Interim Decision #1596.

MATTER

or Dan

In Deportation Proceedings
41.-11196360
Decided by Board Hay 27; .1966 ,
Motion to reopen deportation proceedings to permit the filing of an application
for suspension of deportation is denied since, in the absence of - particularly
strong equities, the favorable exercise of discretion to grant suspension of
deportation is not merited by respondent who; following admission as a nonimmigrant student, has acquired a bare minimum eligibility for such relief
by taking advantage of every administrative, and other, remedy available to.
him.
CHARGE

• •
•
Order: Act of 1952—Section 241(0(2) [8
1251)—Ronimmigrant
(student)—Remained longer.

On November 12, 1964, the special inquiry officer granted therespondent's request for voluntary departure, but prOvided for his
deportation to Japan, alternatively to the Republic of Korea, on the
charge containedln the order to show cause, in the event of his failure to so depart? That decision became final for want of an appeal.
Subsequently, however, the respondent moved to reopen his case
co he e.nuld file and prosecute an application for suspension of deportation. On March 22, 1966, the special inquiry officer ,denied that
motion. The appeal from that denial, which brings the case before
this Board for_ consideration, will be dismissed.
The record relates to 'a 33-year-old male alien, a native of Japan .
and citizen of Korea, Who'last entered the United States on or about .
Septmbr10,958.lIwasthendmi ograntsudent, and he vas authorized to remain here in that status until October 7; 1963. On March 17, 1964, he was directed to depart on or
before June 4, 1964, and the time for his departure was later Wen'The respondent designated Zapata, the country of his natielti, as the counto which be wished to go In the event of deportation; and he testified (ii.
3) that he would not be persecuted if deported to Koreti; •the - country of his
nationality. 41,
try

649

Interim Decision #1:596
ded to October 4, 194 He has remained here sines that date without authority. His deportability, therefore, is established_ It is
also uncontested.
The request to reopen these proceedings is based on the assertion
that respondent has been .a resident of the United. States for more
than seven years; that he now appears eligible to exercise-the privilege of applying for suspension of deportation; and that it would. be
in the best interests of all concerned, including respondent's employer, if such application be considered on its merits. Essentially,
however, claimed hardship to respondent's 'minor citizen child of
tender years is the reason for this appeal.
- An application for suspension of deportation under section 244(a)
(1) of the Immigration and Nationality Act, as amended, presents
the dual aspects of eligibility and the exercise of discretionary

authority., To be eligible for relief under that section of the.law, the
respondent must establish that:.
(1) he has been physically present in the United States for a continuous
period of not less than seven years immediately preceding the date of
such application;
(2) flaring an such period he hoe been a person of good moral character;
and
(3) he is u person whose deportation would rennin extreme hardship to
'himself or to his spouse, parent or child, who is a citizen of the United
States or an alien lawfully admitted for perManent residence.

The respondent, however, is not entitled, as of right, to an order
reopening his deportation proceedings.
Herein, we have an alien who was admitted to and permitted to
remain in the United States as a student for five years. When his
.status' as a student terminated, instead of departing as directed he
.married another alien student. Hardship to the child of that union
is the fundamental basis for the, present appeal. - Prior tb leis depprtation hearing, following his failure to depart, respondent had private legislation introduced into the Congress in his behalf. The
special inquiry officer has already granted him voluntary departure,
the maximum relief fOr which he was then eligible.
Briefly, by way of summary, the respondent has acquired bare
minimum eligibility for suspension of deportation by taking advantage of every administrative, and other, remedy available to him.
The special inquiry officer's opinion contains a succinct resume of a,
Congressional report indicating legislative disapproval of rewarding
with permanent resident status aliens with histories similar to the
respondent's.' We may properly take into• account the CongresSee Appendix

650

Interim Decision #1596
sional policy underlying the statute involved . 3 This is not to say
that we could not and would not, nevertheless, authorize suspension
of deportation in a case presenting particularly. strong equities, but
we find none such here.
Accordingly, and in view of the foregoing, we are convinced that

favorable exercise of discretion to grant suspension of deportation
in this case is not indicated. Under such circumstances, a motion to
reopen deportation proceedings to permit an application for such
relief may rightly be denied' The special inquiry officer's decision,
therefore, is approved.
ORDER: It is ordered that the appeal be dismissed.
APPENDIX
House of Representatives, 80th Cong., let Seas.,

