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Interim Decision #3939

Matter of Eduardo VELASQUEZ-RIOS, Respondent
Decided October 4, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The amendment to section 18.5 of the California Penal Code, which retroactively
lowered the maximum possible sentence that could have been imposed for an alien’s
State offense from 365 days to 364 days, does not affect the applicability of section
237(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i)(II)
(2012), to a past conviction for a crime involving moral turpitude “for which a sentence of
one year or longer may be imposed.”
FOR RESPONDENT: Richard Benavidez, Esquire
FOR THE DEPARTMENT OF HOMELAND SECURITY: Hye Chon, Assistant Chief
Counsel
BEFORE: Board Panel: GUENDELSBERGER, MALPHRUS, and LIEBOWITZ, Board
Members.
GUENDELSBERGER, Board Member:

In a decision dated December 11, 2014, an Immigration Judge found the
respondent removable on his own admissions under section 212(a)(6)(A)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012),
as an alien present in the United States without being admitted or paroled,
denied his application for cancellation of removal under section 240A(b)(1)
of the Act, 8 U.S.C. § 1229b(b)(1) (2012), and ordered him removed. On
April 25, 2016, we dismissed the respondent’s appeal from that decision.
This case is now before us on remand from the United States Court of
Appeals for the Ninth Circuit for further consideration of the respondent’s
eligibility for cancellation of removal. The appeal will again be dismissed.
The respondent is a native and citizen of Mexico who entered the United
States without inspection at an unknown time and place. On July 22, 2003,
he was convicted of possession of a forged instrument in violation of section
475(a) of the California Penal Code. 1 Although the respondent was only
sentenced to 12 days of incarceration, the Immigration Judge found that his
1

The respondent was also convicted of burglary in violation of California law, but in
light of our disposition in this case, we need not address the immigration consequences of
that conviction.

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offense was a crime involving moral turpitude “for which a sentence of one
year or longer may be imposed” under section 237(a)(2)(A)(i) of the Act,
8 U.S.C. § 1227(a)(2)(A)(i) (2012), because the maximum possible sentence
for his crime at the time of his conviction was 365 days. Since the respondent
had been convicted of an “offense under . . . section 237(a)(2),” the
Immigration Judge concluded that he is ineligible for cancellation of removal
under section 240A(b)(1)(C).
After the respondent appealed that decision, section 18.5 of the California
Penal Code was enacted, effective January 1, 2015, to provide:
Every offense which is prescribed by any law of the state to be punishable by
imprisonment in a county jail up to or not exceeding one year shall be punishable by
imprisonment in a county jail for a period not to exceed 364 days.

(Emphasis added.) 2 Notwithstanding that change in the law, we concluded
that the respondent had been convicted of an “offense under” section
237(a)(2)(A)(i) of the Act because, at the time of his conviction, the
maximum possible sentence for his crime was 1 year. We noted that section
18.5 did not become effective until after he had been convicted and that
nothing indicated the provision had retroactive effect. We therefore
dismissed his appeal.
While the respondent’s petition for review of our decision was pending,
the California Legislature amended section 18.5 to “apply retroactively” to
all convictions, “whether or not the case was final before January 1, 2015.”
Cal. Penal Code § 18.5(a) (West 2018) (effective January 1, 2017). 3 The
Government filed a motion requesting that the case be remanded to allow us
to consider the impact of this provision on the respondent’s eligibility for
cancellation of removal. The court granted the unopposed motion.
An applicant for cancellation of removal under section 240A(b)(1) must
demonstrate that he or she has not been “convicted of an offense under
section 212(a)(2), 237(a)(2), or 237(a)(3).” Section 240A(b)(1)(C) of the
Act; see also 8 C.F.R. § 1240.8(d) (2018). The respondent’s forgery offense
2

Section 18.5 was enacted to “align[] the definition of misdemeanor between state and
federal law” and to ensure that aliens “who committed low level and non-violent crimes
[would not be] subject to deportation.” Office of S. Floor Analyses, Cal. Legis. Info.,
SB 1242, at 2 (Aug. 19, 2016), https://leginfo.legislature.ca.gov/faces/billAnalysisClient
.xhtml?bill_id=201520160SB1242#. This provision is necessarily limited to California
convictions and does not affect crimes committed in other States, even if the convicted
alien resides in California.
3
Section 18.5(b) provides for a sentence reduction from 365 days to 364 days. However,
because the respondent was sentenced to 12 days in jail, this aspect of section 18.5 is not
before us.

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is clearly a “crime involving moral turpitude” within the meaning of
section 237(a)(2)(A)(i)(I) because it necessarily involved the “specific intent
to defraud another.” Cal. Jury Instr.—Crim. (“CALJIC”) 15.07 (Sept. 2018);
see also Jordan v. De George, 341 U.S. 223, 228 (1951) (“[C]rimes
involving fraud have universally been held to involve moral turpitude.”). 4
Therefore, the sole issue before us is whether, in light of section 18.5 of the
California Penal Code, the respondent’s forgery offense remains “a crime for
which a sentence of one year or longer may be imposed” within the meaning
of section 237(a)(2)(A)(i)(II) of the Act. 5 For the following reasons, we
conclude that it does and that his conviction renders him ineligible for
cancellation of removal under section 240A(b)(1)(C).
Although we recognize that section 18.5 may have retroactively modified
the maximum possible sentence for the respondent’s forgery offense for
purposes of State law, it does not affect the immigration consequences of his
conviction under section 237(a)(2)(A)(i)(II) of the Act, a Federal law. By
its plain terms, that provision is concerned with whether an alien has been
convicted of a crime involving moral turpitude for which a sentence of 1 year
or longer “may be imposed.” (Emphasis added.) In other words, it calls for
a backward-looking inquiry into the maximum possible sentence the alien
could have received for his offense at the time of his conviction. See, e.g.,
Matter of Cortez, 25 I&N Dec. 301, 311 (BIA 2010) (concluding that an
alien had been convicted of an offense under section 237(a)(2)(A)(i)
because she was convicted of “a crime involving moral turpitude for which
she could have been sentenced to a year in county jail” (emphasis added)). 6
4

Because the respondent’s crime qualifies for the petty offense exception under section
212(a)(2)(A)(ii)(II) of the Act, he has not been convicted of a crime involving moral
turpitude under section 212(a)(2)(A)(i)(I). See Matter of Ortega-Lopez, 27 I&N Dec. 382,
384 n.5 (BIA 2018).
5
For section 237(a)(2)(A)(i)(I) of the Act to be applicable, a crime involving moral
turpitude must also be “committed within five years . . . after the date of admission.” The
respondent has made no argument that because he committed forgery more than 5 years
after he entered the United States, his crime is not an “offense under” that section. In any
event, such a contention is foreclosed by our decision in Matter of Ortega-Lopez, 27 I&N
Dec. at 398 (concluding that “the temporal ‘admission’ requirement[]” of section
237(a)(2)(A)(i)(I) is inapplicable to “determining whether section 240A(b)(1)(C) of the
Act operates to disqualify an applicant for cancellation of removal by virtue of an ‘offense
under’ section[] 237(a)(2)”).
6
We recognize that certain California crimes may, as a matter of discretion, be punished
as a felony or a misdemeanor, for which there are different maximum possible sentences.
See Ewing v. California, 538 U.S. 11, 16–17 (2003) (describing so-called “wobbler”
statutes). However, the maximum sentence a defendant could have received at the time of
conviction is clear from looking at the sentencing scheme as a whole, even if the offense
is treated as a misdemeanor. Ceron v. Holder, 747 F.3d 773, 777 (9th Cir. 2014) (en banc).

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We therefore hold that the amendment to section 18.5 of the California Penal
Code, which retroactively lowered the maximum possible sentence that
could have been imposed for an alien’s State offense from 365 days to 364
days, does not affect the applicability of section 237(a)(2)(A)(i)(II) of the Act
to a past conviction for a crime involving moral turpitude “for which a
sentence of one year or longer may be imposed.” 7 We find support for our
holding in Federal court precedent.
Like the respondent, the defendant in United States v. Diaz, 838 F.3d 968
(9th Cir. 2016), cert. denied sub nom. Vasquez v. United States, 137 S. Ct.
840 (2017), had one of his crimes retroactively reclassified as a misdemeanor
pursuant to intervening California legislation. Because one of his two State
felony drug offenses was now a misdemeanor under State law, he argued
that he was no longer subject to 21 U.S.C. § 841(b)(1)(A) (2006), which
enhanced sentences for defendants convicted of a Federal offense following
the commission of two or more State drug felonies. The court rejected this
argument, noting that “federal law, not California law,” must be used “to
determine the effect of California’s reclassification on [the defendant’s]
federal sentence enhancement . . . .” Id. at 972 (emphases added).
As the Ninth Circuit explained, the only thing that mattered under Federal
law was whether the defendant had been convicted of two or more State
felony drug offenses prior to his Federal offense. The fact that California
decided to retroactively reclassify one of his State felonies as a misdemeanor
did not change “the historical fact that, for purposes of § 841, the defendant
had been convicted of the felony in the past.” Id. at 973 (emphasis added).
Thus, the State actions had “no bearing on whether § 841’s requirements
[were] satisfied.” Id. at 972. This was so “even if California decided to give
[its new law] retroactive effect for purposes of its own state law,” because,
according to the court, that decision “would not retroactively make [the
defendant’s] felony conviction a misdemeanor for purposes of federal law.”
Id. at 975. In reaching its conclusion, the court relied on the Supreme Court’s
decision in McNeill v. United States, 563 U.S. 816 (2011), which rejected a
similar argument.
In that case, the defendant asserted that he had not been convicted of
“a serious drug offense” for purposes of enhancing his sentence under
18 U.S.C. § 924(e)(2)(A)(ii) (2006) because he had not been convicted of a
State crime “for which a maximum term of imprisonment of ten years or
more is prescribed by law.” Although the defendant had been convicted in
the early 1990s of a North Carolina drug offense for which the maximum
7

This holding is consistent with the long-standing practice of examining the statute of
conviction and applicable penalty that existed under the law in effect at the time the
conviction was entered. See, e.g., Matter of Esfandiary, 16 I&N Dec. 659, 660 (BIA 1979);
Matter of A-, 4 I&N Dec. 378, 381 (C.O. 1951).

