551 F.3d 1076, 1086 (9th Cir.
2008). Since 1997, both the Ninth Circuit and the Board have issued
decisions defining the outer limits of offenses relating to obstruction of
justice. See, e.g., Valenzuela Gallardo, 818 F.3d 808; Trung Thanh Hoang,
641 F.3d 1157; Matter of Espinoza, 22 I&N Dec. 889; Matter of
Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997). Recently, the Ninth
Circuit emphasized that “an ongoing conversation or a back-and-forth
between this Court and the [Board] about the proper interpretation” is an
important consideration in a retroactivity analysis. Betansos, 928 F.3d at
1144. A brief review of these decisions reflects that the discussion between
the Board and the Ninth Circuit regarding this aggravated felony ground has
been ongoing, and the process of defining it has been unsettled, for several
decades.
In Matter of Batista-Hernandez, 21 I&N Dec. at 961, we concluded that
the offense of accessory after the fact in violation of 18 U.S.C. § 3 (Supp.
V 1993) “clearly relates to obstruction of justice,” notwithstanding the fact
that the statute lacked an element of an ongoing investigation or proceeding.
Two years later, in Matter of Espinoza, we held that misprision of felony
in violation of 18 U.S.C. § 4 (1994) was not an offense relating to
obstruction of justice. The Ninth Circuit has repeatedly deferred to a generic
definition that it drew from Matter of Espinoza, which, according to the
court, required interference with an ongoing proceeding or investigation,
although the decision did not itself articulate such a requirement and
Batista-Hernandez clearly did not apply one. 5 See Trung Thanh Hoang, 641
F.3d at 1164; Renteria-Morales, 551 F.3d at 1086–87; Salazar-Luviano
v. Mukasey, 551 F.3d 857, 861–63 (9th Cir. 2008). 6 However, one judge in
5

We did note the absence of an ongoing criminal investigation or trial in Matter of
Espinoza. However, we made the more general observation that misprision of felony does
not constitute “obstruction of justice” because “it lacks the critical element of an
affirmative and intentional attempt, motivated by a specific intent, to interfere with the
process of justice.” Matter of Espinoza, 22 I&N Dec. at 896. In identifying the critical
element of specific intent, we did not state that an ongoing criminal investigation or trial
was always required, but we subsequently clarified the matter in Valenzuela Gallardo I,
25 I&N Dec. at 841–42.
6
If we were to assess the generic definition of an aggravated felony offense relating to
obstruction of justice when the respondent entered his guilty plea in 2009, we would still
conclude that the law was unsettled at that time. The Ninth Circuit precedent had not yet
analyzed our 1997 decision in Matter of Batista-Hernandez, so a respondent who
potentially faced this aggravated felony charge in 2009 would have had to address Matter
of Batista-Hernandez and could not merely rely on Renteria-Morales and Salazar-Luviano.

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Interim Decision #3964

Trung Thanh Hoang dissented from the majority’s use of that definition,
contending that the court was not limited to applying the definition that it had
derived from Matter of Espinoza and should, instead, have followed Matter
of Bastista-Hernandez. Trung Thanh Hoang, 641 F.3d at 1165–68 (Bybee,
J., dissenting).
We subsequently clarified our prior precedents interpreting section
101(a)(43)(S) of the Act and held that an offense relating to obstruction of
justice must have as an element “the affirmative and intentional attempt, with
specific intent, to interfere with the process of justice . . . . [T]he existence of
[an ongoing criminal investigation or trial] is not an essential element of ‘an
offense relating to obstruction of justice.’” Valenzuela Gallardo I, 25 I&N
Dec. at 841 (emphasis added). Concerned that this definition might be
impermissibly vague, a divided panel of the Ninth Circuit applied the
doctrine of constitutional avoidance and remanded for us to consider a new
construction of section 101(a)(43)(S) of the Act or to apply our previous
interpretation in Matter of Espinoza. See Valenzuela Gallardo, 818 F.3d at
811, 813–24. We clarified our definition again in Valenzuela Gallardo II.
The unsettled nature of defining the term “relating to obstruction of
justice” in section 101(a)(43)(S) of the Act is evidenced by the continuing
discussion in these administrative and judicial decisions for more than
20 years. That the question has been unsettled becomes more apparent
in light of the reasoning underpinning the Ninth Circuit’s opinion in
Valenzuela Gallardo, where the court had serious constitutional doubts about
the vagueness of the definition we set forth in Valenzuela Gallardo I. As the
court noted, “Absent some indication of the contours of ‘process of justice,’
an unpredictable variety of specific intent crimes could fall within it, leaving
us unable to determine what crimes make a criminal defendant deportable
under [section 101(a)(43)(S)] and what crimes do not.” Valenzuela
Gallardo, 818 F.3d at 820. It would be questionable to conclude that an area
of law is settled when a court has expressed such concerns about the
vagueness of an agency’s interpretation of the relevant statute.
Moreover, a construction that requires interference with an ongoing
proceeding or investigation brings its own uncertainty. Some of the
obstruction of justice crimes that Congress placed in Chapter 73 of the
Federal criminal code do not require interference with an ongoing tribunal or
investigation. See Valenzuela Gallardo, 818 F.3d at 821 (citing 18 U.S.C.
§ 1512(b)(3) (2012) (“prohibition on tampering with a witness with the intent
to hinder or prevent ‘communication to a law enforcement officer’ regarding
a Federal offense”); § 1512(d)(2) (“prohibition on harassing someone with
the intent to prevent that person from ‘reporting [a federal crime] to a law
enforcement officer or judge’”); and § 1519 (2012) (“prohibition on
falsifying or destroying a record ‘with the intent to impede, obstruct, or
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Interim Decision #3964