Report #1167, Oct. 14, 1965
(To accompany H. Res. 606)
"* * * However; it is to be noted that many aliens had been gaining admission into the United States illegally or ostensibly as nonimmigrants with the intention of establishing 'themselves in a
situation from which they may subsequently have access to the
administrative remedy under the provisions of section 244(a) (1)
and thus adjust their status to that of a permanent resident.
The committee (on the judiciary) has noted * * that a variety
of delaying tactics have been utilized by certain aliens to meet the
minimum requirements for suspension of deportation. The committee has expressed its disapproval of those cases where the alien has
been forthe greater part of the 7-year period in a legal'status or in
a protected status. Such cases include but are not limited to visitors,
students, diplomatic employees, beneficiaries of private bills, and
aliens admitted to the United States to prosecute frivolous claims
to citizenship.'
The power of suspending deportation is a dispensing power, and
it is not the intention of the committee to approve those cases which
would tend to establish a pattern of immigration."
See Hintopoulos v. Shauglinesav, 353 U.S. 72.
' Matter of
3 I. & N. Dec. 490: and Matter of 2—. 7 I. & N. Dec. 34R.

4

651


Interim Decision #2474

MATTER OF SEREN

In Deportation Proceedings
A-18125976

Decided by Board February 25, 1976
(1) Prior to the commencement of deportation proceedings, the district director may
determine where the hearing should be held. Once jurisdiction has lodged with the
immigration judge, the district director lacks the power to change, or deny a request to
change, the place of hearing. Thus, the district director's letter of January 22, 1976,
denying respondent's request for a change of venue subsequent to the commencement of
the deportat on hearing, was of no effect.
(2) Since the authority of the Immigration judge under 8 CFR 242.8(a) to take such action as
"may be app:mPriate to the disposition of the case" encompasses the power to rule on a
motion to change venue, respondent's motion for a change of venue, made subsequent to
the commencement of hearing in the instant deportation proceedings, should have been
heard by the immigration judge and the venue question decided on its merits.
CrrAnOn:
Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251 (a)(4)]—Convicted of a crime
involving moral turpitude—sentenced to confinement for a
year or more.
ON BEHALF OF RESPONDENT:
Shyleur Barrack, Esquire
The Legal Aid Society
Prisoners Ci Al Legal Assistance Unit
11 Park Place
New York, New York 10007

ON BEHALF OF SERVICE:

George Indelicato
Appellate Trial Attorney

On January 27, 1976 the respondent submitted a Notice of Appeal,
Form I-290A. Although it is not entirely clear, it appears that the
respondent .3y his appeal seeks to review both a decision of the district
director denying a request for a change of venue and an interlocutory
decision of the immigration judge ruling that he did not have jurisdiction
to consider a motion to change venue at a deportation hearing. Both
decisions were incorrect with respect to the matter of jurisdiction.
This Board does not ordinarily entertain appeals from interlocutory
decisions of immigration judges. Matter of Sacco, 15 I. & N. Dec. 109
(BIA 1074). However, there is a significant issue involved in this ease

