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Interim Decision #3826

Matter of Oshane Shaneil CROSS, Respondent
Decided February 12, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A person born out of wedlock may qualify as a legitimated “child” of his or her
biological parents under section 101(c)(1) of the Immigration and Nationality Act,
8 U.S.C. § 1101(c)(1) (2012), for purposes of citizenship if he or she was born in
a country or State that has eliminated all legal distinctions between children based on the
marital status of their parents or had a residence or domicile in such a country or State
(including a State within the United States), if otherwise eligible. Matter of Hines,
24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec. 962 (BIA 2006),
overruled in part. Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), and Matter of
Goorahoo, 20 I&N Dec. 782 (BIA 1994), reaffirmed.
FOR RESPONDENT: Crescenzo DeLuca, Esquire, Whethersfield, Connecticut
FOR THE DEPARTMENT OF HOMELAND SECURITY: Amit Patel, Assistant Chief
Counsel
BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members:
COLE, Board Member:

In a decision dated May 25, 2011, an Immigration Judge ordered the
respondent removed from the United States. The respondent has appealed
from that decision. The appeal will be sustained and the proceedings will
be terminated.
The only question on appeal is whether the respondent derived
United States citizenship upon the naturalization of his father pursuant to
section 320(a) of the Immigration and Nationality Act, 8 U.S.C. § 1431(a)
(2000). The Immigration Judge, relying on Board precedent, determined
that the respondent—who was born out of wedlock in Jamaica to parents
who never married—had not been “legitimated” under Jamaican law and
thus did not qualify as his father’s “child” within the meaning of the
citizenship provisions of the Act. See section 101(c)(1) of the Act, 8 U.S.C.
§ 1101(c)(1) (2012) (defining the term “child” for purposes of title III of
the Act, which is entitled “Nationality and Naturalization”).
We now hold that a person born abroad to unmarried parents can qualify
as a legitimated “child” under section 101(c)(1) of the Act if he or she was
born in a country or State that has eliminated all legal distinctions between
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Interim Decision #3826

children based on the marital status of their parents or has a residence or
domicile in such a country or State (including a State within the
United States), irrespective of whether the country or State has prescribed
other legal means of legitimation. In so holding, we recede from Matter of
Hines, 24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec.
962 (BIA 2006), to the extent these decisions hold that the concept of
“legitimation” must be interpreted uniformly throughout the Act, including
for purposes of visa preference classification. Consequently, our holdings
in Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), and Matter of Goorahoo,
20 I&N Dec. 782 (BIA 1994), are hereby reinstated and reaffirmed.

I. FACTUAL AND PROCEDURAL HISTORY
On July 3, 1988, the respondent was born out of wedlock in Jamaica to
parents who were not then citizens or nationals of the United States. At the
time of the respondent’s birth, the Jamaican Status of Children Act
(“JSCA”) of 1976 had eliminated the legal distinctions between legitimate
and illegitimate children in that country. Before the respondent was born,
we had also issued Matter of Clahar, which interpreted the JSCA and held
that a Jamaican child who was born out of wedlock after the effective date
of the JSCA is legitimated under Jamaican law for purposes of visa
preference classification. In 1995, the respondent’s father, who was then
a native and citizen of Jamaica, placed his name on the respondent’s
Jamaican birth registration form, thereby qualifying the respondent as
a legitimated child for purposes of visa preference classification under the
Act. See Matter of Pagan, 22 I&N Dec. 547, 549 & n.1 (BIA 1999)
(indicating that a Jamaican birth certificate amended to include the father’s
name may, in light of other evidence of record, be sufficient for visa
preference classification).
The respondent’s father eventually immigrated to the United States and
subsequently accorded the respondent preference classification as his
“child.” 1 On September 2, 2000, at the age of 12, the respondent was
admitted to the United States as an immigrant and thereafter resided in this
country as a lawful permanent resident. On August 3, 2001, the
respondent’s father became a United States citizen by naturalization while
the respondent was in his father’s legal custody.
On January 15, 2010, the respondent was convicted of burglary in
Connecticut, prompting the Department of Homeland Security (“DHS”) to
initiate removal proceedings. The respondent moved to terminate the
Section 101(b)(1) of the Act defines the term “child” for purposes of visa preference
classification, as well as matters pertaining to removal proceedings.
1

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proceedings, however, on the ground that he became a United States citizen
by operation of law when his father naturalized in August 2001. 2 In
support of his citizenship claim, the respondent invoked section 320(a) of
the Act, which at all relevant times has provided as follows:
A child born outside of the United States automatically becomes a citizen of the
United States when all of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of the United States, whether by
birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in the legal and physical custody
of the citizen parent pursuant to a lawful admission for permanent residence.

The Immigration Judge found that the respondent did not derive
United States citizenship because the respondent met all of the
requirements of section 320(a), except he did not qualify as his father’s
“child” under section 101(c)(1), which provides that the term “child” means
an unmarried person under twenty-one years of age and includes a child
legitimated under the law of the child’s residence or domicile, or under the law of
the father’s residence or domicile, whether in the United States or elsewhere . . . , if
such legitimation . . . takes place before the child reaches the age of 16 years . . . ,
and the child is in the legal custody of the legitimating . . . parent or parents at the
time of such legitimation . . . .

As these provisions make clear, for derivative citizenship purposes,
a person born out of wedlock is considered a “child” of his United States
citizen parent or parents only if he was “legitimated” under the law of his
own residence or domicile (or that of his father) before turning 16 and
while in the legitimating parent’s legal custody. The Immigration Judge
concluded that the respondent had not been “legitimated” under Jamaican
law because his biological parents never married. 3 In reaching that
conclusion, the Immigration Judge relied on Matter of Hines, a derivative
citizenship case arising under former section 321(a) of the Act, 8 U.S.C.
§ 1432(a) (1988), where we held that the sole means of “legitimating”

2

In removal proceedings, evidence of foreign birth gives rise to a presumption of
alienage, which the respondent may rebut by coming forward with evidence to
substantiate his claim to United States citizenship. E.g., Matter of Rodriguez-Tejedor,
23 I&N Dec. 153, 164 (BIA 2001).
3
The Immigration Judge also found that the respondent’s father never legitimated him
under the procedures prescribed for that purpose by the State of Connecticut.

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a child born out of wedlock under Jamaican law was the marriage of the
child’s natural parents.4 24 I&N Dec. at 547–48.
The respondent argues that he was the legitimated child of his father
under Board precedents issued before Matter of Hines. He further asserts
that Hines has an impermissible retroactive effect as applied to his case
because it embodies a different understanding of the “legitimation” concept
from that which was in effect at the time of his father’s naturalization.
See generally SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (stating that
the retroactivity resulting from a new principle “announced by a court or by
an administrative agency . . . must be balanced against the mischief of
producing a result which is contrary to a statutory design or to legal and
equitable principles”).

II. ANALYSIS
The respondent qualified as a legitimated child of his father for visa
preference purposes under Matter of Clahar, 18 I&N Dec. at 2–3. In that
case, we held that the JSCA eliminated the legal disabilities between
legitimate and illegitimate children by operation of law and conferred
equality of rights. We also acknowledged the existence of the Legitimation
Act of Jamaica, which required the parents to marry for an out-of-wedlock
child to be legitimated, and concluded that the illegitimate status distinction
was consequently not eliminated by law. Nevertheless, we found that the
JSCA, which conferred equality of rights, was determinative for according
visa petition benefits.
In addition, we credited a memorandum from the Jamaican Ministry of
Justice, which represented that under the JSCA, “the legal duties and
obligations of a father towards a child born out of wedlock are in all
4

Former section 321(a) of the Act provided, in pertinent part, as follows:
A child born outside of the United States of alien parents . . . becomes a citizen of
the United States upon fulfillment of the following conditions:
...
(3) The naturalization of the . . . mother if the child was born out of wedlock
and the paternity of the child has not been established by legitimation . . . .

(Emphasis added.) This statute was repealed and replaced by section 320(a) of the Act,
effective February 27, 2001. See Child Citizenship Act of 2000, Pub. L. No. 106-395,
§§ 101(a), 103(a), 104, 114 Stat. 1631−33. However, the new citizenship provisions
were not retroactive, so former section 321(a) continues to apply to any derivative
citizenship claim made by an individual who turned 18 before the statute’s effective date.
See Matter of Rodriguez-Tejedor, 23 I&N Dec. at 162.

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significant respects the same as those of a child born in wedlock.”
Id. at 2 (internal quotation marks omitted). As we noted, however, that
memorandum also acknowledged that Jamaican law retained some “minor
statutory distinctions” between children based on the marital status of their
parents in order “to minimize the problems associated with determining
rights and status in an area where difficulties may arise in identifying the
natural father of a child.” Id.
In a similar visa petition case, we addressed the Guyanese Children
Born Out of Wedlock (Removal of Discrimination) Act of 1983, which
effectively eliminated the legal distinction between children born in
wedlock and those born out of wedlock. Matter of Goorahoo, 20 I&N Dec.
at 783−85. We held that for purposes of visa preference classification,
children born out of wedlock in Guyana after the law’s May 18, 1983,
effective date are deemed legitimate and those under the age of 18 years
prior to that date are legitimated children. Unlike the JSCA, the Guyanese
law did not contain any broad provision purporting to eliminate all legal
distinctions between children based on the marital status of their parents;
rather, it simply amended preexisting Guyanese laws on an individual basis.
Id. at 783. Nevertheless, based on an analysis conducted by the Library of
Congress, we concluded that children born out of wedlock in Guyana have
rights equal to those of children born in wedlock. Id. at 784.
Subsequently, in the context of determining derivative citizenship, we
interpreted former section 321(a)(3) of the Act, which provided in relevant
part that a child born out of wedlock to alien parents could derive
United States citizenship through the naturalization of his or her mother,
but only if “the paternity of the child has not been established by
legitimation.” See Matter of Hines, 24 I&N Dec. at 546; Matter of Rowe,
23 I&N Dec. at 963. Considering the apparent legislative purpose of that
language, we held that individuals born out of wedlock in Jamaica and
Guyana could derive United States citizenship through the naturalization of
their mothers so long as they could prove that their fathers had not
confirmed or established their paternity “by legitimation” under the
domestic relations laws of those countries.5 See Matter of Hines, 24 I&N
Dec. at 547–48; Matter of Rowe, 23 I&N Dec. at 967. In each case, we
5

Although there is little legislative history regarding former section 321(a)(3), it has
generally been understood that the language requiring a putative United States citizen to
prove that his or her paternity has not been established by legitimation was devised by
Congress as a means of safeguarding the parental rights of alien fathers. See, e.g.,
Brandao v. Att’y Gen. of U.S., 654 F.3d 427, 429–30 & n.5 (3d Cir. 2011); Barthelemy
v. Ashcroft, 329 F.3d 1062, 1066 (9th Cir. 2003); Wedderburn v. INS, 215 F.3d 795, 800
(7th Cir. 2000).