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penalty was at least 10 years, he argued that this crime no longer qualified as
a “serious drug offense” under Federal law because North Carolina reduced
the maximum sentence for his State offense to less than 10 years in 1994.
The Court disagreed, holding that North Carolina’s changes to its law
regarding the defendant’s State conviction had no effect on his Federal
sentence.
The Court explained that the plain language of § 924(e)(2)(A)(ii) requires
a Federal sentencing court to determine “the maximum sentence applicable
to a defendant’s previous drug offense at the time of his conviction for that
offense. . . . The only way to answer this backward-looking question is to
consult the law that applied at the time of that conviction.” Id. at 820
(emphases added). The Court concluded that this “natural reading of
[§ 924(e)(2)(A)(ii)] . . . avoids the absurd results that would follow from
consulting current state law to define a previous offense.” Id. at 822. 8
The logic embodied in McNeill and Diaz applies with equal force to this
case. We must use Federal law, rather than State law, to determine the
immigration consequences of the respondent’s California conviction. See
Diaz, 838 F.3d at 972 (“Federal law, not state law, governs our interpretation
of federal statutes.”). Section 237(a)(2)(A)(i)(II), like the Federal sentencing
provisions at issue in McNeill and Diaz, requires a backward-looking inquiry
into the maximum possible sentence the respondent could have received for
his forgery offense at the time of his conviction. 9
The respondent’s conviction for his forgery offense was entered in 2003,
prior to the effective date of section 18.5 of the California Penal Code. At
that time, the maximum possible sentence for the crime was 365 days.
Because we look to the maximum possible sentence he could have received
for his offense at the time of his conviction, section 18.5 does not affect the
applicability of section 237(a)(2)(A)(i)(II) of the Act to his forgery offense.
Consequently, we conclude that the respondent’s offense remains “a crime
for which a sentence of one year or longer may be imposed” and that his
conviction renders him ineligible for cancellation of removal under section
240A(b)(1)(C). Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
8

The Court declined to address whether a Federal sentencing court could consider “a
situation in which a State subsequently lowers the maximum penalty applicable to an
offense and makes that reduction available to defendants previously convicted and
sentenced for that offense.” McNeill, 563 U.S. at 825 n.1.
9
In this regard, section 237(a)(2)(A)(i)(II) differs from other provisions of the Act that
require us to consider the actual sentence imposed, necessitating a fact-based inquiry into
a State court judge’s specific sentence or into subsequent modifications to that sentence.
See, e.g., section 101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2012); Matter of
Cota, 23 I&N Dec. 849, 852 (BIA 2005).

474


Interim Decision #2735

MATTER OF KIM
In Deportation Proceedings
A-19915681

Decided by Board September 27, 1979
(1) In the Ninth Circuit, to be eligible for relief under section 212(c) of the Immigration
and Nationality Act, 8 U.S.C. 1182(c), the alien must establish that he has maintained
a "lawful unrelinquished domicile" in the United States for 7 consecutive years after
admission for permanent residence. Castillo-Felix v. INS, 601 F.2d 459 (9 Cir. 1979).
(2) A conviction for the crime of robbery in violation of section 211 of the California
Penal Code is a crime involving moral turpitude. Mat for of a —k— , 2 I&14 Dee_ 734

(BIA 1946; A.G. 1947).
CHARGE:
Order: Let of 1952--Sec 241(a)(4)

U.S.C. 1251(a)(4)l—Convicted of a crime involving moral turpitude

ON BEHALF OF RESPONDENT: Hiram W. Kwan, Esquire
840 N. Broadway, Suite 200
Los Angeles, California 90012
BY:

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This is an appeal from an immigration judge's decision dated January 30, 1979, in which the respondent was found deportable under
section 241(a)(4) of the Immigration and Nationality Act, S U.S.C.
1251(a)(4), denied acceptance of an application for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. 1182(c), and
denied the privilege of voluntary departnre_ The appeal will be
dismissed.
The respondent is a 24-year-old male alien, a native and citizen of
Korea who last entered the United States on May 28, 1968, as a
nonimmigrant student authorized to stay until October 17, 1969. On
July 2, 1973, his status was adjusted to that of a permanent resident.
On December 31, 1973, the respondent pled guilty and was convicted of
the crimes of rape and robbery which were committed on April 22,
1973. He served 4 years and 8 months in the state prison for these

crimes.
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On April 26, 1978, a hearing was held based on an Order to Show
Cause charging the respondent with deportability under section
241(a)(4) of the Act in that he had been convicted of a crime involving
moral turpitude committed within 5 years after entry and sentenced to
confinement in prison for a year or more, to wit, robbery, a violation of
section 211 of the California Penal Code.
The respondent denied at the hearing that he had been convicted of a
crime involving moral turpitude and that he had been sentenced to
confinement in a state prison for a year or more. The respondent
further denied deportability.
Based on the record, the immigration judge found that the respondent was convicted of robbery committed on April 22, 1973, in violation

of section 211 of the California Penal Code.' Under section 213 of the
California Penal Code, robbery is punishable by imprisonment for 5
years. The immigration judge also found that the crime of robbery is a
crime involving moral turpitude. US. ex rel. Cerami v. Ella, 78 F.2d 698
(2 Cir. 1935); Matter of G—R—, 2 I&N Dec. 733 (BIA 1946; A.G. 1947).
Based on the above, the immigration judge found the respondent

deportable under section 241(a)(4) of the Act, as one who had been
convicted of a crime involving moral turpitude committed within 5
years of entry and sentenced to confinement in prison for a year or
more.
The immigration judge further found that the respondent was not
prima facie eligible for a waiver of inadmissibility under section 212(c)
of the Act, citing Matter of Ammo, 16 I&N Dec. 293 (BIA 1977), and
refused to admit the application. The immigration judge also found
that the respondent was not eligible for voluntary departure since his
conviction of a crime involving moral turpitude precluded a finding of
good moral character within the meaning of section 101(f)(3) of the
Act, 8 U.S.C. 1101(f)(3).
On appeal, the respondent, through counsel, contends that the immigration judge denied him due process of law by failing to accept the
application for advance permission to return to inirelinquished
domicile, citing Loh v. INS, 548 F.2d 37 (2 Cir. 1977).
We agree with the immigration judge's finding that the respondent
is deportable under section 241(a)(4) of the Act for having been convicted of a crime involving moral turpitude committed within 5 years
of entry and sentenced to confinement in prison for a year or more.
We also agree with the immigration judge's finding that the respondent did not establish that he was prima fade eligible for relief
under section 212(c) of the Act. To be eligible for section 212(c) relief.

the respondent must establish that he has maintained a "lawful unre' A copy of the judgment of conviction was admitted into evidence as Exhibit 3.

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linquished domicile" in the United States for 7 consecutive years.
Castillo-Felix v. INS, 601 F.2d 459 (9 Cir. 1979). The respondent in this
case did not have his status adjusted to that of a permanent resident
until July 2, 1973. The 7 years necessary to be eligible for this relief
have not yet elapsed to date.

The respondent's argument that the Lok decision is applicable in
this case is without merit. The Ninth Circuit in Castillo-Felix v. INS,
supra, has clearly rejected the rationale of Lok and has held that the

respondent must accumulate 7 years of lawful unrelinquished domicile
after his admission for permanent residence to be eligible for relief
under section 212(c) of the Act. Since the present case arises out of the
Ninth Circuit, the court's decision in Castillo-Felix v. INS, supra, is
controlling.
We further agree with the determination of the immigration judge
that the respondent cannot be considered to be a person of good moral
character because the crime of which he was convicted is one involving
moral turpitude. See section 101(f)(3) of the Act; Matter of G—R--,
supra. Accordingly, we conclude that the respondent is deportable as

charged, prima facie ineligible for relief under section 212(c) of the
Act, mid is ineligible for voluntary departure. Accordingly, the appeal
will be dismissed.
ORDERS The appeal is dismissed.