influence the investigation or proper administration of any matter’ within the
jurisdiction of the United States”)). An Immigration Judge, practicing
attorney, or alien could reasonably question whether these offenses—placed
by Congress in a chapter expressly dedicated to obstruction of justice—
would qualify as an aggravated felony offense relating to obstruction of
justice under the definition previously applied by the Ninth Circuit.
Although case-by-case adjudication would likely resolve this issue over time,
it is further evidence of unsettled law.
We also look beyond the interplay between Board precedent and Ninth
Circuit decisions to determine whether the definition of the term “relating to
obstruction of justice” is unsettled. The Ninth Circuit’s inquiry has been
whether and to what extent it would defer to the Board’s definition under
step two of the analysis in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842–43 (1984) (stating that deference
to an agency’s decision depends on whether its statutory interpretation is
“based on a permissible construction of the statute”). A court can only reach
this second step if the statute is “silent or ambiguous.” Id. at 843. Finding
that the Act did not define the phrase “offense relating to obstruction of
justice,” the Ninth Circuit has thus addressed this statutory term in the
context of Chevron’s step two. 7 See Renteria-Morales, 551 F.3d at 1086.
By contrast, the Third Circuit has concluded that the phrase “relating to
obstruction of justice” is unambiguous. See Denis v. Att’y Gen. of U.S., 633
F.3d 201, 209 (3d Cir. 2011). Applying de novo review, the Third Circuit
found our definition of the phrase in Espinoza to be unnecessarily restrictive,
and it adopted a broader definition. Id. at 211–13; see also Matter of
Valenzuela Gallardo I, 25 I&N Dec. at 843. Judicial disagreement over
whether a phrase is plain or ambiguous further demonstrates how unsettled
the issue of defining “relating to obstruction of justice” has been.
Additionally, we consider significant the contrast between the circuit
courts’ assessment of our decisions defining an offense relating to
obstruction of justice and those addressing the circumstances under
which a theft offense is a crime involving moral turpitude. In Matter of
Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), we revisited the standard by
which we assessed whether a theft offense is turpitudinous. Previously, from
our “earliest days,” we had held that “a theft categorically involves moral
turpitude if—and only if—it is committed with the intent to permanently
deprive an owner of property.” Id. at 849. Finding it appropriate to “update
our existing jurisprudence,” we determined that “a theft offense is a crime
involving moral turpitude if it involves an intent to deprive the owner of his
7

In Valenzuela Gallardo, 818 F.3d at 815–18, the Ninth Circuit applied the constitutional
avoidance doctrine at Chevron’s step one. However, the court also noted that section
101(a)(43)(S) was an “ambiguous statute.” Id. at 824.