concerning the jurisdictional powers of the immigration judge and the
590

Interim Decision #2474
District Director. Therefore, we shall certify this record to us pursuant
to 8 CFR 3.1(c).
On July 23, 1975, the respondent was served with an order to show
cause while he was incarcerated at a New York State correctional
facility in Dannemora, New York. Upon release by the state authorities
on January 2, 1976, the respondent was taken into custody by the
Immigration and Naturalization Service and removed to Buffalo, New
York. On January 5, 1976, the hearing was commenced before the
immigration judge. The hearing was then adjourned to give the respondent an opportunity to obtain counsel.
On January 20, 1976; the district director received the respondent's
motion for a change of venue. Although it is not clear when the motion
was made, it appears to have been made subsequent to the commencement of the hearing before the immigration judge on January 5, 1976. In
a letter dated January 22, 1976, the district director purported to deny
the request. Counsel for respondent claims the district director's letter
was received January 26, 1976.
On January 23, 1976, the hearing before the immigration judge was
reconvened. The respondent was represented by an attorney from the
Legal Aid Society of Buffalo. Counsel for the respondent renewed the
motion for a change of venue to New York City. A lengthy discussion
between counsel and the immigration judge ensued. The immigration
judge ruled that he did not have jurisdiction to order a change of venue
and refused to consider any evidence relating to the motion submitted
by the respondent. It appears that prior to his incarceration, the respondent resided in New York City. His counsel of record is also located
there.
The immigration judge granted an adjournment of the hearing until
January 29, 1976. Although it is not entirely clear from the record, it
appears that the immigration judge granted the adjournment for the
purpose of allowing the respondent to consider how he wished to proceed to obtain a review of the immigiation judge's decision with respect
to the issue of venue. The respondent submitted his appeal and the
record was forwarded to this Board.
The place of the hearing will initially be set in the order to show cause.
Thus, prior to the commencement of the proceeding, the district director may determine where the hearing should be held. 8 CFR 242.8(a)
grants the immigration judge the power to take such action as "may be
appropriate to the disposition of the case." Encompassed within that
grant of authority is the power to rule on a motion to change venue.
Matter of K. 5 I. & N. Dec. 347 (BIA 1953). Matters involving procedural due process in a hearing before an immigration judge, are under
his jurisdiction. Venue is, of course, such a matter. Cf. Chlomos v. INS,
516 F.2d 310 (C.A. 3, 1975); La Franca v. INS, 413 F.24 636 (C.A. 2,
591

Interim Decision #2474
1969). Once such jurisdiction has lodged with the immigration judge, the
district director lacks the power to change, or deny a request to change,
the place of hearing.
The letter from the district director of January 22, 1976 denying the
request for change of venue therefore was of no effect. The immigration
judge should have heard the motion and decided the venue question on
its merits in the sound exercise of his discretion. Accordingly, we shall
remand the record to the immigration judge for further proceedings.
Counsel fox the respondent has requested oral argument. We have
certified this case to ourselves solely to resolve the jurisdictional issue,

and not to consider the merits of the motion. In the posture in which this
case now stands before us, we have disposed of the matter favorably to
the respondent, who appears to remain in detention. Oral argument
would appear to serve no useful purpose nor would its denial prejudice
the respondent. Accordingly, oral argument will not be scheduled in this
matter. Cf. Matter of Andrade, 14 I. & N. Dee. 651 (BIA 1974).
ORDER: ''he record is remanded to the immigration judge for
further proceedings.

592


MATTER OF H

In DEPORTATION Proceedings
A-4743741
Decided by Board August 88, 1958
floportability— Communist Party membership Meaningful association estab-

lished where respondent declines to testify—Charge based on membership
after entry may be predicated upon original admission for permanent residence although membership had terminated prior to last entry as returning
resident—Suspension of deportation—Physical presence required under section 244(a)(5) most be for continuous ten-year-period preceding application.
(1) "Meaningful association" test in Romoldr v. Perfetto, 355 U.S. 115, is met
where record establishes respondent's membership in the Communist Party
and she declines to testify as to nature of her membership.
(2) Respondent is deportable on charge of membership "after entry" when
she was lawfully admitted for permanent residence in 1929, was a member
rinitari Stator
and
of the Communist Party in
1947 with a reentry permit after a six-month-trip abroad. Bouetti v. Rogers,
356 U.S. 691, distinguished.
(3) Section 244-(a) (5) application filed In 1956 did not qualify respondent for
suspension of deportation since her departure from the United States in
1947 prevented her from completing a period of continuous physical presence in the United States of ten years prior to 1957. (Cf. Metter of
A-2669541, 5 I. & N. Dec. 261.)
CHARGES'