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Interim Decision #3913

Matter of Rosalina CASTILLO ANGULO, Respondent
Decided January 29, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In removal proceedings arising within the jurisdiction of the United States Courts of
Appeals for the Fifth and Ninth Circuits, an alien who was “waved through” a port of
entry has established an admission “in any status” within the meaning of section
240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (2012).
Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), and Saldivar v. Sessions, 877 F.3d
812 (9th Cir. 2017), followed in jurisdiction only.
(2) In removal proceedings arising outside the Fifth and Ninth Circuits, to establish
continuous residence in the United States for 7 years after having been “admitted in any
status” under section 240A(a)(2), an alien must prove that he or she possessed some
form of lawful immigration status at the time of admission.
FOR RESPONDENT: Carlos A. Cruz, Esquire, Alhambra, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jeannette V. Dever, Associate
Legal Advisor
BEFORE: Board Panel: GREER and O’CONNOR, Board Members. Concurring and
Dissenting Opinion: PAULEY, Board Member.
O’CONNOR, Board Member:

In a decision dated July 24, 2015, an Immigration Judge denied the
respondent’s application for cancellation of removal under section 240A(a)
of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2012). The
respondent has appealed from that decision. The record will be remanded
for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who claims that she first
entered the United States in October 1991. In April 2003, she adjusted status
to that of a lawful permanent resident. On January 12, 2010, the Department
of Homeland Security (“DHS”) served the respondent with a notice to appear,
charging her with removability under section 212(a)(6)(E)(i) of the Act,
8 U.S.C. § 1182(a)(6)(E)(i) (2006), for smuggling or attempting to smuggle
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an alien into the country. 1 The respondent applied for cancellation of
removal under section 240A(a) of the Act. The Immigration Judge
pretermitted the respondent’s application, concluding that she did not
establish that she “has resided in the United States continuously for 7 years
after having been admitted in any status,” as required by section 240A(a)(2)
of the Act.
The respondent claims that she presented herself for inspection in 1998
and was waved through a port of entry by an immigration official. Relying
on Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), she argues that this
entry constitutes an admission “in any status” under section 240A(a)(2) of
the Act and that she began to accrue continuous residence for purposes of
cancellation of removal after that date.
The Immigration Judge rejected the respondent’s argument, concluding
that Matter of Quilantan only applies to applications for adjustment of
status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006), so the
respondent’s alleged “wave through” entry in 1998 was not an “admission”
for purposes of section 240A(a)(2) of the Act. Based on this conclusion, the
Immigration Judge found it unnecessary to determine whether the respondent
had any status at the time of her alleged entry. The Immigration Judge further
determined that the respondent could not establish the continuous residence
required by section 240A(a)(2), because her residence began to accrue when
she adjusted her status in April 2003, and it was terminated under section
240A(d)(1) by service of the notice to appear in January 2010, approximately
3 months short of the requisite 7-year period.
During the pendency of the respondent’s appeal, we requested and
received supplemental briefing from the parties and amici curiae. 2 The panel
heard oral argument in this matter on March 22, 2017. 3

1

The respondent does not challenge either her treatment as an applicant for admission
who is subject to the grounds of inadmissibility under section 212(a) of the Act or her
inadmissibility under section 212(a)(6)(E)(i) of the Act. See generally Matter of Guzman
Martinez, 25 I&N Dec. 845 (BIA 2012) (concluding that a lawful permanent resident who
has attempted to smuggle an alien into the country may be treated as an applicant for
admission).
2
We acknowledge and appreciate the supplemental briefs filed by the parties and amici
curiae.
3
Following oral argument, Board Member Wendtland withdrew from the panel and was
replaced by Board Member Greer, who has familiarized herself with the record of
proceedings, including a transcript of the oral argument.

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II. ANALYSIS
A. “Wave Through” Entry as an “Admission”
In Matter of Quilantan, 25 I&N Dec. at 291–92, we held that the term
“admission” in section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A)
(2006), requires procedural regularity, rather than compliance with
substantive legal requirements, and that an alien who entered after she had
been “waved through” a port of entry had been “admitted” within the
meaning of section 245(a) of the Act. Contrary to the Immigration Judge’s
decision, we agree with the parties that our holding in Matter of Quilantan
governs the definition of the term “admitted” in section 240A(a)(2) of the
Act. We therefore conclude that the respondent was “admitted” for purposes
of section 240A(a)(2).
B. “Admitted in Any Status”
The only remaining issue is whether a “wave through” entry, like the one
at issue in Quilantan, qualifies as an admission “in any status” within the
meaning of section 240A(a)(2) of the Act. The respondent argues that the
term “status” includes unlawful status and that the word “any” in that
provision should be read broadly to include all aliens admitted to the United
States, whether in lawful or unlawful status. In support of this contention,
she relies on Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), a decision
of the United States Court of Appeals for the Fifth Circuit. After oral
argument was heard in this case, the Ninth Circuit, in whose jurisdiction it
arises, issued a decision agreeing with the Fifth Circuit. Saldivar v. Sessions,
877 F.3d 812 (9th Cir. 2017). By contrast, the DHS contends that the phrase
“admitted in any status” in section 240A(a)(2) requires an alien to show not
only that he or she has been admitted, but also that the admission was attained
by means of some lawful immigration status. The Board has not issued a
published decision addressing whether the “wave through” entry of an alien
who was not entitled to any lawful status constitutes an admission “in any
status.”
Both parties argue that section 240A(a)(2) of the Act is unambiguous as
to whether a “wave through” entry constitutes an admission “in any status.”
See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. (“Chevron”), 467
U.S. 837, 842–43 (1984). Having considered the statutory language and the
various arguments in this case, we disagree and conclude that section
240A(a)(2) is ambiguous in this regard. See Negusie v. Holder, 555 U.S. 511,
518 (2009) (finding a provision ambiguous where it was not “clear that
Congress had an intention on the precise question at issue”); Nat’l R.R.
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Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 473
n.27 (1985) (noting that words are “ambiguous” if they are “reasonably
susceptible of different interpretations”). 4 We must therefore develop a
reasonable interpretation of the provision, taking into account the Act as a
whole. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988);
Chevron, 467 U.S. at 843–44; Matter of Casillas-Topete, 25 I&N Dec. 317,
320 (BIA 2010).
In interpreting the appropriate meaning of section 240A(a)(2) of the Act,
we consider it significant that the phrase “admitted in any status” differs from
the wording of section 245(a), which requires only that an alien be “inspected
and admitted” and makes no mention of the alien’s “status” at admission.
We generally presume that when Congress includes particular language in
one section of a statute and excludes it from another, it does so intentionally.
See Keene Corp. v. United States, 508 U.S. 200, 208 (1993); Russello
v. United States, 464 U.S. 16, 23 (1983). The fact that Congress included the
phrase “in any status” in section 240A(a)(2) of the Act but not in section
245(a) suggests that it intended to give the statutes different meanings.
We are further influenced by the longstanding principle that, if possible,
we should give effect to all parts of the statute. See Corley v. United States,
556 U.S. 303, 314 (2009) (stating that a “statute should be construed so that
. . . no part will be inoperative or superfluous, void or insignificant” (citations
omitted)). Reading section 240A(a)(2) of the Act in the same way we do
section 245(a)—as requiring only a procedurally regular “admission”—
would render the phrase “in any status” meaningless. If Congress had
intended section 240A(a)(2) to require only that an alien be “inspected and
admitted,” it would have used the same language as section 245(a). Indeed,
Judge Kozinski made this exact point in his dissent in Saldivar, 877 F.3d at
4

We find it telling that both parties base their argument on conflicting views of what is
purportedly unambiguous statutory language. Similarly, we note that 5 of the 15 judges
on the Fifth Circuit voted to rehear Tula-Rubio en banc, and of those, 4 joined in a
published decision dissenting from the denial of rehearing en banc. Tula Rubio v. Lynch,
805 F.3d 185, 186−92 (5th Cir. 2015) (Jones, J., dissenting from the denial of rehearing en
banc). We again find it telling that both the Fifth Circuit’s panel decision and the published
decision dissenting from the denial of rehearing en banc were based on conflicting views
of what was deemed to be the unambiguous language of section 240A(a)(2) of the Act.
Compare Tula-Rubio, 787 F.3d at 293−95 & nn.4−5, with Tula Rubio, 805 F.3d at 187 &
n.4, 192. Finally, we note that the Ninth Circuit’s decision in Saldivar contained a
dissenting opinion that disagreed with the majority opinion’s interpretation of the “in any
status” language and held that, to the extent “any doubt remains about the meaning of
status,” deference was owed to the agency’s interpretation. Saldivar, 877 F.3d at 820
(Kozinksi, J., dissenting). The fact that the words “in any status” have generated such
sharp, conflicting views of what their plain meaning is by both judges and litigants alike
strongly suggests that the statutory language is far from unambiguous.

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819 (Kozinski, J., dissenting) (“If Congress intended to grant eligibility for
cancellation of removal to people who deceive the border authorities into
admitting them, it would have put a period after ‘admitted’ in section
[240A(a)(2) of the Act] . . . .”). However, by adding the phrase “in any
status” to section 240A(a)(2), Congress signaled that it intended to qualify
the basic admission requirement of this provision. We therefore conclude
that section 240A(a)(2) requires something more than a procedurally regular
“admission.”
The legislative history of section 240A(a) of the Act, and its precursor,
former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), provides
valuable insight into congressional intent regarding the requirement that an
alien must be admitted “in any status” to establish eligibility for relief. See
United States v. Buckland, 289 F.3d 558, 565 (9th Cir. 2002) (en banc)
(noting that where Congress’ intent cannot be determined from a plain
reading of the statute, the court should “look to the congressional intent
‘revealed in the history and purposes of the statutory scheme’” (citation
omitted)). From the time of its enactment in 1952, relief under former section
212(c) was restricted to aliens who entered the United States in some lawful
status. See, e.g., Madrid-Tavarez v. INS, 999 F.2d 111, 112–13 (5th Cir.
1993) (holding that an alien who entered the United States illegally and had
no legal right to be in the country could not qualify for a section 212(c)
waiver); Lok v. INS, 548 F.2d 37, 41 (2d Cir. 1977) (concluding that section
212(c) relief requires an alien to have been lawfully domiciled for 7 years);
see also S. Rep. No. 81-1515, at 382–84 (1950) (suggesting that section
212(c) should include the word “lawful” to clarify that only aliens who had
entered the United States lawfully were eligible for relief).
There is no indication that Congress intended to eliminate this “lawful”
entry requirement when it enacted the “residence” requirement in section
240A(a)(2) of the Act, the purpose of which was to reconcile two conflicting
interpretations of former section 212(c) regarding an applicant’s “lawful
unrelinquished domicile” in this country. See Garcia-Quintero v. Gonzales,
455 F.3d 1006, 1016 (9th Cir. 2006) (noting that Congress enacted section
240A(a) of the Act “to clear up prior confusion and to strike a balance
between the conflicting interpretations [of section 212(c)]” (citation
omitted)), abrogated on other grounds by Medina-Nunez v. Lynch, 788 F.3d
1103 (9th Cir. 2015); see also Holder v. Martinez Gutierrez, 566 U.S. 583,
592–93 (2012). In any case, under both interpretations of former section
212(c), aliens were afforded relief only if they possessed a lawful status when
they entered the United States. See, e.g., Castellon-Contreras v. INS, 45 F.3d
149, 153 (7th Cir. 1995); Chiravacharadhikul v. INS, 645 F.2d 248, 250–51
(4th Cir. 1981).