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concluded that where a jurisdiction requires an affirmative act to legitimate
an out-of-wedlock child, paternity is not established without the requisite
act, even if the jurisdiction has enacted a law to place children on equal
footing without regard to the circumstances of their birth.
Although Jamaica and Guyana enacted laws that effectively eliminated
the legal distinction between children born in wedlock and those born out
of wedlock, both countries retained a formal means of legitimating—the
marriage of the biological parents. We therefore held that for derivative
citizenship purposes, paternity could be established by legitimation only
through the affirmative act of parental marriage. Thus, the respondents in
Hines and Rowe could derive citizenship from the naturalization of their
mothers under former section 321(a)(3) because paternity had not been
established by the marriage of their parents, which was the only means of
legitimation. We continue to espouse that holding and believe it embodies
the correct understanding of former section 321(a)(3).
Nevertheless, we find it necessary to recede from Matter of Hines and
Matter of Rowe to the extent they addressed matters beyond the scope of
former section 321(a)(3) and overruled Matter of Clahar and Matter of
Goorahoo, respectively. In Hines and Rowe, we declared that the term
“legitimation” should not have two separate meanings within the Act,
regardless of variations in statutory context. Thus, we found that our
interpretation of the term under section 321(a)(3), which makes the
establishment of “paternity . . . by legitimation” a barrier to citizenship, was
controlling in all other statutory contexts, including those that make proof
of legitimation a prerequisite for eligibility for a benefit, such as visa
preference classification. See Matter of Hines, 24 I&N Dec. at 548; Matter
of Rowe, 23 I&N Dec. at 967. Although neither Hines nor Rowe elucidates
the Board’s reasons for concluding that “legitimation” must be interpreted
uniformly throughout the Act, we apparently understood it to be required
by the Supreme Court’s decision in Clark v. Martinez, 543 U.S. 371 (2005).
In that case, the Court held that a single statutory phrase cannot have
different meanings in different factual contexts. Clark v. Martinez, 543
U.S. at 386 (rejecting “the dangerous principle that judges can give the
same statutory text different meanings in different cases”). Thus, Clark
would forbid us from giving the statutory phrase “paternity . . . has not been
established by legitimation” one meaning for people born in Jamaica and
another for those born in Guyana. Id. at 378 (“To give [the] same words
a different meaning . . . would be to invent a statute rather than interpret
one.”).
In Hines and Rowe, however, we read Clark much more broadly, as if it
required us to interpret the term “legitimation” identically throughout the
Act, regardless of variations in statutory context. That understanding was
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Interim Decision #3826

erroneous and conflicts with the well-settled rule that “[m]ost words have
different shades of meaning and consequently may be variously construed,
not only when they occur in different statutes, but when used more than
once in the same statute or even in the same section.” Envtl. Def. v. Duke
Energy Corp., 549 U.S. 561, 574 (2007) (alteration in original) (quoting
Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932))
(internal quotation marks omitted). In short, “[a] given term in the same
statute may take on distinct characters from association with distinct
statutory objects calling for different implementation strategies,” even if the
term is statutorily defined. Id. (citing Robinson v. Shell Oil Co., 519 U.S.
337 (1997)). Therefore, in finding that Clark v. Martinez required us to
interpret the concepts of “legitimation” in section 101(c) of the Act and
“paternity . . . established by legitimation” in former section 321(a)(3) as
the same, we misconstrued the Supreme Court’s decision.
Upon further consideration, we conclude that the interpretation of
“paternity . . . established by legitimation” that we have adopted for
purposes of former section 321(a)(3)—which requires an affirmative act by
the father in accordance with the law of the jurisdiction—cannot properly
be extended to the interpretation of “legitimation” for purposes of the
definition of a “child” in sections 101(b)(1) and (c)(1) of the Act.6
To illustrate this point, we consider the language of former section
321(a)(3) itself, which requires a person born out of wedlock to prove both
that he was a “child” when his mother naturalized and that his
“paternity . . . ha[d] not been established by legitimation” at that time.
Clearly, if “legitimation” has the same meaning in section 101(c)(1) as
“paternity . . . established by legitimation” does in section 321(a)(3), then
the statutes are in conflict. A person born out of wedlock seeking to qualify
as a “child” has to prove “legitimation,” yet if he did so, he would be
unable to prove the absence of “paternity . . . established by legitimation”
required by section 321(a)(3). Conversely, anyone who proves that his
“paternity . . . has not been established by legitimation” under section
321(a)(3) would accordingly be unable to qualify as a “child.” The
necessary corollary of this paradox is that the term “legitimation” in section
101(c)(1) must mean something different from what “paternity . . .
established by legitimation” means in former section 321(a)(3).
6

Consequently, we withdraw from Hines and Rowe to the extent that they require
“legitimation” to be given the same meaning throughout the Act. We also conclude that
Hines and Rowe improperly overruled Clahar and Goorahoo, which were visa petition
cases that interpreted the “legitimation” concept for purposes of the definition of
a “child” in section 101(b)(1) of the Act. Accordingly, our holdings in Clahar and
Goorahoo are reinstated and reaffirmed.

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The remaining question is what “legitimation” in section 101(c)(1)
means. Given this section’s express provision that “legitimation” is
determined by the law of the child’s (or his father’s) residence or domicile,
any satisfactory answer to that question is complicated by the growing
consensus—both in the United States and abroad—against labeling children
“legitimate” and “illegitimate” by virtue of the marital status of their
parents. In recent decades, many countries have legally marginalized the
legitimation concept, retaining some of its features for purposes of settling
inheritance disputes but enacting legislation that otherwise places the
children of unmarried parents on the same legal footing as those born
to married couples. 7 Any coherent understanding of legitimation as
a stand-alone concept—rather than as a mechanism for establishing
paternity, as in former section 321(a)(3)—must take this reality into
account.8
In light of the foregoing, we interpret section 101(c)(1) of the Act to
mean that a person born abroad to unmarried parents can be a “child” for
purposes of section 320(a) if he or she is otherwise eligible and was born in
a country or State that had eliminated legal distinctions between children
based on the marital status of their parents or had a residence or domicile in
such a country or State (including a State within the United States).
7

See, e.g., Iracheta v. Holder, 730 F.3d 419, 425 (5th Cir. 2013) (Tamaulipas, Mexico);
Matter of Goorahoo, 20 I&N Dec. at 782 (Guyana); Matter of Hernandez, 19 I&N Dec.
14, 16 (BIA 1983) (Colombia); Matter of Clarke, 18 I&N Dec. 369, 371–72 (BIA 1983)
(Barbados); Matter of Mesias, 18 I&N Dec. 298, 299 (BIA 1982) (Haiti); Matter of
Espinoza, 17 I&N Dec. 522, 523–24 (BIA 1980) (Bolivia); Matter of Sanchez, 16 I&N
Dec. 671, 672 (BIA 1979) (Honduras); Matter of Maloney, 16 I&N Dec. 650, 651–52
(BIA 1978) (Panama); Matter of Wong, 16 I&N Dec. 646, 648 (BIA 1978) (China);
Matter of G-, 9 I&N Dec. 518, 519 (BIA 1961) (Hungary); Matter of K-, 8 I&N Dec. 73,
75–76 (1958) (Poland). Similarly, a number of States within the United States have
enacted statutes placing the children of unwed parents on equal legal footing with those
born to married couples. See, e.g., Ariz. Rev. Stat. Ann. § 25-1401 (2014) (West); Cal.
Fam. Code § 7602 (West 2014); Mass. Gen. Laws Ann., ch. 209C, § 1 (West 2014); N.J.
Stat. Ann. § 9:17-40 (West 2014); Or. Rev. Stat. Ann. § 109.060 (West 2014); 23 Pa.
Cons. Stat. Ann. § 5102(a) (West 2014).
8
By tying the meaning of “legitimation” to the requirements of the law of the child’s
residence or domicile (or that of the father), Congress anticipated that the meaning of the
term would vary depending upon (1) the law in the country or State of residence or
domicile and (2) the child’s date of birth. “Legitimation” is thus an evolving, rather than
a fixed, concept. See, e.g., Matter of Campuzano, 18 I&N Dec. 390, 392 (BIA 1983)
(holding that whether a child born out of wedlock in Ecuador qualifies as a “legitimate”
child in visa petition proceedings depends on whether he was born before or after the
August 7, 1970, change of Ecuadorean law); cf. Matter of Gomez, 16 I&N Dec. 72
(BIA 1976) (governing questions of legitimation of persons born out of wedlock in
Ecuador before the August 7, 1970, change of law).

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Applying this rule to the facts of this case, we conclude that the
respondent is his father’s “child” within the meaning of sections 101(c)(1)
and 320(a) of the Act. There is no dispute that the respondent is the
biological child of the man through whom he seeks to derive United States
citizenship or that he was born in Jamaica after the 1976 effective date of
the JSCA. Further, the record contains no evidence to suggest that the
respondent was not in his father’s legal custody at the time of his birth. See
8 C.F.R. § 322.1 (2014) (establishing a rebuttable presumption that a
biological parent has legal custody of his or her child); see also Matter of
Rivers, 17 I&N Dec. 419 (BIA 1980). Accordingly, the respondent’s
appeal will be sustained and the removal proceedings against him will be
terminated.
ORDER: The appeal is sustained and the removal proceedings are
terminated.