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Interim Decision #3964

property either permanently or under circumstances where the owner’s
property rights are substantially eroded.” Id. at 853. Recently, the Fifth
Circuit joined the Second, Ninth, and Tenth Circuits in declining to apply our
decision retroactively, concluding that our new definition “drastically
chang[ed] the landscape.” Monteon-Camargo v. Barr, 918 F.3d 423, 431
(5th Cir. 2019); see also Garcia-Martinez v. Sessions, 886 F.3d 1291, 1296
(9th Cir. 2018); Obeya v. Sessions, 884 F.3d 442, 449 (2d Cir. 2018);
Lucio-Rayos v. Sessions, 875 F.3d 573, 578 (10th Cir. 2017). We discern no
comparable “departure from well established practice” in the context of
interpreting the ambiguous phrase “relating to obstruction of justice” in
section 101(a)(43)(S) of the Act. Montgomery Ward, 691 F.2d at 1333
(citation omitted).
The Immigration Courts and the Board routinely encounter a diverse
range of criminal statutes containing distinct elements that might relate to
obstruction of justice. We must therefore determine whether these State and
Federal offenses categorically relate to obstruction of justice. Our prior
determinations, such as our holding in Matter of Espinoza that misprision of
felony under 18 U.S.C. § 4 does not relate to obstruction of justice, are
relevant but not dispositive when examining these other statutes. It was in
this context that we made our conclusions in Valenzuela Gallardo I and II
that accessory to a felony in violation of section 32 of the California Penal
Code is categorically an obstruction of justice offense under section
10l(a)(43)(S) of the Act.
Applying the second factor of the Montgomery Ward test, we conclude
that these decisions were merely attempts to fill a void in an unsettled area
of law and do not represent an abrupt departure from well-established
practice. See, e.g., Valenzuela Gallardo I, 25 I&N Dec. at 842 (noting that
our prior precedent had not gone “so far as to hold that obstruction offenses
must involve interference with an ongoing investigation or proceeding”);
Matter of Batista-Hernandez, 21 I&N Dec. 955 (holding that “accessory after
the fact” under 18 U.S.C. § 3 qualifies as an offense relating to obstruction
of justice, without requiring a pending or ongoing proceeding). Likewise,
we cannot discern a settled “former rule” on which the respondent may
reasonably have relied under the third factor of the Montgomery Ward test.
We will assume that Montgomery Ward’s fourth factor “strongly favors”
the respondent. Garfias-Rodriguez, 702 F.3d at 523. Removal of an alien
from the United States is a “substantial burden that weighs against retroactive
application of an agency adjudication.” Id. (citation omitted). We do not
diminish this factor or the hardship that might result from an alien’s removal.
“The fifth factor—the statutory interest in applying a new rule—points in
favor of the government because non-retroactivity impairs the uniformity of
a statutory scheme, and the importance of uniformity in immigration law is
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Interim Decision #3964

well established.” Id. “[T]he Federal immigration laws are intended to have
uniform nationwide application and to implement a unitary Federal policy.”
Matter of Velazquez-Herrera, 24 I&N Dec. 503, 508 (BIA 2008) (citing
Kahn v. INS, 36 F.3d 1412, 1414 (9th Cir. 1994)). As noted, Congress
expressly indicated its intention that the aggravated felony definitions in
section 101(a)(43) of the Act should apply retroactively. See St. Cyr, 533
U.S. at 318–19. This congressional action further cuts in favor of retroactive
application here, although it is not dispositive.
Having weighed the factors in the Montgomery Ward test in their totality,
we conclude that Valenzuela Gallardo II may be applied retroactively. Our
decision has filled a void in what was an unsettled area of law, and while
we acknowledge the hardship that retroactive application might cause to
the respondent, the national uniformity of our immigration laws is a
strong countervailing interest. We reach this conclusion based on the
circumstances of this case and the provision of the Act at issue. We do not
decide whether or how to apply decisions retroactively in other contexts,
including those involving other grounds for removal and discretionary or
mandatory relief.

III. CONCLUSION
In sum, the respondent was convicted of dissuading a witness in violation
of section 136.1(b)(1) of the California Penal Code, an offense that is
categorically an aggravated felony offense relating to the obstruction of
justice. We reject his argument that the standard we set forth for defining
obstruction of justice in Valenzuela Gallardo II may not be applied
retroactively to his conviction, and we conclude that he is removable under
section 237(a)(2)(A)(iii) of the Act. Consequently, he is also ineligible for
cancellation of removal under section 240A(a)(3) of the Act. 8 Accordingly,
the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

8

The respondent summarily argues that both we and the Immigration Judge erred by
denying his application for cancellation of removal. This claim, which addresses no new
arguments on remand, does not merit any further consideration.