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Additionally, the legislative history of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Division C of Pub. L. No.
104-208, 110 Stat. 3009-546, indicates that even though Congress omitted
the word “lawfully” in section 240A(a)(2), it intended to limit eligibility for
relief to aliens who had been lawfully admitted in any status. See H.R. Rep.
No. 104-828, at 213 (1996) (Conf. Rep.) (indicating that section 240A(a)
applied to lawful permanent residents who had resided continuously in this
country for 7 years after “being lawfully admitted in any status”); H.R. Rep.
No. 104-469, at 232 (1995) (same); see also S. Rep. No. 104-249, at 106,
125 (1996) (proposing changes to section 212(c) and a new section 244(a) of
the Act entitled “Cancellation of Deportation,” both of which limited relief
to aliens who had resided in the United States continuously for at least 7 years
after being “lawfully admitted”).
This legislative history also indicates that at the time Congress was
considering section 240A(a)(2), Government officials within the former
Immigration and Naturalization Service (“INS”) interpreted this provision as
being limited to aliens who were lawfully admitted. See Removal of Criminal
and Illegal Aliens: Hearing Before the Subcomm. on Immigration and
Claims of the H. Comm. on the Judiciary, 104th Cong. 14–15 (1995)
(statement of T. Alexander Aleinikoff, Gen. Counsel, INS) (discussing the
proposal to limit eligibility for lawful permanent resident cancellation of
removal to aliens who have “resided in the U.S. after lawful admission for
7 years” (emphasis added)); Proposals to Reduce Illegal Immigration and
Control Costs to Taxpayers: Hearing Before the S. Comm. on the Judiciary,
104th Cong. 63 (1995) (statement of Hon. Doris Meissner, Comm’r, INS)
(same). Thus, Congress only intended that aliens who possessed lawful
status upon admission would be eligible for cancellation of removal.
Based on the foregoing, we conclude that the most natural reading of the
phrase “admitted in any status” in section 240A(a)(2) of the Act is that the
alien must have possessed some form of lawful status at the time of
admission that would allow him or her to enter into the United States as an
immigrant or nonimmigrant. This interpretation is consistent with our prior
decision in Matter of Blancas, 23 I&N Dec. 458, 460 (BIA 2002), where we
held that the term “status” in section 240A(a)(2) “denotes someone who
possesses a certain legal standing, e.g., classification as an immigrant or
nonimmigrant.” See also Saldivar, 877 F.3d at 820 (Kozinski, J., dissenting)
(“Limiting any status to legal status is not merely a plausible meaning, it is
the only plausible meaning.”); Tula Rubio v. Lynch, 805 F.3d 185, 187–88
(5th Cir. 2015) (Jones, J., dissenting from the denial of rehearing en banc)
(holding that the phrase “‘any status’ refers exclusively to the legal categories
enumerated in the [Act] and conferred upon aliens”). It is also consistent
with Matter of Quilantan, 25 I&N Dec. at 293, where we rejected the DHS’s
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claim that section 245(a) of the Act requires an alien to have been admitted
in a particular status, largely because it had offered no support for that claim.
However, in this instance the wording of section 240A(a)(2) strongly
suggests that an alien’s status upon admission is relevant to determining
whether his or her entry started the 7-year residence clock.
Requiring an alien to have possessed a lawful status at the time of entry
also prevents possible abuse of this form of relief. “Wave through” entries
are by definition undocumented events. The respondent’s proposed
interpretation of section 240A(a)(2) of the Act opens the door for all lawful
permanent resident aliens who illegally cross the border to claim, years after
the fact, that they were “waved through” a port of entry and are therefore
eligible for cancellation of removal based on a claim that is impossible
for the DHS to refute. See Saldivar, 877 F.3d at 821 (Kozinski, J., dissenting)
(noting that the majority’s decision creates “perverse incentives” because
“[o]bviously, there would be no record contradicting [an alien’s claimed
“wave through”], so the incentive to lie would be powerful and the chance of
getting caught nil”). The respondent’s view would essentially relieve aliens
of the statutory burden of establishing that he or she has satisfied all the
eligibility requirements for cancellation of removal under section 240A(a) of
the Act. See section 240(c)(4)(A)(i) of the Act, 8 U.S.C. § 1229a(c)(4)(A)(i)
(2012); see also 8 C.F.R. § 1240.8(d) (2017). It is unlikely that Congress
would have intended such a result.
We also disagree with the view of the Fifth and Ninth Circuits that an
alien can be admitted in an unlawful status. See Saldivar, 877 F.3d at 816;
Tula-Rubio, 787 F.3d at 293−94 & n.5. When an alien seeks admission at
the border, an immigration official admits the alien only upon a
determination that he or she is lawfully entitled to enter the United States.
See section 212(a)(7) of the Act, 8 U.S.C. § 1182(a)(7) (2012) (rendering
inadmissible those aliens who are not in possession of valid entry documents
at the time they seek admission); section 235(b)(1)(A) of the Act, 8 U.S.C.
§ 1225(b)(1)(A) (2012) (providing that an immigration officer may order the
expedited removal of an arriving alien who lacks valid entry documents); see
also section 235(a)(3) of the Act (requiring all applicants for admission to be
inspected). Because it is precisely the nature of the alien’s status that
determines whether he or she is entitled to admission, we cannot agree with
the conclusion of the Fifth and Ninth Circuits that an alien can be “admitted
in” a status that would not entitle him or her to admission. 5
5

For this reason, we also disagree with the argument that the term “in any status” serves
a purpose similar to the phrase “irrespective of such alien’s status” in section 208(a)(1) of
the Act, 8 U.S.C. § 1158(a)(1) (2012). Although an alien’s status is irrelevant in the asylum
context under section 208, it is key to determining whether an alien is entitled to admission.
Thus, we do not consider these phrases to have the same meaning.

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In some cases, an alien may be “admitted” in error, and he or she may be
removable based on that erroneous admission. See section 237(a)(1)(A) of
the Act, 8 U.S.C. § 1227(a)(1)(A) (2012) (providing that an admitted alien
who was inadmissible at the time of entry or adjustment of status is
removable); section 237(a)(1)(G)(i) of the Act (providing that an alien who
obtained admission by virtue of a fraudulent marriage is removable); see also
section 237(a)(1)(H) of the Act (providing a waiver of removability for aliens
who obtained admission by fraud or misrepresentation). Indeed, as we noted
in Matter of Quilantan, 25 I&N Dec. at 291, requiring an “admission” to be
in compliance with substantive legal requirements would “significantly
affect the applicability of [these] other statutory provisions of the Act.” See
also id. at 295 (Filppu, concurring) (noting that while the majority’s reading
of the word “lawful” in the definition of admission in section 101(a)(13)(A)
of the Act “is not the most natural reading, . . . it is the reading that emerges
from an overall examination of the statute,” including sections 237(a)(1)(A)
and (H) of the Act, which would be “rendered meaningless” by a contrary
interpretation).
However, interpreting the phrase “admitted in any status” to require that
an alien be admitted in some form of lawful immigration status does not
create the same inconsistencies with the other statutory provisions we
discussed in Quilantan, because the language of section 240A(a)(2) of the
Act is different from that in section 245(a). Instead, if there are any statutory
conflicts or inconsistencies, they are created by the view of the Fifth and
Ninth Circuits that aliens can be admitted in an unlawful status, which is in
tension, if not direct conflict, with sections 235(a)(3) and 212(a)(7) of the
Act (requiring all aliens seeking admission to the United States to be
inspected and providing that aliens without a valid entry document are
deemed inadmissible, respectively). These two provisions reflect a clear
congressional intent that only aliens who are lawfully entitled to enter the
United States are to be admitted.
It is beyond dispute that border officers are not supposed to admit
undocumented aliens. The view of the Fifth and Ninth Circuits that Congress
not only would have intended for this to happen but would have triggered an
alien’s eligibility for relief on such an admission in an unlawful status turns
on its head the presumption of regularity that courts presume public officers
to “have properly discharged their official duties.” Kohli v. Gonzales, 473
F.3d 1061, 1068 (9th Cir. 2007) (citation omitted); see also United States
v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926); cf. Lai Haw Wong v. INS,
474 F.2d 739, 742 (9th Cir. 1973) (holding that a “mistaken admission
conferred no status, permanent resident or otherwise,” on the aliens in
question). Stated bluntly, we fail to see how this could be.