493


Interim Decision #2221

MATTER OF NAMIO

In Deportation Proceedings
A-19356812
Decided by Board August 17, 1973
(1) An alien's false statements under oath to a border patrol agent in a routine
question-and-answer interview preclude a finding of good moral character
under section 101(f)(6) of the Immigration and Nationality Act.
(2) The alien's recantation of the false testimony approximately one year later
when disclosure of its falsity was imminent was neither a voluntary nor
timely retraction and, therefore, was ineffective to remove the bar to his
establishing good moral character under section 101(f)(6) of the Act.
(3) In the absence of a showing of a valid basis for adjournment, an immigration
judge's refusal to grant adjournment of the deportation hearing and counsel's
subsequent withdrawal did not deprive the alien of a fair hearing where the
attorney had represented him for approximately one year, the alien had been
afforded ample opportunity to present testimony, and the hearing had progressed to the point of the immigration judge's rendering of his decision.
CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entered the United
States without inspection.
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Jonathan E. Avirom, Esquire
22b Broadway
New York, New York 10007
(Brief filed)

Irving A. Appleman
Attorney

Appellate Trial

This is an appeal from an order of an immigration judge, dated
May 18, 1972, which found the respondent deportable as charged
and denied his application for voluntary departure. The appeal will
be dismissed.
The respondent is a 28-year-old male alien who is a native and
citizen of Italy. He departed Italy on May 18, 1971 and arrived in
Toronto, Canada on the following day. While in Toronto, he was
contacted by an individual who identified himself to the respondent as "the man that your relatives told you to expect" (Tr. p. R59). On the twenty - second of May 1971, both men journeyed to
Montreal by bus. On the following day, the respondent was
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Interim Decision #2221
informed that if he walked down a particular street, at a designated time, he would be picked up and driven directly to New
York. He was told to carry his passport and to leave his suitcases
at a certain house. The respondent followed the instructions and
was picked up as planned. He crossed the border without being
examined or inspected by an immigration officer.
At approximately 8:15 p.m., on the same day, the respondent

was apprehended by the border patrol. Shortly thereafter, while
under oath, he made false statements to a border patrol agent. He
falsely stated that he traveled to Montreal alone; he did not think
it was necessary to stop at the border; he hitchhiked to the United
States; he had three rides from Montreal to the United States; he
did not know if he was in Canada dr the United States when he

was last picked up; and he did not know when he entered into the
United States.
The following day, the respondent pled guilty, and was found
guilty, of entering the United States without presenting himself
for inspection by a United States immigration officer. On the same
day, he was served with an order to show cause alleging that he
was subject to deportation pursuant to section 241(a)(2) of the
Immigration and Nationality Act.
At the respondent's first deportation hearing, on July 8, 1971, he
admitted the truth of the factual. allegations containvd in the
Order to Show Cause, conceded deporLability, and was denied the

privilege of departing voluntarily from the United States. The
respondent appealed that decision to this Board and we remanded
"to permit respondent to establish that he is eligible for voluntary
departure and merits that relief as a matter of discretion." At the
reopened hearing on May 18, 1972, the immigration judge again
denied respondent's application for voluntary departure. However,
rather than predicating his decision on administrative discretion
as he had previously, the immigration judge concluded that the
respondent was statutorily ineligible for relief under section 244(e)
of the Immigration and Nationality Act. The respondent appealed
that decision.
In order to qualify for the discretionary benefit of voluntary
departure, the respondent must establish that he has been a

person of good moral character for at least five years preceding his
application. Section 101(f)(6) of the Act provides that:
No person shall be regarded as, or found to be, a person of good moral
character who, during the period for which good moral character is required to
be established, is, or was—
(6) one who has given false testimony for the purpose of obtaining any
benefits under this Act:

We agree with the determination of the immigration judge that
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Interim Decision #2221
he was statutorily precluded from finding that the respondent was
a person of good moral character since the respondent made false
statements, while under oath, to a border patrol agent on May 23,
1971. 1 Since relief under section 244(e) of the Act is not available
unless the person who is seeking the discretionary benefit is found
to be a person of good moral character, the immigration judge
correctly denied the respimdent's application for voluntary departure.
In two similar cases, Matter of G—L—T—, 8 I. & N. Dec. 403
(BIA,1959) and Matter of Ngan, 10 I. & N. Dec. 725 (BIA,1965), this
Board held that false testimony given, while under oath, at a
quasi-judicial hearing, constitutes false testimony within the
meaning of section 101(fX6) of the Act. Although, these two cases
involved a quasi-judicial setting and the instant ease does riot, we
do not deem this distinction to -be important. We think that
restricting the statutory meaning of false testimony to statements
made in an administrative, judicial or quasi-judicial proceeding
would be an impermissible delimitation not intended by Congress?
The respondent contended that he is eligible for voluntary
departure because of his recantation. This argument is without
merit since we have consistently held that the recantation must be
voluntary and without delays An analysis of the facts of this case
indicates that the respondent did not retract his statement until
approximately one year later, and the retraction was not made
until it appeared that the disclosure of the falsity of the statements was imminent. It is evident that the recantation was
neither voluntary nor timely.
We conclude that the determination of the immigration judge
that the respondent was statutorily ineligible for voluntary departure was correct, and the respondent's appeal from that determination will be dismissed.
At the conclusion of the respondent's defense, his attorney
requested an adjournment so that he could further discuss certain
matters with his client. The requested adjournment was denied by
a The false statements were made during the course of a routine question-andanswer interview which was transcribed verbatim.
2 For a discussion of the necessity of construing the term "false testimony"
narrowly, see Sharaiha v. Hoy, 169 F.2d 539 (S.D. Cal., 1959) and Matter of LD—E—, 8 I. & N. Dec. 399 (BIA, 1959), overruling Matter of Z—, 5 I. & N. Dec. 514
(BIA, 1953).
3 Matter of M—, 9 I. & N. Dec. 118 (13 IA , 1960); Llanos-Senarrilos v. United
States, 177 F.2d 165 (C.A. 9, 1949). In Lianas, the court stated that "ON the
witness withdraws the false testimony of his own volition and without delay, the
false statement and its withdrawal may be found to constitute one inseparable
incident out of which an intention to deceive cannot rightly be drawn.

414

Interim Decision #2221
the immigration judge on the ground that the attorney had
represented the respondent for approximately one year, and that
this was sufficient time to discuss all matters pertaining to a
proper defense. Respondent's attorney withdrew from the case
and departed from the hearing room. 4
The respondent contended that his right to a full and fair
hearing was abridged because of the immigration judge's denial of
his request for an adjournment. He further argued that the
immigration judge's action in closing the hearing without permitting an opportunity to find a substitute lawyer after the attorney
of record had withdrawn denied him due process of law.
In U.S. ex rel. Bilokumsky v. Tdd, 263 U.S. 149, 154 (1923), the
United States Supreme Court stated:
To render a hearing unfair, the defect, or the practice complained of, must
have been such as might have led to a denial of justice, or there must have
been absent one of the elements deemed essential to due process.

Since the immigration judge has the discretion to grant or deny
a motion to adjourn or postpone, 8 CFR 242.13, the only issue is
whether or not his decision to deny the motion deprived the
respondent of a full and fair hearing. This can be ascertained only
by analyzing the particular factual circumstances involved in this
case.
The adjournment was requested after deportation had been
conceded and the respondent had testified on direct examination

and cross examination. No other evidence was to be introduced by
the Immigration Service, and it was a fair conclusion by the
immigration judge that no other evidence would be presented by
the respondent. The immigration judge, in explaining why he
would not grant the motion to adjourn, stated to respondent's
attorney: "You have brought this case all the way up to the point
where I am about to make my decision. I cannot recognize your
withdrawal from the case." Thereupon, the respondent's attorney
withdrew from the proceeding, asserting that he could not properly represent his client unless an adjournment was granted. At
that time, the immigration judge stated his decision and closed the
hearing.
After carefully analyzing the record, we conclude that the
immigration judge was entirely justified in refusing to grant the
adjournment. Counsel for the respondent did not indicate that he
had any testimony which he would present at the adjourned
hearing, nor did he present a valid basis for demanding an
adjournment. The respondent was afforded ample opportunity to
4

The withdrawal by respondent's attorney was

injudicious.

415

highly irregular and patently

Interim Decision #2221
present testimony. In Moutsos v. Shaughnessy, 149 F. Supp. 116
(S.D.N.Y. 195'7), the court stated that "no party has an inflexible
right to adjournment. His only right is not to be deprived of an
opportunity to present testimony." We find that the denial of the
adjournment was entirely within the discretion of the immigration
judge and that respondent was not deprived of a fair hearing.
The final assertion of the respondent is that the immigration
judge acted al.} trarily in closing the hearing without affording
the responder - time to secure a substitute counsel. A careful
study of the hearing shows to our satisfaction that it was not
arbitrary or unreasonable to close the hearing at that time. The
respondent had presented his case and had been represented
throughout by counsel. As the immigration judge stated, there
was nothing-left but the decision.
We conclude that the respondent has not demonstrated that he
has been deprived of a full and fair hearing. The immigration
judge reasonably exercised his discretion in denying the adjournment and closing the hearing. Based upon the foregoing the
following order will be entered.
ORDER: The appeal is dismissed.