663


Interim Decision #1403

MATTER OF POINDEXTER GALLERY
In VISA PETITION Proceedings
A-10383318
Decided by Regiorm2Ca9n.oiksiniter .11.4 15, 1984
Urgent need of beneficiary's services as an artist is not established within the
contemplation of section 203(a) (1), Immigration and Nationality Act, as
amended, since the interest of the petitioning art gallery seems to be based

solely on the speculation the beneficiary's paintings may become valuable.

This matter is before us on appeal from the decision of the District
Director who denied the petition.
The petitioner is an art gallery which presents exhibitions of contemporary paintings and sculpture and sells art work on commission.
The petitioner is seeking the services of the beneficiary as an artist.
The petitioner would act as the beneficiary's agent, take a one-third
commission on all sales and may purchase paintings directly from the
beneficiary at one - half the retail price. An agreement has been signed
by the beneficiary which grants the petitioner the right to first viewing of all her paintings until May 1,1966.
The beneficiary is an unmarried 38-year-old citizen of Japan who
has been in the United States since 1955 as a student attending the Art
Students League at New York. Before her arrival in the United
States she worked as an art consultant for a newspaper in Japan.
The petitioner states that the beneficiary has exhibited her paintings
at several group exhibitions over a period of the past six years and
has earned between $2,000 to $3,000 from the sale of her paintings.
We have carefully reviewed the record in this case in the light of
the representations made by counsel in support of the appeal. While
it is clear that the beneficiary is a talented artist we cannot find that .
the petitioner has established an urgent need for her services. In determining whether urgent need exists a reasonable interpretation must
be applied. "In the usual case, the petitioner seeks the services of the
beneficiary on a full-time basis, and the beneficiary derives her livelihood from the services rendered for the petitioner" (Matter of St. Demetrios Greek Orthodox Ohureh,Int. Dec. No. 1293). In this case the
76S-455-05----40

753

Interim Decision #1108
beneficiary has never earned her living from the sale of her paintings
nor is there any assurance that the demand for her paintings is such
that she will now be able to do so. The petitioner will not subsidize
the beneficiary nor is there any indication that it has invested or contemplates investing any funds in her training or in publicizing her
talents. The petitioner's interest in the beneficiary seems to be based
on the speculation that her paintings may become valuable and it
is concluded that this is insufficient to establish an urgent need for her
services. The appeal will be dismissed.
It is ordered that the appeal be and the same is hereby dismissed.

754


Interim Decision #1698

MATTER OF CHAT

Application for Classification as Refugee
A-12141227

Decided by Regional Commissioner February 9, 1967
For the purposes of refugee classification under the proviso to section 203(a) (7)
of the ImMigration and Nationality Act, as amended, applicant, a natlye of

China, who in 1955, when 15 years of age, because of political opinion fled the
Chinese mainland to Hong Kong where he remained until 1960 when he
entered the United States as a student, had not been firmly resettled in Hong
Kong in the absence of evidence that he was accorded any rights or privileges
in the Colony inconsistent with refugee status or that he otherwise reestablished himself there.
On Bnn4nr or Arrntosier : Charles Spar, Esquire

160 Broadway
New York, New York 10038

This matter Is before the Regional Commissioner for review on certification of the District Director's decision denying the application for
refugee classification under the proviso to section 208 (a) (7) of the
Immigration and Nationality Act as amended. The application is filed
with the District Director pursuant to 8 CFR 245.4, in connection with
an application for adjustment of status under section 245 of the Immigration and Nationality Act, as amended, in deportation proceedings
before a special inquiry officer.
The applicant is a citizen of China, single, born in Kwang Si, China,,
on June 10, 1940. He fled from the Chinese mainland in 1955 because
of his dislike of Communism and states he is unwilling or unable to
return there because he is completely anti Communist and will be persecuted if he does so. He was in Hong Kong from 1955 until he came
to the United States on September 2, 1960. He was admitted to the
United States on the latter date as a nonimmigrant student and has ;
-

remained.

since

Section 208(a) (7) of the Immigration and Nationality Act as
amended provides, so far as pertinent here :
Conditional entries shall next be made available by the Attorney General, pursuant to such regulations as he may prescribe and in a number not to exceed 6