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We further disagree with the Fifth and Ninth Circuits that the use of the
phrase “lawfully admitted” in section 240A(a)(1) of the Act, but not in
section 240A(a)(2), indicates that Congress intended the latter to apply to
aliens admitted in an unlawful status. See Saldivar, 877 F.3d at 817;
Tula-Rubio, 787 F.3d at 294–95. Section 240A(a)(1) requires that an
applicant “ha[ve] been an alien lawfully admitted for permanent residence
for not less than 5 years.” (Emphasis added.) The phrase “lawfully admitted
for permanent residence” is a term of art that refers to “the status of having
been lawfully accorded the privilege of residing permanently in the United
States.” Section 101(a)(20) of the Act. Unlike the use of the term “admitted”
in section 240A(a)(2), the phrase “lawfully admitted for permanent
residence” in section 240A(a)(1) does not refer to a physical entry into the
United States. See Negrete-Ramirez v. Holder, 741 F.3d 1047, 1053 (9th Cir.
2014) (holding that the term “lawfully admitted for permanent residence”
refers to all lawful permanent residents, regardless of whether they obtained
the status at the time of a physical entry or adjusted status while in the United
States). Thus, the inclusion of the word “lawfully” in section 240A(a)(1) but
not in section 240A(a)(2) does not indicate that the latter includes aliens
erroneously admitted with no legal status. See Saldivar, 877 F.3d at 819−20
(Kozinski, J., dissenting) (noting that it does not make sense to contrast
“lawfully admitted for permanent residence” with “admitted in any status”
because the former refers to the acquisition of a legal status while the latter
refers to a physical admission at the border). Rather, “admitted in any status”
clarifies that, unlike section 240A(a)(1), section 240A(a)(2) of the Act
requires that the alien made a physical admission at a port of entry, but not
that he or she obtained the status of “an alien lawfully admitted for permanent
residence” at the time of that admission.
As a consequence, we will only adhere to Tula-Rubio and Saldivar in
cases arising in the Fifth and Ninth Circuits. 6 In all other circuits that have
yet to address the issue, we hold that aliens must show that they possessed
some form of lawful immigration status at the time of admission to establish
that they were “admitted in any status” under section 240A(a)(2) of the Act.
C. Application to the Respondent
The Immigration Judge pretermitted the respondent’s application based
on the legal determination that a “wave through” entry can never be an
6
The Fifth and Ninth Circuits based their decisions on what they found to be the
unambiguous meaning of section 240A(a)(2) of the Act. Saldivar, 877 F.3d at 816;
Tula-Rubio, 787 F.3d at 293−95 & nn.4−5. Thus, we are bound by those holdings,
notwithstanding our disagreement with them. See Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs., 545 U.S. 967, 982 (2005).

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“admission in any status” under section 240A(a)(2) of the Act, so she did not
hear testimony on the respondent’s claimed “wave through” entry or on any
other issues involving the respondent’s eligibility for cancellation of
removal. Because the Ninth Circuit has concluded that a “wave through”
entry is an “admission in any status,” we will remand the record to the
Immigration Judge for further consideration of the respondent’s eligibility
for cancellation of removal under section 240A(a). Although the DHS
argues that the respondent waived her right to present testimony and other
evidence at the final hearing, we conclude that the respondent sufficiently
raised all issues before the Immigration Judge and thus preserved them for
appeal and a further hearing. 7
The respondent bears the burden of proving that she was waved through
at a port of entry in 1998 and that she maintained continuous residence for
7 years following that entry. See section 240A(a)(2) of the Act; see also
section 240(c)(4)(A) of the Act. On remand, the parties should submit
testimonial and other evidence regarding this and other issues relevant to the
respondent’s eligibility for cancellation of removal under section 240A(a) of
the Act.
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new
decision.

CONCURRING AND DISSENTING OPINION:
Board Member

Roger A. Pauley,

I concur in the result, which the majority only reaches because it
acknowledges that the decision of the United States Court of Appeals for the
Ninth Circuit in Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), which
holds that a wave through constitutes an “admission in any status” for
purposes of section 240A(a)(2) of the Act, is binding on the Board since this
case arises in that circuit. However, unlike the majority, I conclude that both
the Ninth Circuit and the Fifth Circuit, whose similar holding in Tula-Rubio
v. Lynch, 787 F.3d 288 (5th Cir. 2015), the Ninth Circuit followed, arrived at
the correct result, even though, like the majority, I disagree with some aspects
of those courts’ reasoning.

7

Although the respondent’s counsel declined to present testimony at the final hearing, he
did so in anticipation of the Immigration Judge’s ruling on a purely legal question that was
potentially determinative of the respondent’s statutory eligibility for relief under section
240A(a) of the Act. The Immigration Judge specifically noted that if she did not pretermit
the application, she would continue the matter for testimony.

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Specifically, I concur to the extent the majority holds that a wave through
“admission,” as that term is defined by section 101(a)(13)(A) of the Act,
8 U.S.C. § 1101(a)(13)(A) (2012), as the “lawful entry of the alien into the
United States after inspection and authorization by an immigration officer,”
must be in some lawful status and it disagrees with the above-cited decisions
that such an admission may be in an unlawful status. I agree that no
immigration officer acting in a procedurally regular manner intends to grant
entry into the United States to an alien who that officer believes has no lawful
status. 1
That being so, if the respondent was waved through as she alleged, 2 and
she was thereby “admitted,” as we held in Matter of Quilantan, 25 I&N Dec.
285 (BIA 2010), and as all agree, the question becomes whether she was
“admitted in any status” within the meaning of section 240A(a)(2) so as to
be eligible for cancellation of removal. The majority decision declares that
in all circuits except the Fifth and Ninth, “aliens must show that they
possessed some form of lawful immigration status at the time of admission
to establish that they were ‘admitted in any status’ under section 240(A)(a)(2)
of the Act.” Matter of Castillo Angulo, 27 I&N Dec. 194, 202 (BIA 2018).
This holding (or dicta, depending on how one regards it), from which I
dissent, is based on the mistaken premise that “admission in any status”
requires that the concededly lawful status under which the respondent was
admitted must later be identified. 3
I would conclude that the language “admitted in any status” does not
require that the admitted alien’s status be identified in order to meet the
requirement of section 240A(a)(2). While the majority argues that the phrase
“in any status” is redundant if not construed to require that the particular
lawful status be identified, such an argument is unpersuasive in the context
of that provision. The Supreme Court has repeatedly held in cases where a
statute uses the expansive word “any” that there is no basis in the text for
limiting the application of the statute to only certain types of instances. See,
e.g., Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 218−19 (2008); see also
Hanif v. Att’y Gen. of U.S., 694 F.3d 479, 485−86 (3d Cir. 2012) (noting that
1

Contrary to our dicta in Matter of Blancas, 23 I&N 458, 460 (BIA 2002), that the
concept of status “denotes someone who possesses a certain legal standing,” it is clear that
the Act in some instances does contemplate that a “status” may be unlawful. See, e.g.,
section 245(c)(2) of the Act, 8 U.S.C. § 1255(c)(2) (2012) (rendering ineligible for
adjustment of status an alien “who is in unlawful immigration status”). However, the fact
that a status can be unlawful does not mean that an “admission” can be in an unlawful
status.
2
I concur with the majority that remand is appropriate to determine, as a matter of fact,
whether the respondent was waved through.
3
I note that the majority decision has the consequence of creating a conflict in outcomes
depending on the circuit in which the issue arises.

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the “in any status” language could reflect congressional recognition that an
alien may initially be admitted to the United States in some status other than
as a lawful permanent resident and “immediately begins accumulating time
following his initial admission, regardless of the status” (emphasis added)
(quoting Nelson v. Att’y Gen. of U.S., 685 F.3d 318, 323 (3d Cir. 2012)).
Furthermore, as the Ninth Circuit observed in Saldivar, a comparison of
sections 240A(a)(1) and 240A(a)(2) of the Act suggests that the purpose of
“in any status” is to contrast the two provisions and to clarify the continuous
residence requirement. Saldivar, 877 F.3d at 817. Section 240A(a)(1) states
that an alien must have been “lawfully admitted for permanent residence for
not less than 5 years.” This provision is immediately followed by section
240A(a)(2), at issue here, which notably omits the word “lawfully” when
referring to an alien’s admission and states that the admission can be “in any
status.” This suggests that “in any status” was merely meant to emphasize
that an alien admitted into the United States in any lawful status, even if not
as a lawful permanent resident, is included within the relevant provision. See
Ali, 552 U.S. at 226 (finding that an arguably superfluous provision was
included “to remove any doubt”).
Moreover, the generous nature of the eligibility requirements for those
aliens who satisfy the section 240A(a)(1) requirement of having been a
lawful permanent resident for at least 5 years demonstrates the unlikelihood
that Congress would have intended the initial “admitted in any status”
element to necessitate that the particular lawful status of original admission
be identified. We held in Matter of Blancas, 23 I&N Dec. 458 (BIA 2002),
that the initial admission in any status requirement need not be followed by
a period of continuous lawful status, so long as the alien later satisfies the
requirement of continuous residence for at least 5 years as a lawful permanent
resident. In Blancas, we found further that an initial admission via a border
crossing card, perhaps the most minimal form of lawful status, satisfied the
provision’s requirement for an admission in any status. It is hardly likely
that, where Congress has made an alien eligible for cancellation of removal
who was admitted with a border crossing card, it would have demanded that
an alien who necessarily was admitted in some lawful status through a wave
through, as the majority concedes, must later identify the particular lawful
status in which he or she was admitted in order for the 7-year period of
continuous residence required by section 240A(a)(2) to commence.
Furthermore, the majority’s holding that an alien who was waved through
must establish the particular status that the alien possessed when he or she
was waved through, in order to give meaning to the words “in any status” in
section 240A(a)(2), is inconsistent with Matter of Quilantan, where we held
that a wave through was an “admission” within the meaning of section

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101(a)(13)(A) of the Act. 4 The majority relies for its conclusion on the
assertion that some aliens who are waved through may, in fact, substantively
lack lawful status when determined retrospectively. This almost certainly is
true, given that immigration officers who wave through occupied vehicles
inevitably will make mistakes. But that does not mean the occupants of those
vehicles have not been “admitted” under Quilantan, because any subsequent
determination that a waved-through alien lacked a lawful status at the time
does not retrospectively render the alien as not having been properly
“admitted.”
The only area in which we have found that an alien’s initially granted
status may be negated ab initio is in the case of a lawful permanent resident
whose status as such was wrongly conferred. Matter of Koloamatangi,
23 I&N Dec. 548 (BIA 2003). But even there our holding was that such an
alien could not show that he or she had been “lawfully admitted for
permanent residence,” not that such an alien had not been “admitted” in the
procedurally regular sense meant by Matter of Quilantan. Thus, for example,
if an alien were wrongly allowed to enter with a border crossing card that the
immigration officer failed to notice had expired, that would not detract from
the fact that such an alien had been inspected and authorized to enter the
United States and thus had been “admitted in any status” for purposes of
section 240A(a)(2); nor would it have changed the result in Matter of
Blancas. The same is true for an alien who was admitted via a wave-through
admission that was later determined to have been substantively mistaken.
I therefore respectfully dissent from the majority’s conclusion otherwise
and would find that, in any circuit, an alien is eligible to seek cancellation of
removal if he or she establishes an admission via a wave through, even if the
alien cannot demonstrate the particular lawful status under which admission
was authorized, and even if it is later found that he or she had no lawful status
at that time.