416


Interim Decision #2167

MATTER OF TSOI
In Bond Proceedings

A-15162019
Decided by Board October 4, 1972
The Board of Immigration Appeals lacks jurisdiction under 8 CFR 242.2(b) to
entertain an appeal from the District Director's bond determination where an
alien is being held in Service custody for execution of a final order of
deportation and a stay of his deportation pending determination of a request
for asylum is likely to be of but brief duration. [Matter of Au, 13 I. & N. Dec.
133, and Matter ofKioun, 13 I. & N. Dec. 457, distinguished.)
ON BEHALF OF RESPONDENT: Jules E. Coven, Esquire
One East 42d Street
New York, New York 10017

Respondent, an alien in Service custody for deportation, appeals
from a decision of the District Director denying his application for
release pending determination of his asylum request. The appeal
will be dismissed.
From the meagre record before us, it appears that respondent is
a native and citizen of China who was admitted to the United
States on March 26, 1968 as a nonimmigrant crewman and
remained longer than permitted. In ensuing deportation proceedings, he was enlarged on posting a $1,000 delivery bond. He was
found deportable after a hearing before a special inquiry officer
and granted voluntary departure until September 30, 1968., On his

failure to depart, a warrant for his deportation was issued. He
failed to surrender for deportation as demanded on December 9,
1968 and the bond was breached. His whereabouts was unknown

to the Service until September 21, 1972, when he was taken into
custody under the outstanding warrant of deportation.
Respondent promptly applied for political asylum. The application was referred to the State Department and the District
Director stayed deportation pending determination of the asylum
request. Respondent also applied for release, on bond or otherwise,
pending that determination. The District Director concluded that

exaction of bond as a condition of release was precluded by the
205

Interim Decision #2167
terms of section 242(c) of the Immigration and Nationality Act,
because more than six months had elapsed since the deportation
order became final. Insofar as concerned respondent's possible
release on his own recognizance, the District Director felt that
respondent's record did not justify reliance on his making himself
again available for deportation once released. Concluding that
respondent's deportation is still imminent, the District Director
denied the release application.
Appeals to this Board from Service detention determinations
are authorized by 8 CFR 3.1(b)(7), "as provided in Part 242 of this
chapter." Under the terms of 8 CFR 242.2(b), after a deportation
order becomes administratively final, an alien may appeal direct to
the Board from a District Director's determination, "except that
no appeal shall be,allowed when the Service notifies the alien that
it is ready to execute the order of deportation and takes him into
custody for that purpose." In Matter of Guerra, 13 I. & N. Dec. 40
(BIA 1968), we regarded comparable language in a prior version of
the same regulation as depriving us of jurisdiction under such
circumstances.
In Matter of Au, 13 I. & N. Dec. 133 (BIA 1968) and Matter of
Moult, 13 I. & N. Dec. 457 (BIA. 1969, 1970), we concluded that the
exception carved out of the regulation did not apply where the
Service, by reason of a stay of deportation automatically granted
by statute during the pendency of review litigation, was not ready

to execute the final deportation order. In each of those cases, the
alien had filed a petition for review under section 106(a) of the Act,
challenging this Board's adjudication in the deportation proceedings on the merits. Under section 106(a)(3) of the Act, deportation
was automatically ,stayed pending court determination of the
petition. We concluded that because of the long delay attendant
upon judicial litigation of this sort, deportation could not be
considered imminent.
The case before us is clearly distinguishable, No proceedings are
pending for judicial review of the deportation order on the merits
and there is no statutory stay of deportation which is likely to
remain in effect for a protracted period of time. The District
Director's stay, geared to the asylum application, is likely to be of
but brief duration. The District Director's memorandum dated
September 25, 1972 informs us that past experience in cases of this
type indicates that a reply from the Department of State can be
expected within ten ,days. It thus appears that, if asylum is not
granted, it is likely that the District Director will shortly be in a
position to deport the respondent. Under these circumstances, we
conclude, as we did in Matter of duerra,supra, that the regulations
do not contemplate a right of appeal to this Board.
206

Interim Decision #2167
If, contrary to the District Director's expectation, there should
be a protracted delay before determination of respondent's asylum
application, the rationale of Matter of Au and Matter of Kwun,
supra, would apply. In that event, if the District Director should
still refuse to enlarge respondent, the latter would be in a better
position to invoke our appellate jurisdiction.
Our disposition of the case on this narrow ground makes it
unnecessary for us to consider the question, raised by the District
Director, whether expiration of the six-month period precludes
exaction of a delivery bond as a condition of release. Whether the
six-month period should be considered as tolled where, as here, the
alien has prevented deportation by absconding, is a question we
therefore need not now confront.
ORDER: The appeal is dismissed for lack of jurisdiction.

207


Interim Decision #2782

MATTER OF

MCKEE

In Visa Petition Proceedings
A-22354345
Decided by Board March 11, 1980
(1) A fraudulent or sham marriage that is entered into for the primary purpose of

circumventing the immigratian laws does not enable an alien spouse to obtain immigration benefits.
(2) Where the parties enter into a valid marriage, and there is nothing to show that they
have since obtained a legal separation or dissolution of that marriage, a visa petition

filed on behalf of the alien spouse should not be denied solely because the parties are
not residing together.
(3) Although the separation of spouses in and of itself is not a valid basis for denial of a
visa petition based upon a determination that the marriage is not viable, a separation
is a relevant factor in determining the parties' intent at the time of their marriage,
i.e., whether the marriage is a sham.
ON BEHALF OF PETITIONER: David M. Doering, Esquire

1256 Clarkson Street
Denver, Colorado 80218
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The petitioner has appealed from the decision of a District Director,
dated December 12, 1978, denying the visa petition filed on behalf of
the beneficiary as his spouse under section 201(b) of the Immigration
and Nationality Act, 8 U.S.C. 1151(b). The record will be remanded.
The petitioner, a 24-year-old United States citizen, married the
beneficiary, a 25 year old native and citizen of Australia, on August 12,
-

-

1977 in Pensacola, Florida. On October 12, 1977, the petitioner filed a
visa petition on the beneficiary's behalf, seeking to accord her immediate relative status. In his decision, the District Director found
that the parties had separated, and, on that basis, he denied the
petition. On appeal, the petitioner has raised several arguments in
support of his claim that the District Director erred in considering the
unsworn statement of the beneficiary that she and the petitioner had
separated, in not affording the petitioner an opportunity to rebut this
adverse evidence, and in considering the separation of the parties as a
332

Interim Decision #2782
valid basis upon which to deny the petition.
In connection with the petitioner's last argument, we requested the
position of the Immigration and Naturalization Service on April 24,
1979. In a memorandum dated June 22, 1979, the Service indicated
their agreement with the rationale of the recent decision of Chan v.
Bell, 464 F.Supp. 125 (D. D.C. 1978), thereby accepting the court's
ruling that, where the parties to a marriage were living apart, but
there was no contention that the marriage was a sham at its inception

in that it had been entered into for the purpose of evading the immigration laws, the Service could not deny the visa petition solely
because the parties were no longer living together.

In the past, this Board has held that a visa petition would only be
approved where the petitioner established that he and the beneficiary
had entered into a bona fide marriage which is presently viable and
ongoing. See Matter of Mintah, 15 I&N Dee. 540 (BIA 1975). We found
support for our position in the Congressional objective of preservation
of the family unit through the immigration laws. See generally Matter
of Lew,11 I&N Dec. 148 (D.D. 1965). A marriage that is entered into for

the primary purpose of circumventing the immigration laws, referred
to as a fraudulent or sham marriage, has not been recognized as
enabling an alien spouse to obtain immigration benefits. See Lutwak v.
United States, 344 T.T..S. 604 (1953); MeLat v. Longo, 412 F.Supp. 1021 (D.
V.I. 1976); Matter of M—, 8 I&N Dec. 118 (BIA 1958); see generally Johl
v. United States, 370 F.2d 174 (9 Cir. 1967). However, we have always
recognized that a fraudulent or sham marriage is intrinsically different from a nonviable or nonsubsisting one, see, e.g., Matter of Rahmati,
16 I&N Dec. 538 (BIA 1978), although we have denied visa petition
approval in both instances.

Chan v. Bell, supra, involved an appeal from the denial of a visa
petition filed by a United States citizen petitioner on behalf of her
husband. The parties in that case had known each other for several
years prior to their marriage on January 10, 1975. The couple lived
together for several months subsequent to their marriage during
which time they jointly purchased property. In July 1975, they separated, but continued an amicable relationship and their joint property
ownership. In May 1976, the petitioner informed the District Director
by letter that she and her husband had separated. Based upon this
separation, the District Director denied the visa petition on June 14,
1976. A subsequent appeal to the Board was denied on November 9,
1977.
In its decision, the Chan court characterized the Attorney General's
role in the adjudication of immediate relative visa petitions under
section 201(b) of the Act as "limited: he is required to approve any true
petition of a spouse of an American citizen in order that such spouse

333

Interim Decision #2782
may secure immediate relative status." Id. at 127. Compare Menezes v.
INS 601 F.2d 1028 (9 Cir. 1979). See also Dabaghian v. Civiletti, 607
F.2d 868 (9 Cir. 1979). The court noted that, at the time the visa petition
was filed, the parties were lawfully married and that no divorce or
legal separation had taken place, nor had any proceedings for divorce
or legal separation been instituted. The court then went on to state its
reasons for rejection of our decision affirming the District Director's
denial of the visa petition based upon our characterization of the

Chans' marriage as "nonviable."
The Chan court addressed the distinction between a sham and a
nonviable marriage, recognizing that the Service is not precluded

"from refusing to recognize fraudulent marriages." Id. at n. 8. However, the court found no support in the statute or regulations for our
refusal to approve a visa petition based on a finding that the parties to
a valid marriage did not have a subsisting relationship. We find the
reasoning of the court's decision in this regard persuasive.
In the present case, the DiStrict Director denied the visa petition
based upon his determination that[lit must be established that a viable marriage exists both at the time of filing of the
petition and at this time. On October 16, 191S, the beneficiary of the petition related to
an officer of this Service that you and she were no longer residing together as man and
wife.