81

Interim Decision #1698
per centum of the number specified in section 201(a) (ii), to aliens who satisfy
an Immigration and Naturalization Service officer at an examination in any
non-Communist or non-Communist-dominated country, (A) that (i) because of
persecution or fear of persecution on account of race, religion, or political opinion they have fled (I) from any Communist or Communist-dominated country or
area, . . . and (ii) are unable or unwilling to return to such country or area on
account of race, religion, or political opinion, and (iii) are not nationals of the
eountries or areas in which their application for conditional entry is made;
. . . Provided, That immigrant visas in a number not exceeding one-half the
number specified in this paragraph may be made available, in lien of conditional
entries of a like number, to such aliens who have been continuously physically
present in the United States for a period of at least two years prior to application
for adjustment of status.

It has been held that an alien who fled from Communist China but
thereafter became firmly resettled is; by virtue thereof, ineligible for
classification under the proviso to section 203 (a) (7). 1 The only issue
presented here is whether such resettlement had been effected.
The applicant was issued a passport by the Ministry of Foreign Affairs of the Republic of China in Macao on July 10, 1900, the validity
of which was extended to February 17, 1966. He was also issued a
Hong Kong Certificate of Identity for return to Hong Kong. The
travel document for return to Hong Kong is not conclusive evidence
of resettlement in that area. All nonimmigrant aliens generally are
required to present a valid travel document at the time of admission,
Hong Kong is a British Crown Colony of which the applicant is not
a national.
One of the major refugee programs which have been administered
by this Service was that of Chinese refugees in Hong Kong who had
fled from the mainland. On May 23, 1902, the President directed that
steps be taken to parole into the United States several thousand Chinese from Hong Kong under section 212(d) (5) of the Immigration
and Nationality Act to assist in alleviating conditions in that colony
caused by the influx of persons fleeing from Chinese tyranny on the
mainland of China. (Press conference of May 23, 1962, Published
Papers of the President of the United States John F. Kennedy, 1962,
p. 431.) Parole under the program was limited to the Chinese who
are relatives of United States citizens and resident aliens, those with
special skills urgently needed in the United States, and those who
had applied for entry into the United States under prior refugee laws
but who had not been accepted only because of numerical limitations.
(Annual report of the Attorney General of the United States for fiscal
year ending June 30, 1904, p. 412.) In discussing the use of parole authority, Representative Michael A. Feighan, Chairman of Subcommittee No. 1 of the House Judiciary Committee, observed "that the
Matter of Bun, Int. Dee. No. 16&i.

82

Interim Decision #1698
conditions of crisis and dire emergency were present when executive
authority was exercised in the case of . . . Chinese refugees in Hong
Kong." (Study of Population and Immigration Problems, Special
Series No. 18, Subcommittee No. 1, House Judiciary Committee, 1964,

page 92; Mr. Feighan's statements in announcing this report, Congressional Record of February 5, 1964, page 1877.)
Our applicant's stay in Hong Kong was between the ages of 15
and 20 years. He was still a student when he left Hong Kong. The
evidence does not show he held any official position in the Colonyi or
that he was granted therein any rights or privileges inconsistent with
refugee status or that he otherwise reestablished himself there. He
may not therefore be regarded as firmly resettled in Hong Kong. We
conclude he qualifies for the requested refugee classification.

It is ordered that the application for classification as a refugee
under the proviso to section 203(a) (7) of the Immigration and Nationality Act, as amended, be and hereby is approved.

83


Interim Decision #2144

MATTER OF ZAMPETIS
In Section 245 Proceedings
A-1950726

Decided by Regional Commissioner April 19, 1972
Where an alien was admitted to the United States as the nonimmigrant fiance of
a U.S. citizen, intending in good faith to marry the citizen petitioner, and the
latter had filed the petition in good faith but subsequently had an honest
change of mind and did not marry the alien, the alien is not precluded from
applying for adjustment of status under section 245 of the Immigration and
Nationality Act, as amended, on the basis of his marriage to another U.S.
citizen.