4

While our decision was in the context of establishing eligibility for adjustment of status,
the Department of Homeland Security has properly conceded at oral argument in this case
that the holding in Quilantan is not limited to that form of relief and applies to the concept
of admission in section 240A as well.

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Interini , Decision. #1496

.aurae or SBAW
In Visa Petition Proceedings
NYC-N--17649
Decided by District Director May 98, 1985
Since the term "of distinguished merit and ability" implies preeminence in the
gad of endeavor, nonfmmtrant classification under section 101(a) (15) (Et)
(1), Immigration and Nationality Act, for a singer-performer for a television
show, is denied an 18-year-old beneficiary who was unknown as a performer
a year ago; who has no record of extensive performances; whose recording
successes are few in number; while one of her recordings has reached the
pinnacle of success in Great Britain, their popularity has been Strictly
ephemeral; the supporting documentation, consisting of 20 clippings from
publications, is essentially biographical, offering virtually no critical appraisal of her performances or talents; the proposed salary for the work involved,
which does not include transportation and incidental expenses, would scarcely defray first-class transportation; and, in addition, an advisory opinion of
the American Federation of Televiskin and Radio Artists concludes the
beneficiary falls far short Of being of distinguished merit and ability.
-

A petition by Sullivan Productions, Incorporated, 524 West 57th
Street, New York, New -York, was submitted on May 19, 1965, to
accord Sandie Shaw, an 18-year-old native and citizen of Great
Britain, classification under section 101(a) (15) (H) (1) of the IMmigration and Nationality Act. The services of the beneficiary are
sought as a singer-performer for the Al Hirt Television Show.
The provisions of sections 101(a) (15) (H) (i) and 101(a) (15) . (H)
(ii) of the Act, which are applicable and to which reference will be
made, are quoted below:
Section 101(a) (15) the term "Immigrant" means every alien except an
alien who is within one of the following classes of nonimmigrant aliens—.
(B) an alien having a residence in a foreign country which he has• no intention of abandoning (i) who is of distinguished merit and ability and who is
coming temporarily to the United States to perform temporary - services of an
exceptional nature requiring such merit and ability; or (ii) who is homing
temporarily to the United States to perform other temporary services or labor,
if unemployed persons capable of performing such service or labor cannot be
found in this country.

277

Interim Decision #1496
A prior -petition to accord the beneficiary classification under sec-

101(a) (1009 (i) of the Act was submitted by the Hullabaloo
Company, New York, New York, on March- 26, 1965. Her services
were sought as a performer to sing popular British songs on the Hullabaloo Television Show. The beneficiary was to receive $1500 for
one performance.
The documentation submitted in support of the earlier petition
included a letter by Mike Maitland of Warner Brothers Records,
Incorporated, Burbank, California, stating the beneficiary is destined
to become an important record artist in the United States, and statements by the General News Editor of Husk Business magazine and
the Music Editor of Billboard magazine indicating the beneficiary to
be among the top English recording stars and a singer and performer
of distinguished merit and exceptional ability. Also furnished were
various record popularity tables. During the week ending October
31, 1964, the beneficiary's recording of "Always Something There to
Remind Me" was in the number one position in Great Britain. An
article appearing in the London Daily Mail of October 23, 1964, was
submitted indicating the beneficiary to have been awarded a silver
disc to commemorate the sueesss of this recording.
It is the policy of this Service, in the course of processing petitions
of this' nature, to request relating organizations and associations or
outstanding individuals in their respective fields to provide advisory
opinions regarding the qualifications, skills, or talents of the various
beneficiaries. The Assistant Executive Secretary of the American
Federation of Television and Radio Artists informed this office on.
April 7, 1965, that, in his opinion, the beneficiary is not a distinguished performer. He also advised.that the services to be performed
did. not appear to be exceptional hi nature and further asserfed that
her recordings were neither exceptional nor outstanding
. While the desires of unions to ban or limit the employment of foreign entertainers utilized to the . detriment of unemployed American
performers is appreciated, the opinions of such organizations must be
gives solne weight because of their pertinency in matters involving an
assessment of the merit and availability of performers in areas in
which they are of necessity experienced and knowledgeable.
It was toncluded that the evidence of record failed to establish that
the beneficiary is a person of distinguished merit and ability within
the contemplation of section 101(a) (15) (H) (i) of the Immigration
tion

and Nationality Act. On April 7, 1965, accordingly, the petition by

the Hullabaloo Company in behalf of Miss Shaw was denied.
A petition to accord Miss Shaw classification under section 101(a)
(16) (H) (ii) of the Act was submitted on May 24, 1965, by Puritan
278

-Interim Decision #1496
Fashions, Incorporated, New York, New York. Her cervices as a
character singer are needed by that organization. to perform. "rock
and roll" songs at a prilate showing of Rnglish fashions on June 2,
.1965, in WASP York City. The petitioner desires to utilize the service ,
associated with a certain style of clothing.. A "Sandie Shaw'.' line of
dresses will be introduced at the showing. The beneficiary is to
receive a salary of $1000 for one evening's work. A clearance order
from the Bureau of Employment Security certifying that qualified,
wbrkers are not available for referral to the employer was submitted.
The petition was approved on May 21, 1965.
Sullivan Productions, Incorporated, desires the services- of .Miss
Shaw as a singer and performer for a three-day period; including
rehearsals. The salary to be received by the beneficiary is $750.. She
will not receive additimial remuneration to cover travel -costs or incidental expenses. The videotape is slated to be recorded on June 2,
1905, and aired DR August 7, 1965.
Twenty-six clippings were submitted in support of the instant petition. .This material consists of items pertaining to the beneficiary,
ranging, from very brief notices of performance to feature-length
articles. Almost all are from British publications. Many of the clippings are minutia or essentially biographical items offering so little
specific information with respect to the beneficiary's performances or
serious critical appraisal of her talents as to be virtually immaterial.
Such items, devoted primarily to accounts of interviews held with the
beneficiary and stories of how she entered the entertainment field,
merely tend:to.establish a certain degree of popularity or notoriety.
Other items pertain to the beneficiary's success as a recording artist
and are similar to those submitted by the Hullabaloo Company. One
of Miss Shaw's recordings is again:seen to have occupied the number
one position in British record rating charts for a brief period. in October 1964. Since that time, she has made only a small number of
recordings and although.they have had a measure of success, none has
been rated at or near the number one position. Charts based upon.
United States sales do not indicate that any of -the beneficiary's
recordings ever placed near the "top ten."
The clippings are generally vague and do not offer any substantive
information pertaining to the beneficiary's experience as a performing artist. There are no concert reviews. No evidence is contained
therein relating to any professional .education or training she may
have had Many items relate to the beneficiary's rather unique style
of performing barefooted. The Bournemouth, Times 'of • March 5,
270

ofMksShawbecui.lknowthefdasion.

Interim Decision #1496 '
1965; states: "Intriguing as her voice is, it's her feet that have also
helped her gain recognition."

On May- 20, 1965, the American Federation of Television and Radio
Artists was informed of the current petition, appraised of the nature
of the supporting documentation, and requested to furnish an advisory opinion as to whether the beneficiary may be considered a performer of distinguished merit and ability. An opinion was also
solicited as to whether the duties to be performed require such a person. A letter dated. May 26, 1965, from the Assistant Executive Secretary of that organization was received which concludes that the
beneficiary falls far short of being of distinguished merit and ability
as those terms are usually defined. The letter states that her songs
were never very popular in the United. States but omits mention of
their popularity abroad. There is no opinion as to whether or not the
duties to be performed are exceptional in nature. This Service does
not dispute that at least one of the beneficiary's songs was, indeed, a

"hit" abroad.
It is held that the term "distinguished merit and ability" implies a
degree of skill and recognition substantially- above_ that ordinarily

encountered, to the extent that a person so described is preeminent in
his field of endeavor. This Service is charged with the responsibility
of determining whether or not a beneficiary meets this statutory requirement. On the other hand, the burden of proving that an entertainer possesses the necessary distinguished merit and ability and is to
perform services of an exceptional nature, as required by law, rests
upon the person or 'organization desiring to bring the alien to. the

United States. It is recognized that such determinations often lead to
controversey—professional contort and drama critics and book reviewers are seldom in total agreement. Very often completely divergent opinions pert ining to the same event axe authored by the
"experts." Among the criteria which may be applied in assessing
such intangibles as "distinguished merit and ability" are expert opinions, including critical reviews, popularity, box office appeal, sales of
records, and contractual arrangements, including remuneration.
While it is appreciated that sometimes the Service's decision is not
accepted without some disagreement by the parties affected, it must
be borne in mind that the issue involved is one where reasonable men
can differ in judgement.
The evidence of record shows that barely one year ago the beneficiary was unknown as a. performer. The praises and accolades contained in the clippings are not significantly different from those used

to describe any vocalist with a modest amount of success. There is no
record of extensive performance as she is in the relative infancy of
280.