He, therefore, based his denial of the petition on the sole basis that the
parties were not residing together. The record indicates that the
parties entered into a marriage valid under the laws of Florida, the
plage of celebration; there is no evidence that they have since obtained
a legal separation or dissolution of that marriage under the laws of any
state. Accordingly, we find that it was error for the District Director to
deny the instant visa petition based solely on the separation of the
parties. To the extent the Matter of Mintah, supra, indicates otherwise,
it is hereby modified.
However, it is important to recognize that, although a separation in
and of itself is no longer a valid basis for denial of a visa petition based
upon a determination that the marriage is not viable, it is a relevant
factor in determining the parties' intent at the time of their marriage,

i.e., whether the marriage is a sham. See Bark v. INS, 511 F.2d 1200 (9
Cir. 1975). In Bark, the court held that a marriage was a "sham" if "the
bride and groom did not intend to establish a life together at the time
they were married." 511 F.2d at 1201. The court there found that the
duration of a separation is relevant, but not dispositive, on the issue of
intent, stating that—
Conduct of the parties after marriage is relevant only to the extent that it bears upon
their subjective state of mind at the time they were married. Evidence that the parties
separated after their wedding is relevant in ascertaining whether they intended to

334

Interim Decision #2782
establish a life together when they exchanged marriage vows. But evidence of separation, standing alone, cannot support a finding that a marriage was not bona fide when
it was entered.. .. Of course, the time and extent of separation, combined with other
facts and circumstances, can and have adequately supported the conclusion that a
marriage was not bona fide.

511 F.2d at 1202 (citations omitted). See also Matter of Phillis,15 I&N
Dec. 385 (BIA. 1975).
In the present case, no determination has been made regarding the

parties' intent at the time of their marriage. Additionally, there is go
evidence concerning the present status of the petitioner's marriage,
i.e., whether the parties are legally separated or have dissolved their
marriage, nor has there been compliance with the regulation requiring
the Service to give the petitioner an opportunity to rebut any adverse
evidence before rendering a decision. See 8 C.F.R. 103.2(b)(2); Matter of
Holmes, 14 I&N Dec. 647 (BIA 1974). Accordingly, we will remand the
record for further consideration and the entry of a new decision. Sec
generally Matter of To, 14 I&N Dec. 679 (BIA 1974). The petition c
should be given an opportunity on remand to submit any additional
evidence he may have in support of the petition. •
ORDER, The record is remanded.


Cite as 27 I&N Dec. 469 (A.G. 2018)

Interim Decision #3938

Matter of M-G-G-, Respondent
Decided by Attorney General September 18, 2018
U.S. Department of Justice
Office of the Attorney General
The Attorney General referred the decision of the Board of Immigration Appeals to
himself for review of issues relating to the authority to hold bond hearings for certain aliens
screened for expedited removal proceedings, ordering that the case be stayed during the
pendency of his review.

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I direct the Board of
Immigration Appeals (“Board”) to refer this case to me for review of its
decision. The Board’s decision in this matter is automatically stayed pending
my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19,
2001). To assist me in my review, I invite the parties to these proceedings
and interested amici to submit briefs on points relevant to the disposition of
this case, including:
Whether Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), which held that
immigration judges may hold bond hearings for certain aliens screened from
expedited removal proceedings under section 235(b)(1) of the Immigration and
Nationality Act, 8 U.S.C. § 1225(b)(1), into removal proceedings under section 240,
8 U.S.C. § 1229a, should be overruled in light of Jennings v. Rodriguez, 138 S. Ct.
830 (2018).

The parties’ briefs shall not exceed 15,000 words and shall be filed on or
before October 9, 2018. Interested amici may submit briefs not exceeding
9,000 words on or before October 16, 2018. The parties may submit reply
briefs not exceeding 6,000 words on or before October 16, 2018. All filings
shall be accompanied by proof of service and shall be submitted
electronically to AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice
Office of the Attorney General, Room 5114
950 Pennsylvania Avenue, NW
Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or
before the pertinent deadlines. Requests for extensions are disfavored.
469


Interim Decision #2281

MATTER OF GAMERO
In Visa Petition Proceedings
A-19106174
Decided by Board April 30, 1974
Since under Article 121, Section IV, of the Constitution of Mexico, acts of a civil
nature done in accordance with the laws of one state shall be valid in the
other states, a final decree of divorce granted by a court in the State of
Chihuahua, Mexico, dissolving the beneficiary's prior marriage in Mexico,
would be recongized as valid in the State of Baja California, Mexico. Accordingly, beneficiary's subsequent marriage to the United States citizen petitioner in the State of Baja California, Mexico, is a valid marriage.
ON BEHALF OF PETITIONER:

Duncan Footman, Esquire
1'795 Third Street
Napa, California 94558

The United States citizen petitioner applied for immediate
relative status for the beneficiary as her spouse under section
201(b) of the Immigration and Nationality Act. In a decision dated
November 7, 1972, the District Director denied the petition on the
ground that a prior marriage of the beneficiary had never been
legally terminated. The petitioner has appealed from that decision.
The record will be remanded to the District Director.
The beneficiary is a native and citizen of Mexico. He married his
first wife, also a native and citizen of Mexico, in the State of
Jalisco, Mexico, in 1958. The beneficiary's first wife obtained a
divorce from him in the State of Chihuahua, Mexico, in January
19'72. It appears from the decree that both parties submitted
themselves to the jurisdiction of the court. However, it does not
appear that either the beneficiary or his first wife was present
before the divorcing court or domiciled in the State of Chihuahua
at the time of the divorce. The beneficiary married the petitioner
in the State of Baja California, Mexico, in September 1972.
Generally, the validity of a marriage is determined according to
the law of the pldce of celebration. Matter of P , 4 I. & N. Dec. 610
(BIA 1952; A.G. 1952); Matter of Levine, 13 L & N. Dec. 244 (BIA
1969). Thus the beneficiary's marriage to the petitioner is legally
—

674

Interim Decision #2281
valid in the State of Baja California if that state recognizes the
divorce obtained by the beneficiary's first wife in the sister state of
Chihuahua.
We have received a memorandum of Mexican law prepared by
the Hispanic Law Division of the Library of Congress. That
memorandum sets forth Article 121, section IV, of the Constitution
of Mexico of January 31, 1917, which states:
Complete faith and credence shall be given in each State of the Federation to
the public acts, registries, and judicial proceedings of all the others. The
Congress of the Union, through general laws, shall prescribe the manner of
proving such act; registries, and proceedings and their effect, by subjecting
them to the following principles:

(IV) Acts of a civil nature done in accordance with the laws of one state shall
be valid in the others.

A leading commentator on Mexican constitutional law has
written that:
Article 121 (of the Constitution] provides that each state of the Federation is
under the obligation to give complete faith and credence to the public acts,
registries, and judicial proceedings of the other states. While among sovereign nations this obligation does not exist unless they voluntarily accept it by
virtue of international conventions or by voluntary provisions of their own
laws, the states of the [Mexican] Federation have this obligation imposed on
them by virtue of the provisions of the Mexican Constitution. Every act
executed before the authority of one state is valid for the other states; their
obligation, therefore, confirms that under our Federal regime what the
constitution improperly calls sovereignty of the states does not exist.'

According to the memorandum, a final judgment of divorce
rendered by a court in Chihuahua would be accorded full recognition by the State of Baja California pursuant to Article 121 of the
Mexican Constitution. Under the laws of the State of Chihuahua, a
court decision becomes final by virtue of judicial declaration (1)
when the parties to the case or their respective proxies expressly
consent to it, or (2) when the parties to the case are notified of the
decision and they fail to appeal it within the legal term. COdigo de

Procedimientos Civiles para el E.L. y S. de Chihuahua,

Article 395,

sections I and II [Ed. Mica, Puebla, Mexico, 1963].
The Chihuahua divorce decree involved in the present case
appears to be final and entitled to recognition in Baja California.
Therefore, the beneficiary was free to enter into a marriage with
the petitioner under the law of Baja California. We note that the
beneficiary is a native and citizen of Mexico, his first wife was also
a native and citizen of Mexico, his first marriage took place in
Mexico, his first wife obtained a divorce from him in Mexico, and his
remarriage to the petitioner took place in Mexico. Since the benF. Tens Ramirez, 162 Dorsch° Constitucional Mexico= (9.ed., Porrda, 1968].

675

Interim Decision #2281
eficiary has had many significant contacts with Mexico, we see no
policy against recognizing his present marriage to the petitioner
which was validly contracted under Mexican law. Cf Matter of
Levine, 13 I. & N. Dec. 244 (BIA 1969); Matter of Kurtin, 12 I. & N.
Dee. 284 (BIA 1967); Matter of Freeman, 11 I. & N. Dec. 482 (BIA
1966); Matter of Kochne, 10 I. & N. Dee. 264 (BIA. 1963); Matter of
B , 5 I. & N. Dee. 659 (BIA 1954).
However, a marriage valid under the domestic law of the
jurisdiction where contracted is not invariably recognized as
sufficient to confer immigration benefits. Immigration benefits will
not be granted in cases where the couple has not established a
bona fide subsisting marital relationship. Matter of Kitsalis, 11 I. &
N. Dec. 613 (BIA 1966); Matter ofM--, 8 I. & N. Dec. 217 (BIA 1958).
The parties were married on September 26, 1972. However,
according to the visa petition the last date on which the parties
resided together was March 1971, more than a year before their
marriage took place. There is no indication in the petition that the
parties have resided with one another since their marriage; the
beneficiary is presently residing in Tijuana, Baja California, Mexico, and the petitioner is presently residing in Angwin, California.
On its face, the visa petiton raises a question as to the bona fides
of the marital relationship.
In visa petition proceedings, the burden is on the petitioner to
—

establish eligibility for the benefit sought under the immigration

laws. Matter of Brantigan, 11 I. & N. Dec. 493 (BIA 1966). In light
of the curious information given in the visa petition, we do not
believe that the petitioner has sustained her burden. Therefore,
we will remand the record to the District Director for further
investigation into the nature of the marital relationship.
ORDER: The record is remanded to the District Director for
further proceedings consistent with the above opinion.