The District Director approved the application and certified this
case to me for review and final decision.
The applicant is a native and citizen of Greece born July 30, 1945.
He was last admitted to the United States on Mardi 20, 1971, as a
fiance pursuant to an approved visa petition filed by a United
States citizen under the provisions of section 214(d) of the Act, as
amended. The petitioner declined to marry the applicant as required by that section of the law. Applicant did marry another
citizen of the United States at Cleveland, Ohio, on June 13, 1971.
His wife's petition to classify him as an immediate relative under
section 201(b) of the Act was approved on June 19, 1971.
The District Director had a careful investigation conducted to
determine the pertinent facts attending the filing of the fiance
petition in order to ascertain whether or not there was any fraud,

material misrepresentation, or any other attempt to circumvent or
violate the immigration laws in connection therewith. The results
of the investigation are well set forth in his decision. Suffice it to
say that the investigation established that the applicant at all
times intended to marry his fiancee petitioner; that the latter had
an honest change of mind; and that applicant's present marriage
is a stable one.
It appears the District Director had some question regarding
the approval of the application for status as permanent resident
because of one of the provisions of section 214(d) which reads as

follows:
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Interim Decision #2144
In the event the marriage with the petitioner does not occur within three
months after the entry of the said alien and minor children, they shall be
required to depart from the United States and upon failure to do so shall be
deported in accordance with sections 242 and 243.

The question is a reasonable one in light of this provision of
section 214(d).
Section 242 sets forth the procedures for determining in formal
administrative proceedings the deportability of an alien in the
United States. Section 243 sets forth the procedure for the execution of an order of deportation entered pursuant to section 242.
Section 241(a) of the Act lists the classes of aliens in the United
States who, upon the order of the Attorney General, shall be
deported (emphasis supplied).
However, all deportable aliens in the United States are not
deported. Under section 244 of the Act the Attorney General may,
in his discretion, suspend deportation in certain cases and adjust
the status to that of an alien admitted for permanent residence.
Under section 249 of the Act the Attorney General, as a matter of
discretion, may create a record of lawful admission for permanent
residence in the cases of certain aliens who are subject to deportation. Thus it is clear that Congress in providing for the deportation
of certain classes of aliens also provided under certain circumstances, in the interest of fair and reasonable administration and
enforcement of the immigration laws, that some of these deportable aliens be permitted to become permanent residents of the
United States.
Section 245 of the Act is another section of immigration law
which Congress has enacted for this purpose. The applicant is
statutorily eligible for status as a permanent resident under
section 245 because he has been inspected and admitted into the
United States, he is eligible to receive an immigrant visa and is
admissible to the United States, and an immigrant visa is immediately, available to him. This being so, all that remains to be decided
is whether the application should be approved as a matter of
discretion. I find, as did the District Director, that on this record
such approval is warranted.
ORDER: It is ordered that the application be and the same is
hereby approved.

126


Interim Decision #2767

MATTER OF LOPEZ-MONZON

In Exclusion Proceedings
A-22296841
Decided by Commissioner January

4,

1979

(1) Eligibility under section 212(1) of the Immigration and Nationality Act, 8 U.S.C.
1182(i), to apply for a waiver of the grounds of excludability specified in section
212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(19), is limited to
aliens who are spouses, parents, or children of the United States citizens or lawful
permanent residents of the United States. The intent of Congress in adding this
provision was to provide for the unification of families and avoid the hardship of

separation.
(2) In this case, the United States citizen child upon whom eligibility was based, did not
live in the United States. The father, who lived in Guatemala had custody of the child.
There was no evidence that applicant had legal custody or could obtain legal custody of

the child if required to do so; nor was the evidence persuasive that the applicant
intended to bring the child with her or live with him in the United States. Thus, since
the waiver, if granted, would not have united or reunited a family, a favorable exercise
of discretion granting the waiver was not warranted in this case.
ON BEHALF OF APPLICANT: Pro se

This matter is before the Commissioner, on appeal from the Acting
District Director's denial of the application for a waiver of excludability as an alien who seeks to procure or has sought to procure, or has
procured a visa or other documentation, or seeks to enter the United
States by fraud, or by willfully misrepresenting a material fact. The
appeal is before the Commissioner because the officer who made the
initial decision is also occupying the office in which the appeal would