Interim .Decision 4# 1496
her career. The beneficiary's recording successes are few in number
and cannot yet be considered to establish a degree of skill setting her
apart from the many others who have attained similar renown.
While on of her songs has reached the pinnacle of success in Britain,
their popularity has been strictly ephemeral, as is characteristic of
most songs, and even performers, in this idiom. The May 21, 1965
issue of Time magazine, for example, includes a -very comprehensive
survey of the "rock and roll" situation. Apropos of the short-lived
popularity of perforMers in this field is the following quotation from
this article : "Jan and Dean ('rock and roll' singers) have endured at
least until next week, which is unique in a market -where one-hit-andforever-miss performances are the rule rather than the exception."
The evidence considered in toto falls short of establishing that she has
the "distinguished merit and ability" contemplated by the statute.
It is noted, moreover, that a star of the caliber contemplated by this
section of the statute would ordinarily be expected to receive a much
higher salary than the $750 offered the beneficiary, for the amount of
work involved. This is especially the case when transpottation and II
incidental expenses are not included. Even if the beneficiary were to
travel "economy" class, the cost of transportation alone would amount
to almost $500, leaving barely $260 as her stipend. First class transportation Would virtually exhaust her proposed salary. The petitioning organization may not realistically be expected to be able to secure
the services of a performer of "distinguished merit and ability" at the
salary offered.
It has been concluded that the petitioner has not satisfactorily
borne the burdens imposed by the statute of astablialiing either that
the beneficiary is a person of distinguished merit and ability in her
field or that the duties to be performed are exceptional in nature
requiring such a person. For these reasons the petition will be
denied. This action is taken without prejudice towards the consideration of a further petition by Sullivan Productions, Incorporated, to
have thisbeneficiary accorded classification•under section 101(a) (15)
(H) (ii) of the Act Such a petition would have to be accompanied
by the requisite clearance order from the Bureau of Employment
Security and- regulatory fee.

ORDER: It is ordered that the petition of Sullivan Productions,
Incorporated, to have Sandra Goodrich, professionally known as
&mile Shaw, accorded classification under section 101(a) (15) (H)
(i) of the Immigration. and Nationality Act, -'he and the same is
hereby denied.

281


Interim Decision #2195

MATTER OF RODRIGUEZ

In Visa Petition Proceedings
A-20034976
Decided by Board April 13, 1973
The validity of the adoption of a child under Chinese customary law in Hong
Kong in 1967 is not vitiated by the fact the child was adopted by an unmarried
woman.
ON BEHALF OF SERVICE:

ON BEHALF OF PETITIONER:

Robert A. Vielhaber
Appellate Trial Attorney
(Brief filed)

Pro se

The United States citizen petitioner applied for immediate
relative status for the beneficiary as his stepson (an adopted child
of his wife) under section 201(b) of the Immigration and Nationality Act. The District Director, in an order dated November 4, 1971,
approved the petition but certified his decision to this Board. His
decision will be affirmed.
The beneficiary is an unmarried male, who was born in Hong
Kong on May 1'7, 1967. He is evidently of the Chinese race. He was
adopted, under Chinese customary law, by an unmarried woman,
Wong Man Lin, on' May 18, 1967. On November 20, 1967 the
petitioner and Wong Man Lin were married under the Hong Kong
Marriage Ordinance. They had lived together without being married for the previous two years. The petitioner and Wong Man Lin
came to the United States in August of 1969. The beneficiary
continued to reside in Hong Kong.
The status of an immediate relative is limited to a spouse,
parent, or child of a United States citizen by section 201(b) of the

Act. The term "child" is defined in section 101(b)(1XB) to include a
stepchild, whether or not born out of wedlock, provided the child
had not reached the age of 18 years at the time the marriage
creating the status of stepchild occurred. Inasmuch as the marriage between the petitioner and Wong Man Lin took place when
the beneficiary was six months old, this requirement has been
satisfied, provided that the beneficiary qualifies as a "child" of
Wong Man Lin.
335

Interim Decision #2195
Section 101(b)(1)(E) states that tha term "child" as used under
the immigration laws includes a child adopted while under the age
of 14 years, if he has thereafter been in the legal custody of and
resided with the adopting parent or parents for two years. As the
Attorney General held in Matter of M , 8 I. & N. Dec. 118 (A.G.,
1959), the two-year residence requirement does not exclude computation of residence occurring prior to the adoption. Residence and
custody with but one adopting parent is sufficient (Matter of Y .
K W , 9 I. & N. Dec. 176 (A.G., 1961)). In the present case, the
residence and custody requirements have, therefore, been met.
The question remains as to whether there was a valid adoption
at all. We have recently ruled, in Matter of Poon, Interim Decision
No. 2153 (BIA, 1972), that an adoption in Hong Kong under
Chinese law and custom of a male child, even though the child is
not related by blood, not of the same clan, and not of the same
surname, is valid for immigration purposes.
The objection posed by the Service is that adoption by an
unmarried female is not valid under Chinese customary law. We
find this position to be incorrect. The file contains a Memorandum
of Law from the Library of Congress dated October 4, 1971, which
is addressed, in part, to this question. According to the Memorandum of Law, "there is evidence to show that this was the practice
in China in some of those cases where the adoption was not
carried out with the motive of instituting an heir to carry on the
cult of the ancestors." The report also cites a noted authority on
Chinese law, M. H. van der Valk, for the proposition that "as this
type of adoption had no connection with the cult of the ancestors it
displayed different features. Both men and women could adopt.
..." The District Director pointed out that the courts of Hong
Kong have accepted the principle that a married woman was
capable, acting alone, of adopting a child, In Re T.M.H. (An
Infant), 1962 H.K.L.R. 184. •
There is nothing to indicate that in Hong Kong an adoption by
an unmarried person under Chinese customary law is not recognized as valid. See sections 4 and 11 of the Hong Kong Adoption
Ordinance of October 12, 1956. We conclude, therefore, that a child
can be adopted by an unmarried woman under Chinese customary
law as applied to Hong Kong.
The adoption of the beneficiary by Wong Man Lin, then, was a
valid adoption for immigration purposes. Her subsequent marriage to the petitioner established the stepparent-stepchild connection between the petitioner and the beneficiary required under
section 101(bX1)(B). We find the beneficiary, therefore, qualifies as
an immediate relative, as the petitioner's child, for purposes of
section 201(b) of the Act.
—

—

—

—

336

Interim Decision #2195
Consequently, the District Director was correct in approving the
petitioner's application. We shall affirm his decision and the
following order will be entered.
ORDER: The District Director's decision is affirmed.

337


Interim Decision #1450

MATTER

or

BECFNITER •

In Section 245. Proceedings
A-12720620
A-12858671

Decided by Regional Commissioner March. 24,1965
Application for adjustment of status, pursuant to section 245, Immigration and
Nationality Act, as amended, is denied, in the exercise of discretion, to an
alien who entered the United States as a nonimmigrant, having 'voluntarily
renounced her .permanent resident status previously acquired through immigration in order to facilitate her husband's re•entxy as a nonimmigrant.

These cases are before the Regional Commissioner on certification
by the District Director who denied the applications as a matter
of discretion. The applicants, husband and wife, were born in Germany and
are citizens of that country. They were last admitted to the United
States at New York City on August 20, 1964 as B-2 visitors for
pleasure: Mr. Brunner was previously admitted as a B-2 visitor
on September 30, 1961 and subsequently changed to student status.
Mrs. Brunner -was previously admitted for permanent residence as

a quota immigrant on January - 81, 1963. They were married at
Minneapolis, Minnesota on September 27, 1963. They returned to
Germany on May 30, 1964.
In a sworn statement before a Service of if cer Mr. Brunner testi, fied that when he and his wife left the United States in May 1964
they fully intended to-return to the United States to work and had
return tickets. In order to facilitate his return he obtained a nonimmigrant visitor's visa from the American Embassy, Bonn, Germany
. rather than await the issuance of an immigrant visa. He further
-

stated that before he could be issued a nonimmigrant visa, Mrs.

Brunner had to renounce her permanent residence status, which she
did by making the following declaration before the American Vice
Counstil at Bonn:

140

Interim Decision #1456
I voluntarily renounce my immigration visa to the United States. Since I
plan to return to the United States only for a vacation trip with my husband, I
no longer have any use for such a visa.

Mrs. Brunner was then also issued a nonimmigrant visa.
•0n September 22, 1964, a little more than a, month after their
arrival in the United States, Mr. and Mrs. Brunner filed their
applications, the denial of which is now being considered. On September 28, 1964 Mr. Brunner obtained permanent employment with
the Minnesota Mining and Manufacturing Company, St. Paul,
Minnesota.

It is concluded that the record in these cases amply supports the
District Director's decision. The applications must be denied.
1t is ordered that the applications be denied.

141


MATLER OF

J

In DEPORTATION Proceedings
A-3322627
Decided by Board February 23, 1960

Evidence—Failure to testify—Unfavorable inference proper only after prima
tack case of deportability is established.
Unfavorable inference from alien's refusal to testify can be drawn only after
a prima facie case of deportability has been established. Record should also
reflect that the alien was requested to give testimony, that there was a
refusal to testify, and ti_e ground of the refusal.
CHARGE ;

Order: Act of 1952—Section 241(a) (6) f8 U.S.C. 1251(a) (6)1—Member of
or affiliated with the Communist Party of the United States after
entry.