676


Interim Decision #1293

MATTER OF ST. DEMETRIOS GREEK ORTHODOX CHURCH

In VISA PETITION Proceedings
A-12757532
Decided by Deputy Associate Commissioner March 21, 1963
Urgent need within the contemplation of section 203(a) (1), Immigration and
Nationality Act, does not exist when the beneficiary's services as a cantor,
to be performed only during Sunday and holy-day ceremonies, are needed
by petitioner church on less than a full-time basis and the beneficiary, in
order to sustain himself and his family will be required to engage in
additional unrelated work.

The petitioner is a church located in Perth Amboy, New Jersey, with
a parish consisting of 420 families The services of the beneficiary
are sought as a precentor during Sunday and holy day ceremonies.
The beneficiary is a 34-year-old native and citizen of Greece, who is
married and has three children. He has the equivalent of a high
school education. The sole document presented in support of his
qualifications is a priest's certificate stating that the beneficiary had
served as a precentor for St. Demetrios Church in Tripolis, Greece, for
six years. During this period, from 1954 to 1960, he was also employed
as a leather worker. In 1960, the beneficiary immigrated to Canada

where he was employed in restaurants, cleaning establishments and
leather shops. His passport reflects his occupation as a tanner.
The petitioner originally stated that one cantor is presently employed on a. part-time voluntary basis, receives a percentage of the
ceremony fees and tips, and is employed full-time in another field, of
endeavor. The petitioner stated that this individual was elderly, in
poor health, and that the services of the beneficiary were desired to
replace him; that it was impossible to find cantors in the United States;
that the beneficiary's wages would be determined by the Board of
Trustees and would probably be between $100 and $200 a month, and
-

that the beneficiary would have to seek other employment to supplement these earnings in order to support his family adequately.
On September 12, 1962, the District Director denied the petition on

317

Interim Decision tp1293
the ground that it had not been established that the beneficiary's
services were urgently needed in the United States. The petitioner
was informed on that date that the case had been certified to the
Regional Commissioner. On October 31, 1962, the Regional Commissioner entered an order approving the decision of the District
Director denying the petition. Thereafter, on January 22, 1963, the
petitioner was informed that the case was being certified for review

to the Deputy Associate Commissioner, Travel Control, Central Office.
The case is now before us pursuant to this certification.
On January 29, 1963, after having received the latter notice of certification, the petitioner submitted a statement dated January 12, 1963,
again expressing the urgent need for the beneficiary's services as a
cantor" and stating that the church now had two cantors, one of
whom was disabled, and the other 76 years-of-age. This statement
also alleges that the remuneration for the position is now $3,200 annually, plus free living quarters and tips.
"

-

In determining whether an urgent, need exists for the beneficiary's

services within the meaning of the statute, a reasonable interpretation
must be applied. In the usual case, the petitioner seeks the services
of the beneficiary on a. full -time basis, and the beneficiary derives his
livelihood from the services rendered for the petitioner. Such a petition normally would be approvable where it is shown that the beneficiary possesses the requisite skills, that the petitioner has an urgent
need of the beneficiary's skills because of the latter's qualifications,
and that the services rendered would benefit the national economy,
cultural interests or welfare of the United States prospectively.
Where a petitioner requires a beneficiary's services on less than a.
full-time basis and the beneficiary will have to work elsewhere to sustain himself, a finding ordinarily may not be made that his services
are "needed urgently" within the contemplation of section 203(a) (1)
of the Immigration and Nationality Act. An exception to this rule
may be made if it is established that the services which a. beneficiary
will perform for persons or organizations other than the petitioner
require the same skills and qualifications, and that the beneficiary
will be employed on what may be considered a full-time basis and will
receive sufficient compensation to sustain himself and family from
the work performed for the petitioner and the related work performed
for others.
In the instant case, it has not been established that the beneficiary
will devote his services full -time to the services to be performed for
the petitioner or in related pursuits, or that he will derive sufficient
income from such employment without the necessity of engaging in
unrelated work in order to sustain himself and his family. The petitioner has, in fact, indicated that the beneficiary will have to engage
318

Interim Decision #1293
in such unrelated work to supplement the income which he will receive
from the petitioner for the work the beneficiary will perform on Sundays and holy days only. The record clearly shows that there is only
a part time need for the services of the beneficiary in the field for
-

which his services are sought. It is concluded that an urgent need
for the beneficiary's services has not been established within the meaning of the statute, and that the visa petition was properly denied.
It is ordered that the decision of the Regional Commissioner be
sustained and the petition denied.

319


Interim Decision #2793

MATTER OF BELENZO

In Deportation Proceedings
A-20040248
Decided by Board May 6, 1980, December 2, 1980, and May 19, 1981
Decided by Attorney General April 28, 1981
(1) Under section 246(a) of the Immigration and Nationality Act, 8 U.S.C. 1256(a), the
Attorney General is directed to rescind the adjustment of status granted an alien if
within 5 years it appears to his satisfaction that the alien was not is fact eligible for
such adjustment.
(2) In Matter of 8—, 9 I&N Dec. (BIA 1961,1962; LG. 1962), the Attorney General ruled
that the 5-year limitation period for rescission of adjustment of status set forth in
section 246 of the Act did not preclude subsequent deportation proceedings against
adjusted aliens who, before the adjustment was made, committed acts justifying

deportation.
(3) For the same reasons set forth in Matter of S—, supra, the Attorney General now
holds that the 5-year rescission limitation does not bar subsequent deportation
proceedings even where the alleged grounds for the deportation are acts committed in
procuring the adjustment of status.
CHARGES:

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of entry
Sec. 212(a)(14) [8 U.S.C. 1182(a)(14)]—No labor certification
Sec. 212(a)(19) [8 U.S.C. 1182(a)(19)1---Visa or other documentation procured by fraud or misrepresentation of a material
fact
ON BEHALF OF SERVICE

ON BEHALF OF RESPONDENT:

David Crosland

Pro so

Acting Commissioner
Gerald S. Hurwitz
Appellate Trial Attorney

BEFORE THE BOARD
(May 6, 1980)
Br: Milhollan, Chairman; Maniatis, Maguire, and Farb, Board Members. Concurring
Opinion: Appleman, Board Member

374

Interim Decision #2793
This is an appeal by the Service from a decision of the immigration
judge ordering that these proceedings be terminated. The appeal will
be dismissed.
The respondent is a native and citizen of the Philippines who initially entered the United States as a visitor in August 1971. He last
entered the United States in May 1976 as a returning resident alien. He
obtained permanent resident status in March 1972, by virtue of his
marriage to a United States citizen 2 months after his arrival here. He
was therefore exempt from the requirement of an alien labor certification. The respondent, however, concealed from the Service a prior
marriage to a native and citizen of the Philippines in 1964, which was
never terminated. The respondent stated at the hearing that he still
supported his first wife and their four children and wanted to bring
them to this country from the Philippines. He further stated that he
and his second spouse never lived together as husband and wife and
that their marriage was entered into so that he could adjust his
immigration status. The marriage ended in divorce in 1973.
Section 246(a) of the Immigration and Nationality Act, as amended,
provides in pertinent part
If,

at any time within five years after the status of a person has been otherwise

adjusted under the provisions of Sections 2d5 or 219 of this Act or any other provision

of law to that of an alien lawfully admitted for permanent residence, it shall appear to
the satisfaction of the Attorney General that the person was not in feet eligible for
such adjustment of status, the Attorney General shall rescind the action taken
granting an adjustment of status to such person and cancelling deportation in the case
of such person if that occurred and the person shall thereupon be subject to all
provisions of this Aet to the same extent as if the adjustment of status had not been
made.
The immigration judge found that inure than 5 years had elapsed

since the respondent's status was adjusted under section 245 of the
Act, 8 U.S.C. 1255, and that the time in which rescission proceedings
could have been brought under section 246 of the Act had expired. In

ordering these proceedings terminated, the immigration judge noted
that the respondent was last admitted to the United States upon
presentation of his alien registration receipt card (Form 1-151) and
that rescission proceedings under section 246 of the Act have never
been instituted against him. The immigration judge further noted that
deportation proceedings were not instituted within the 5 year period
during which rescission proceedings could have been brought and
found that the Service apparently comm.enced the instant proceedings
on the theory that such action is permissible under the Attorney
General's decision in Matter of S , 9 LAN Dec. 548 (BIA 1961; A.f4_
1962; BIA 1962).' The immigration judge concluded that none of the
—

' Matter of S

—

involved exclusion proceedings- The alien fraudulently obtained an

375

Interim Decision #2793
deportation charges in the instant case would have been "appropriate
prior to the grant of 245 relief' even if the permanent resident status
of the respondent could have been voided. A fortiori, he found that if
the grant of the respondent's permanent resident status cannot now be
rescinded, such charges would not lie.
On appeal, and at oral argument, the Service contended that the
mere fact that an alien has had his status adjusted within the United
States to that of a lawful permanent resident pursuant to section 245
of the Act does not preclude the subsequent deportation of the alien
although his status as a lawful permanent resident was not rescinded
nor an action begun within the statutory 5 year period pursuant to
section 246 of the Act- In support of its position, the Service cites
Matter of S—, supra.
Upon review of the record, we adopt the rationale of the immigration
judge. We conclude that since the Service cannot now rescind the
respondent's adjustment of status solely on eligibility grounds because
of the specified time limitation'in section 246 of the Act, the qualitative
charges stated in the Order to Show Cause, which did. not exist independently of the procurement of adjustment, cannot be supported in

deportation proceedings. Accordingly, the appeal by the Service will be
dismissed.

ORDER, The appeal
CONCURRING OPINION:

is

dismissed.