normally be decided.
The applicant is an unmarried female citizen of Guatemala, born
June 11, 1939, in Ratelhuleu, Guatemala. She is a resident of
Guatemala, as are her three older children who are citizens of
Guatemala and one illegitimate child who is a citizen of the United
States by birth in Brooklyn, New York, on August 16, 1969. The three
Guatemalan citizen children reside apart from the applicant and the
United States citizen child resides with his natural father, also a
citizen and resident of Guatemala who is responsible for the child's
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Interim Decision #2767
care. The applicant's former husband, who is the father of the three
older children, died February 14, 1973. The applicant was found excludable under section 212(a)(19) of the Immigration and Nationality Act,
8 U.S.C. 1182(a)(19), by a United States Consular Officer in Guatemala
City, Guatemala, because she obtained a nonimmigrant visa by fraud
on February 26, 1968, and thereafter entered the United States where
she remained and secured unauthorized employment. Although the
record is not clear as to the number of entries the applicant has made
into the United States nor the duration of her stays in this country, it
appears that her last departure was in February 1978, when she
returned to Guatemala.
The Acting District Director in his decision of July 14, 1978, has
pointed out that the United States citizen child of the applicant lives
with his father in Guatemala and would not accompany the applicant
to the United States. He concludes therefrom that no economic or
emotional hardship would be caused to the child by the applicant
remaining outside the United States. In view of this, and in the absence
of any persuasive humanitarian consideration, favorable exercise of

discretion was not warranted in this case.
In the applicant's appeal, she has stated that she obtained the
nonimmigrant visa in question legally; her behavior has been good; she
has always thought of bringing her child to the United States; and her
former employers in the United States want her to return to her
former employment with them. Attached to the appeal are letters
from her former employers stating their need for her services and
from a minister in the United States which attests to the applicant's
high moral standards.
Eligibility to apply under section 212(1) of the Immigration and

Nationality Act, 8 U.S.C. 1182(i), for a waiver of the grounds of excludability specified in section 212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(19), is limited to aliens who are spouses,
parents, or children of United States citizens or lawful permanent
residents of the United States. This provision of law was not contained
in the original Act, but was added by the Act of September 26, 1961, (75
Stat. 655). The intent of Congress in adding this provision of law,
which is evident from its language, was to provide for the unification of
families, thereby avoiding the hardship of separation.
In the instant case this is not the situation. The applicant's child,
upon whom eligibility to apply for the waiver is based, does not live in
the United States nor is the evidence persuasive that the applicant
intends to bring him with her or live with him here in the future. The
past record indicates otherwise and her statement upon appeal merely
shows that she has been thinking of doing so. There is no evidence that
she has legal custody or would be able to legally obtain custody of the
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Interim Decision #2767
child from his natural father even if she wished to do so.
In view of the factors in this case, it is evident that the applicant
wants to return to employment which would benefit her economically,
as well as fill a need of her prospective employers. While this is an
understandable desire, it would not unite or reunite a family and the
intent of the law would not be satisfied. Upon careful consideration, it
is concluded that the favorable exercise of the Attorney General's
discretion is not warranted in this case, and the Acting District

Director's decision will be affirmed and the appeal dismissed.
ORDERS The decision of the Acting District Director in Mexico
City is affirmed, and the appeal is dismissed.

282


Interim Decision #1375

Mk.u. c or Gnu
In SECTION 248 Proceedings
A-11893173
Deckled by Region& Comminioner July, 1, 1984
A nonimmigrant student is ineligible for a change of nonimmigrant status under
section 248, Immigration and Nationality Act, to that of an industrial trainee
in the absence of an approved petition according her status as an industrial
trainee.

This matter is before the Regional Commissioner on appeal from
the decision of the District Director at New York, New York, who
has denied this application for change of status on the ground that
the visa petition in which the applicant was named as the beneficiary
has not been approved and that the status for which she is applying is
not available to her in the absence of the approval of such a petition.
The applicant is a 25-year-old single female citizen of the Philippines, who was born on December 20, 1938, at Manila. She was admitted to the United States at Hawaii on April 14, 1960, as a student
and has been in the United States since that date as a student at the
Philadelphia College of Pharmacy and Science and the Sloan-Kettering Institute for Cancer Research for periods of employment for
practical training. On April 6, 1964, the Sloan-Kettering Institute
for Cancer Research submitted a petition in which it requested that

the status of an industrial trainee be approved for the applicant. A
careful examination of the petition and the supporting information
accompanying the petition revealed the training program would be
employment in the continuing research activities of the petitioning
concern and that for this reason this petition cannot be approved. In
the absence of an approved petition which would accord the applicant
the status of an industrial trainee a change in the applicant's status
to that which has been requested cannot be granted.
ORDER: It is ordered that this appeal be and the same is hereby
dismissed.

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