BEFORE THE BOARD

Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the ground stated
above.
Respondent, a 55-year-old married female, a native and last a
national of Russia, has been a resident of the United States since her
admission for permanent residence in 1905. The special inquiry
officer found that she had been a member of the Communist Party of
the United States at least in the years 1946 through 1949. The
appeal will be sustained.
The case was previously before us on appeal. On November 18,
1958, we reopened proceedings so that statements made by Government witnesses prior to the hearing might be made available to
respondent. Reopened hearing was held on June 24, 1959. At the
reopened hearing, a statement made by Government witness M—
was produced; M
was called as a witness; he identified the
statement as one he had made in 1954; and over objection of counsel
the statement was put into the record. Counsel refused to examine
the witness. The examining officer said there were no other statements known to the Government. Counsel was not permitted to
question the examining officer on this matter. An offer was made to
recall the other witnesses to make them available to counsel for
questioning concerning statements they had made. Counsel rejected
—

568

the offer. He asked that a hearing de move be given. By briefs
and at the two oral arguments, counsel raised questions of due process and the constitutionality of the laws governing the case; he
argued, that the evidence is not reasonable, substantial, and probative and that even if Communist Party membership is established it
is of such a "nominal" nature that proceedings must be terminated;
that hearing should have been reopened de 'move; that respondent
should have the right to question the examining officer to determine
whether other statements existed which might have to be produced;
and that it was improper to draw a presumption from the silence of

respondent.
The Service representative argued the evidence is sufficient; that
the examining officer's claim as to the nonexistence of additional
statements should have been sufficient; that in any event counsel
was given an opportunity to reexamine the witnesses to determine
if there were statements, and did not; that an inference has not
been drawn from the silence of respondent, but that the evidence of
the Government stands uncontroverted; and that the hearing officer handled the case properly.
The burden of proving that respondent was a member of the
Communist Party is upon the Government. This burden requires
the Service to establish its case by evidence that is reasonable, substantial, and probative. Respondent has been in the United States
for 55 years. She was eight months old when she entered. She is
married to a citizen of the United States and has two United States
citizen children. We cannot say that the proof which is required
has been furnished by the Service.
The special inquiry officer rested his case upon these matters:
(1) Respondent attended closed Communist Party meetings;
(2) Respondent's name appears in a Communist Party bulletin as one who
recruited members;
(5) Respondent sold the "Daily Worker," Communist Party paper.

We shall deal with each of the items seriatim. Attendance at
closed meetings of the Communist Party is found from testimony
of M . At the hearing, M— testified that he had been a member of the Communist Party from 1936 to 1940 and from 1942 to
1948. He stated that he collected dues; that some of the Communist Party meetings were restricted only to members; that he first
met respondent (C J—) at a picnic in about 1947 or 1948;
that in 1947 and 1948 she occasionally attended meetings of the
Communist Party restricted only to members; and that he had been
at open meetings with respondent. He could not give an estimate
of the number of meetings because he could not recall. He testified
that respondent took part. in the meetings, but he could not recall
enough about the meetings to give details. He said that respondent
569

sold the "Daily Worker"; and that when they had "an affair or
something" he had seen her at work in the kitchen scrubbing. He
said that he had a membership card but that he could not say
whether respondent had one. He stated that he did not know "any
other J s as members" of the Communist Party during the period of his membership.
A statement made by M— prior to the hearing reveals that he
vas asked whether he knew a person by the name of "C
pr Mrs. R
J
" and that he replied that he "was acquainted
with a person known as Mrs. R J "; that he first met, her in
about 1937 or 1938; that he met her at meetings of the International
Workers Order; and that during 1946 and 1947 he saw her on sevsi:31 occasions at closed meetings of the Communist Party. He said
that he could not recall having ever seen either her Communist Party
,card pr payment of Communist Party dues by her. He stated that
respondent would have had to have been a member of the Communist
Party to have attended the meetings and that he knew respondent's
husband R J to have attended closed meetings of the Communist Party.
We pan give M
's testimony little weight. His recollection is
admittedly poor. He could not recall what went on at the meetings
or what respondent did there. His statement made in 1954 differs
from his testimony at the hearing as to when he fist met respondent
and the years he saw her at Communist Party meetings. In his
statement, he apparently attempted to make the distinction between
knowing Mrs. R J and C J and each reference to
respondent was in terms of Mrs. J

or Mrs. 1t

J

. Yet,

at the hearing, he identified respondent as if he had known her as
C J
. At the hearing, the witness testified he did not know
any other J—s as a member of the Communist Party; yet, his
statement in 1954 reveals that he knew that R J attended
closed meetings of the Communist Party which were open only to
members of the Party. Moreover, it is strange that the witness, who
had the duty of collecting dues, did not collect from respondent. In
view of the limited association M
had with respondent, the passage of time, his poor recollection, the discrepancies in his testimony,
and the lack of care in making the distinctions that he knew about,
we cannot find M 's testimony reasonable, substantial, and probative proof of membership in the Communist Party. The record
also fails to establish how AI knew that the meetings were closed
-meetings.
The special inquiry officer has found that respondent's name appears in a 1946 Communist Party bulletin as one who recruited
-members. Exhibit 5 shows that one "C. J " was an active worker
in recruiting members for the Communist Party. The special in570

quiry officer found that respondent is the "C. J
." The special
inquiry officer came to this conclusion because street directories for
the area listed only one "C. J
," and M
had testified that he
knew no other J
who was a member of the Communist Party.
The special inquiry officer concluded that because of the possibility
of error and because the "C. J
" listed could have lived out of
the area, the directories of themselves were of little or no evidentiary
value. He gave them weight only because of M
's testimony that
he knew no other J
who was a member of the Communist Party.
There are two reasons why M
's statement ran add nothing to
knew at least one
the weight to be given the directories: (1) M
other J— who was a member of the Communist Party and did
not reveal it, and (2) there is nothing to show that M
knew
all the members of the Communist Party in the area.
The special inquiry officer found the sale of the "Daily Worker"
significant because C testified that he knew no one who distributed the Communist Party paper who was not a member of the
Communist Party, except for distribution at newsstands and places
of business. However, this witness did not testify that he knew all
the persons who distributed the paper, and that he knew they were
Communist Party members. He did not know respondent. He did
not testify that the rules of the Communist Party forbade the sale
of the "Daily Worker" by others than Communist Party members.
This evidence is neither substantial nor probative. The special inquiry officer found that respondent had been a member of the Communist Party from 1946 through 1949. The only "evidence" as to
membership in 1949 is the testimony that respondent solicited a subscription to the "Daily Worker" from a non-Communist and left
,copies with him for distribution to customers in his store. This evidence is not sufficient.
The final item for consideration is the fact that respondent did
not testify. The special inquiry officer did not state that he assigned any weight to her silence in arriving at a determination that
respondent had joined the Communist Party. He did state that it
prevented respondent from proving that her membership had been
"nominal." At oral argument, the Service representative stated that
there is no issue as to the drawing of an inference, since none was
drawn, but that the issue is merely whether the unrebutted evidence
is sufficient. We shall set forth the matters of record which bear
upon respondent's failure to testify. At the outset of the hearing,
the special inquiry officer informed counsel:
• * = Before you do that [make motions], however, I understand that 7011
—

—

.

-

will not have the respondent testify in this proceeding.
By CouNsm:
That's right.

571

By SPECIAL INqums OFFICER
Well, in that case, Mrs. J--- needn't sit in the chair any more. She can
sit alongside of you and then you can make your motions. (p. 4, hearing
February 24, 1958)

At the reopened hearing, respondent was not called upon to testify. The only other reference in the record to testimony by respondent is found in a question-and-answer statement taken over 3
years before the hearing by Service investigators. (This statement
was taken after respondent, refusing to obey a subpoena issued by
the Service, had been ordered to appear by a Unified States District
Court. She had apparently taken the position that the Service could
not require the appearance of a person who was not entering or
passing through the United States.) At that time, respondent refused to testify on many subjects including her family ; membership
in the Communist Party or the International Workers Order; and
attendance at functions of the American Youth for Democracy, the
Progressive Party, the Ohio Civil Rights Congress, and the Progressive Women. She refused to testify on a claim of privilege.

(The special inquiry officer's statement that respondent refused to
testify at both hearings must be viewed in light of the facts we
have set forth.)
We have held that it is proper to draw an unfavorable inference
from an alien's refusal to answer pertinent questions, after a prima
,
facie case of deportability has been established (Matter of 0
6 I. & N. Dec. 246). We do not believe a prima fade case of deportability was established here. Suspicion cannot be solidified into proof
—

by the mere silence of respondent ( United States ex rel. Tretturten v.
Reimer, 79 F.2d 315, 31'7 (C.A. 2, 1935)). Moreover, a record of

hearing should clearly show that an alien was called upon to give
testimony, that there was a refusal to testify, and the ground of the
refusal. It is also well to inform an alien who refuses to testify
that the Government is entitled to draw an unfavorable inference
from the failure. There is a failure to prove either membership or
affiliation. Proceedings will be terminated. Because of the action
we take, we shall not discuss the many points raised by counsel.
At the second oral argument, counsel took the special inquiry officer to task for the way in which he had cross-examined Government
witness P—. (The special inquiry officer examined P— to determine if he was motivated by animosity in testifying against respondent.) Counsel contends that the special inquiry officer interfered with the cross-examination of counsel, taking over in the middle of counsel's cross-examination, and that when the special inquiry
officer developed that animosity existed against respondent, he refused to let counsel take over the examination. The record is to the
contrary. The special inquiry officer did not commence the cross572

examination of P— until counsel had indicated that he had finished with the witness. It is to the special inquiry officer's credit
that he discovered and developed the animosity that P— had toward respondent and determined the extent to which it influenced
P—'s testimony. After the existence of animosity was developed,
counsel did not request that he be permitted to develop the matter.
After the special inquiry officer had completed his examination, he
informed counsel he was at liberty to interrogate the witness but
counsel stated he had no questions. The special inquiry officer conducted the case in an impartial manner
Order: It is ordered that the appeal be and the same is hereby
sustained and that the proceedings be terminated.