Irving A. Appleman, Board Member

This respondent obtained an adjustment of status in March 1972, by
claiming a fraudulent marriage to a United States citizen at a time
when he was already married to someone else. He last entered in 1976
as a returning resident. No rescission proceedings were ever brought
under section 246 of the Act to take away the lawful permanent
residence acquired in 1972. Instead, on October 31, 19/7, an Order to
Show Cause was issued, charging him with deportability (1) under

section 241(a)(1) of the Immigration and Nationality Act, in that at
time of entry in 1976 he did not have the required labor certification
(section 212(a)(14)) and (2) under section 241(a)(1) in that at time of
entry in 1976 he had obtained documentation by fraud (section
adjustment of status in April 1955, concealing the fact that he had obtained a visa by
fraud in 1949. No rescission occurred within 5 years. Instead, the facts came to light
when he attempted to reenter the United States in August 1960, as a lawful permanent
resident returning after a visit abroad. The Board held that the passing of the 5 years
operated as a statute of limitation barring exclusion on any ground which existed prior
Ix, the adjustment. Pointing to the legislative history, in remanding the case to the

Board, the Attorney General noted that adjustment under section! 245 was never intended to confer greater rights than those enjoyed by a permanent resident who gained
his status through entry with an immigrant visa.

3'76

Interim Decision #2793
212(a)(19)). The immigration judge terminated since the respondent's
lawful permanent residence had never been revoked. The Service
appealed.
The Service appeal is predicated on language in Matter of S—, 9 I&N
Dec. 548 (BIA 1961; A.G. 1962; BIA 1962), which, it is argued, permits a
deportation action notwithstanding the fact that the 5 year rescission
period authorized in section 246 has run. As the immigration judge
correctly noted in his excellent decision below, we had addressed this
issue in Matter of Saunders,16 I&N Dec. 326 (BIA 1977). In that case I
took issue, in a separate opinion, with what I regarded as the aberrated
reasoning that rescission must take place if the 5 years have not yet
run, but is not required if the 5 years have run.
The present ruling comes much closer to the position I urged in
Saunders, and I have no difficulty in concurring_ In this case the
claimed deportable grounds stem entirely from the "fraud" perpetrated at the time of the adjustment. There are no deportable grounds
preceding the adjustment, that have independent existence outside of
that "fraudulent" adjustment. So long as the adjustment exists, and is
a fact, the alien cannot be deported. In this respect the case differs
factually from Matter of S—, supra, but is the same as Matter. of V—, 7
MN Der_ 262 (131A 1956).
Since the adjustment can no longer be rescinded, and there is no
deportable ground preceding the adjustment and independent of it, the
proceeding must be terminated.
This is the thrust of the decision, and, while the majority does not
labor the point, the majority position in Saunders now appears to be
overruled.

BEFORE THE BOARD
(December 2, 1980)
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

The Service has moved for reconsideration of our decision of May 6,
1980, in which we affirmed a decision of the immigration judge
terminating the proceedings, and dismissed the Service appeal' Execution of our order has been deferred pending disposition of the
instant motion. The motion to reconsider will be denied.
The respondent procured an adjustment of status by concealing a
prior undissolved marriage and entering into an immigration marriage of convenience. While thus illegally adjusted, he entered the
' Matter of Belenzo, Interim Decision 2793 (BIA May 6, 1980).

377

Interim Decision #2793
United States as a returning resident. He is charged with deportability
for lack of a labor certification at time of entry, and obtaining entry by
fraud.
In our prior order, we concluded that since the Service cannot now
rescind the respondent's adjustment of status because of the 5 year
time limitation in section 246 of the Immigration and Nationality Act,
the qualitative charges stated in the Order to Show Cause cannot be
sustained in deportation proceedings since they have no existence
independently of the claimed illegal procurment of adjustment.
The Service contends that "both case law and legislative history
support the view that an adjustment can be successfully attacked in
deportation proceedings" and that section 246 was not meant to be a

statute of limitations; that "an adjustee was never intended to gain
additional benefits by virtue of his adjustment." The Service has cited
Matter of S—, 9 I&N Dec. 548 (BIA 1961; A.G. 1962; BIA 1962), as well
as Ubiera v. Bell, 463 F.Supp. 181 (S.D.N.Y. 1978), affd, without opinion
Ubiera v. Bell, 594 F.2d 853 (2 Cir. 1978), as support.
The motion further argues that rescission was originally intended as

a summary procedure to take away permanent residence "without all
the complex, due process requirements of the deportation proceedings;" that the 5 years can be read as a "simple time limit" in which
this "summary" procedure could be used, but that after 5 years,
because of greater equities, the alien's status could only be taken away
by a deportation proceeding.
We find this reading of the statute unacceptable. The statute says
that after rescission, the alien may or may not be deported — i.e., he
shall be treated as any other alien' Deportation does not necessarily
follow after rescission, e.g. the case may receive nonpriority treatment, the alien may again adjust, etc. If deportation is to occur,
another proceeding must be initiated after rescission i.e., there
—

—

must be two proceedings instead of the one which the Service argues
can take place any time after 5 years. Rather than being "summary"
the procedure is more cumbersome. As an argument for the Service's
position it must be rejected.

In addition, we note that whatever the 5 year time limit on rescission

means for section 245 adjustment, it means the same thing for section
244 (suspension of deportation) and for section 249 (registry). If rescission of adjustment of status under section 245 can be bypassed after
the 5 years, then so too can rescission of adjustment under section 249
or section 244. Yet section 246 requires a concurrent resolution of the
Congress for withdrawal of a grant of suspension of deportation.
Literally, "the person shall thereupon be subject to all provisions of this Act to the
same extent as if the adjustment of status had not been made" (section 246 of the Act).

378

Interim Decision #2793
Obviously, this is a mandate not lightly to be ignored, nor is it consistent with the "summary" vs. "expeditious" argument of the Service.
Such judicial expressions as exist also afford no comfort to the
Service position. The courts have been uniformly solicitous to preserve
lawful permanent residence, once acquired, from procedurally improper encroachment; see generally Chew v. Colding, 344 U.S. 590
(1953); Waziri v. INS, 392 F.2d 55 (9 Cir. 1968); Fulgencio v. INS, 513
F.2d 596 (9 Gin 1978). Those courts which have dealt specifically with
the 5 year limitation, have tended to view it as an absolute statute of
-

limitations, to be ignored only upon a tolling of its running. See
Quintana v. Holland, 255 F.2d 161 (3 Cir. 1958); Singh v. INS, 456 F.2d
1092 (9 Cir. 1972); cert. denied, 409 U.S. 847 (1972); Zaoutis v. Kiley, 558
F.2d 1096 (2 Cir. 1977). Nowhere in these cases is there an intimation
the Service would have the choice of proceeding alternatively in
deportation.
In Fulgencio v. INS, supra, the government attempted to urge a

somewhat analogous position to that presented here. Fulgencio had
of
any derogatory information" upon later record checks. The Service
subsequently sought to reopen the deportation proceedings when derogatory information developed_ Pointing to fundamental unfairness
in reopening the deportation case, the court pointed out that rescission
was preferable because of its procedural safeguards. The conditional
grant in deportation proceedings, according to the court, "undermined
the security which ought to attend permanent resident status," whereas "a rescission proceeding is governed by a 5 year statute of limitations." Id. at 598. Citing Quintanav. Holland, supra, with approval, the
been granted adjustment of status "conditioned upon the absence

court held the conditional grant improper.
It is true that in Matter of 2—, supra, the Attorney General ruled
that an adjusted alien was not intended to be favored over other
permanent resident aliens with respect to deportability. In that ease

the ground of deportation, a fraud at time of original entry, existed
dehors the adjustment and independently of it. Rescission was not
necessary to reach the deportable ground. Both Matter of 3— and
Ubiera v. Bell, supra, are consistent with our holding in this case.
This "deportation" proceeding is in effect a rescission proceeding
under a different name. The alleged fraud and labor certification
violation occurred at the time of adjustment. When perceived as to
what it really is, the necessity for compliance with the 5 year limit
becomes apparent. The accident of reentry after adjustment, which the
motion for reconsideration notes as establishing the deportation
charge, does not affect the rule of law involved. It is doubtful that the
Service is advocating that the respondent is deportable only because he
effected a reentry, and that if he had not done so, he would not be
379

Interim Decision #2793
deportable. Rather, the motion is addressed to all aliens in the respondent's category, and would presumably hold true whether the
alien had departed or not, cf. Francis v. INS, 532 F.2d 268 (2 Cir. 1976).
In any case, we take the same position whether or not reentry is
involved. The grounds of deportability arising from the reentry all
relate to the claimed illegal procurement of adjustment. This is to
mask a rescission proceeding under the guise of a deportation proceeding, and if it is a rescission proceeding it must be initiated within the 5
years.
The motion erroneously states (Tr. p. 5) that the Board has set up an
absolute bar to deportation. The bar exists only where deportation is
based on an attack on the adjustment itself, as here. If the adjustment
is thus attacked, it must be attacked directly, and within the 5 years. If
deportation is predicated on something outside the adjustment, there
is no bar.
The respondent is presently a lawful permanent resident of the
United States and until his lawful permanent residence is revoked or
rescinded, he is not deportable. In this respect he differs from the alien

in Matter of S—, supra, who was deportable, whether or not rescission
took place, because of a fraud which was not related to the adjustment.
See also Matter of V , 7 I&N Dee. 363 (BIA 1956). We know of no
deportation charge in this case which can exist independently of the
alleged impropriety in achieving adjustment, nor does the Service
allege any. Since the adjustment can no longer be revoked, the motion
must be denied.
ORDER: The motion for reconsideration is denied.
—

BEFORE THE ATTORNEY GENERAL

April 28, 1981
Under 8 U.S.C. § 1255, the Attorney General may adjust the status of
an alien admitted or paroled into the United States to that of a
permanent resident if the alien is eligible to receive a permanent visa
and is admissible to the United States for permanent residence.
Within 5 years, the Attorney General is authorized to rescind the
action granting permanent resident status if the person was not in fact
eligible for adjustment to that status. 8 U.S.C. § 1256. In Matter of S—,
9 I&N Dec. 548 (1962), the Attorney General ruled that the 5-year
limitation period for rescission did not apply to deportation proceedings initiated against adjusted aliens who, before the adjustment was
made, committed acts justifying deportation.
In this case, the Board of Immigration Appeals (BIA) ruled that the
5 year limitation nonetheless bars the initiation of deportation
-

380

Interim Decision #2793
proceedings against an adjusted alien when the alleged grounds for the
deportation are acts committed in procuring the adjustment. The BIA
certified this case to me for review under 8 C.F.R. 3.1(h)(1)(iii). After
review of the record, I disapprove the BIA's decision.

I.
Respondent, a native and citizen of the Philippines, initially entered

the United States as a visitor in. August 1971. On March 22, 1972, his
status was adjusted to that of a permanent resident by virtue of his
marriage on October 29, 1971, to> a United States citizen. In obtaining
the adjustment, respondent concealed from the Immigration and
Naturalization Service (INS) his marriage on July 16, 1964, to a native
and citizen of the Philippines. Testimony during the proceedings below
revealed that respondent's prior marriage was never terminated'
Respondent and his second spouse never lived together as husband and
wife and their marriage was entered into solely in order for him to
obtain permanent status. Respondent's second marriage ended in
divorce in 1973.
Respondent last reentered the United States as a returning resident
on May 9, 1976, and was admitted upon presenting his alien registration receipt card. On October 31, 1977, the INS issued an Order to Show
Cause in deportation against respondent, charging him with deportability on the grounds that, at the time of his entry in 1976,
respondent did not have an alien labor certification and had obtained
his visa or other documentation by fraud. Rescission proceedings have
never been instituted against him.
The immigration judge terminated the proceedings on the ground
that the exclusive route for challenging the respondent's conduct in
obtaining permanent resident status was a rescission proceeding
under 8 § 1256. Since the 5-year limitation period in that provision had elapsed, the judge ruled that the deportation proceedings
must be terminated. The BIA dismissed the INS's appeal, adopting the
reasoning of the immigration judge. On the INS's motion for reconsideration, the BIA explained that Matter of S—, supra, involved a fraud
committed at the time of original entry, not in obtaining permanent
resident status. That fraud was entirely independent of the adjustment. As the BIA interpreted the relevant statutes, the 5-year limitations period was a bar on an attack on an alien's conduct in procuring
the adjustment, even if the proceedings were brought for deportation
rather than rescission. According to the BIA, nothing in Matter of S—
foreclosed this conclusion. The 131A concluded that the current

' Respondent continues to support his first wife and their four children and wants to
bring them from the Philippines to the United States.

381

Interim Decision #2793
proceeding was in effect a rescission proceeding "under a different

name" and was thus barred by the 5-year limitations period.
II.
Analysis of the issue presented in this case must begin with the
Attorney General's opinion in Matter of S—. In that case the INS
sought in 1960 to exclude applicant on the ground that he procured his
initial entry into .the United States, in 1949, by fraud or wilful misrepresentation of a material fact. In April 1955 the applicant's status
had been adjusted to that of a permanent resident. The immigration
judge and BIA concluded that exclusion or deportation proceedings
based on grounds that would also have supported rescission were
indirect attacks on the adjustment of status, and that Congress, in
barring rescission of adjustment status after 5 years, also intended to
bar indirect attacks on that adjustment.
The Attorney General disagreed. He noted that the exclusion and
deportation provisions of the Immigration and Nationality Act, unlike
the rescission provisions, contain no statutes of limitations. Congress
did not, in his view, intend to give special immunity from deportation
to those who acquired permanent resident status. The Attorney
General found no "basis for believing that the 5 year limitation ... on
-

the Attorney General's rescission authority has the effect of broadening the benefits conferred by [an] ... adjustment so as to place nonimmigrants who -thereby acquire the status of aliens lawfully admitted
for permanent residence in a better position than those who have
initially entered as permanent residents." Id. at 552. Accord Ubiera v.
Bell, 463 F.Supp. 181, 1862 (S.D.N.Y. 1978), oed without opinion, Ubiera
v. Bell, 594 F.2d 853 (2d Cir. 1978). On the contrary, he concluded that
"the effect of the 5-year limitation on rescission is simply to bar the
Attorney General from returning an alien with adjusted status to the
category of nonixnmigrant." Id. at 554. So "narrow" a provision was not

"intended to be read as qualifying the express authority provided by
the Act to deport or exclude aliens without time limitation." Id. at 555.
In a passage of particular relevance to the present matter, the
Attorney General recognized that, under his construction, "the time
limitation in section 246 ... may be of little practical value to the
alien." But as he understood it, the purpose of the limitation was
merely to "cut off the availability of a procedure which, although to all
intents and purposes would establish deportability, permitted the At'In Vbiora, the court state& "The Service _ _ considers that all alions,

I-word/Rag

of

how they obtained status or the length of residence here, are subject to deportation at any
time, Matter of S—, supra, and the Attorney General's interpretation of Section 246(a) in

that proceeding is consistent with the legislative history...." (Emphasis added).
382

Interim Decision #2793
torney General to act more informally and expeditiously than he could
in a deportation proceeding."' In the Attorney General's view, the
rescission procedures might provide a more informal and expeditious
means of correcting mistakes made in granting permanent residence
status through adjustment. The Attorney General concluded:
Congress must have been aware that rescission by returning the alien to nonimmigrant status, in fact, established his deportability on the ground that he had
overstayed the period of his admission. The 5-year limitation would thus seem to be a
recognition that it would be unfair to permit indefinitely such serious consequences to
be effected through a somewhat informal procedure. After 5 years, the Attorney
General is, therefore, required to correct mistakes in granting permanent resident
status to those initially admitted as noitimmigrants in the same manner as in the case
of other aliens, i.e., through deportation.

Id. at 555-56 n.8. Under this view of the purpose underlying the 5-year
limitations period for rescission, the Attorney General concluded that
the limitations period was inapplicable to deportation proceedings,
which were governed by different statutory provisions and which, by
statute, furnished generous procedural safeguards.'
In my view, Matter of 8— was correctly decided, and the Attorney
General's reasoning in that case leads to rejection of the BIA's position
here. Under the plain terms of the Act, there is no statute of limitations for deportation and the 5 year period of § 1256 is, by its own
terms, applicable only to rescission. The BIA's approach would have
the anomolous consequence of favoring those who gained permanent
resident status through adjustment over those who initially entered as
permanent residents. For these reasons, I believe that the deportation
proceeding at issue here is not barred.
I acknowledge that this conclusion, based on the text of the Act,
might be avoided if it were plainly inconsistent with the intent underlying the 5-year limitations period. The BIA purported to find such an
inconsistency, contending that the period would have no function if it
did not insulate the alien from all claims arising from improprieties in
the alien's conduct in obtaining permanent resident status. This position, however, was squarely rejected in Matter of S—. As the Attorney
General there explained, the limitations period is designed to assure
that, if no action to obtain rescission is taken within 5 years, the
Attorney General may not use the procedural mechanism for rescis-

' 9 I&N Dec. at 555 n. 8 (emphasis in original). Under INS regulations, the procedures
for rescission are generally formal. See 8 C.F.R. 246.12(a) and (b). The deportation
procedures are, however, imposed by statute, see 8r U.S.C. 1252(b), while the rescission
procedures lie within the Attorney General's discretion.
The BIA ignored this reasoning here in emphasizing that an alien whose adjustment
had been rescinded was nonetheJese entitled to deportation procedures before being
deported. Rescission automatically establishes grounds for deportation, as the Attorney
General explained.

383

Interim Decision #2793
sion, but must instead seek deportation, a route that offers special
statutory safeguards to the alien. The underlying purpose of the limitation period for rescission does not, therefore, justify its application
to deportation proceedings.
The BIA suggested in this case that Matter of S— might be distinguished because the grounds for deportation in that case were entirely
separate from the procurement of permanent resident status. Here, by
contrast, alleged misconduct in the adjustment is the asserted grounds

for deportation. I see no basis, however, for the conclusion that the 5year limitations period for rescission becomes applicable to deportation proceedings simply because those proceedings are based on conduct in obtaining the adjustment. There is no ground for such a
conclusion in the language, history, or structure of the Act, and the
proposition advanced by the BIA is certainly not self-evident. I believe
that the BIA's distinction is unpersuasive.
The BIA also takes the position that the limitations period is applicable because, in substance, the current proceeding is one for rescission. I disagree. The INS seeks deportation, not rescission. The respondent is entitled to the safeguards accompanying deportation, not
those applicable to rescission. To be sure, the allegations on which
deportation was sought could also have formed the basis for an action
for rescission if the 5-year limitations provision were satisfied. That
fact does not, however, alter the fundamental nature of the proceeding.
Since this proceeding is one for deportation, the limitations period
applicable to rescission is not applicable here.
I conclude that under the terms of the Act, the 5-year limitations
period in § 1256 is not applicable to a deportation proceeding, and that
nothing in the underlying purposes of the relevant statutes requires a
contrary result. Accordingly, I disapprove the BIA's decision, and the
case is remanded for further proceedings consistent with this opinion.
BEFORE THE BOARD

May 19, 1981
Bv: Milhollan, Chairman; Maniatia, and Maguire, Board Members
Following the Board's denial on. December 2, 1980, of a Service
motion for reconsideration of our decision of May 6, 1980, 1 in which we
affirmed a decision of the immigration judge terminating the proceed, ings, the Service requested the Attorney General to review and reverse
our initial decision. The Attorney General, by order dated April 28,
1981, noted that this proceeding is one for deportation and that the
5-year limitations period applicable to rescission proceedings is not
' Interim Decision 2793 (BIA 1980).

384

Interim Decision #2793
applicable in this instance. The Attorney General expressed his disapproval of the Board's decision and ordered this case remanded for
further proceedings consistent with his opinion. Accordingly, this case
will be remanded to the immigration judge for further proceedings
consistent with the Attorney General's decision.
ORDER, The case is remanded to the immigration judge for
further proceedings consistent with the Attorney General's decision.

385