Warrant: Act of 1952—Section 241(a) (1) [3 U.S.C. 1251(a) (1)l—Rxcludable at entry as one who was member of the Communist Party
of the United States.
Lodged:
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)[—Excludable at entry as. one who prior to entry was a member of the
Communist Party of the United States.
Act of 1952—Section 241(a) (6) [S U.S.C. 1251(a) (6)1—Alien
who was a member of the Communist Party of the United
States subsequent to entry.
BEFORE THE BOARD

Discussion: This respondent, a 54-year-old married female, native and citizen of Great Britain, was admitted to the United States
for permanent residence in 1929: She last entered in 1947. She
has been found to have been a voluntary member of the Communist
Party of the United States during part of 1938 and 1939.
122

By order dated November 9, 1953, the special inquiry officer
ordered that the respondent be deported on the first lodged charge.
On June 25, 1954, the respondent's appeal from the order of the
special inquiry officer was dismissed. On August 27, 1954, we dismissed the motion for reconsideration. On March 10, 1955, the
Commissioner moved that proceedings be reopened to enable lodging
of the charge that the respondent had been a member of the Communist Party after her original entry in 1929. On April 20, 1955,
this motion was granted on the condition that the court considering
the respondent's request for review of administrative proceedings
would have no objection to such action. Reopened hearing was held
and on December 15, 1955, the second lodged charge was placed.
It states that the respondent is deportable under the Immigration
and Nationality Act as one who had been a member of the ComOn
munist Party of the United States after entry (in 1929).
March 30, 1956, the respondent was found deportable on the new
charge and on August 24, 1956, her appeal to this Board was dismissed. This motion for reconsideration is dated May 22, 1958.
Oral argument was granted and the respondent was heard on
June 24, 1258

Counsel seeks termination of proceedings for three reasons. He
argues that the record fails to establish that the respondent was a
member after her last entry in June 1947 and that under the rule in
Bonetti v. Rogers, 356 U.S. 691, the charge is not sustained. He
argues that the evidence of record is insufficient to sustain the
finding of deportability. And, lastly, he urges that if the respondent is found deportable, she should be declared statutorily eligible
for suspension of deportation.
We shall first discuss the sufficiency of the evidence. The reapendont refused to testify on the issue of Communist Party mem-

other than to state she was not a member of the Communist
Party at the time of the hearing. Membership in the Communist
Party was established by the testimony of Government witness
K—, a police officer who in 1928 had infiltrated the ranks of the
Communist Party to report on their activities for the police. He
remained a member until the fall of 1939. From 1936 to 1939 he
was an Assistant County Membership Director of the Communist
Party with the duty of keeping track of the units to which members belonged; and he assisted in the semi-annual dues check-up
and annual membership registration. He testified that in 1938 an
application card in the name of R M H had passed
through his hands; that it showed the person involved to be a seamstress who was working in Hollywood in a hotel; and that she was
English-Irish and foreign born. Because the last name on the
application was similar to that of his superior in the police departbership

123

ment the witness made an effort to obtain additional information
about R
II
. He stated that about 6 weeks after he had
seen the card, R M II was pointed out to him at a mass
meeting of the. Communist Party He identified the respondent as

the person who had been pointed out as R---II . He also saw
her at "open" affairs. He stated that he saw her 1939 registration
and 1938 membership book in connection with the performance of
his Communist. Party duties. He testified that his Communist
Party records did not contain information concerning persons other
than members of the Communist Party. He also testified that it
was his job to ascertain the number of dues stamps which should
be purchased by each particular unit; that he accompanied the
Communist Party official who sold the stamps to the unit clues secretary when the sale of the Stamps was made, and that a sale of
stamps was made for the respondent.
K
was put through an extensive cross-examination and displayed a good memory. He answered with care and deliberation
and impressed one as being a responsible, reliable witness. The
special inquiry officer relied upon his testimony. In view of the
fact that it was the witness' duty as a Communist Party member
to take care of Communist Party membership records, and it was
his duty as a policeman to learn about the members of the Communist Party, we believe that his contradicted testimony must be
given great weight.

Counsel believes that even if membership is proven, the record
fails to establish that it was a meaningful association required by
Rawoldt v. Perfetto, 355 U.S. 115. The respondent does not allege
that the membership was not meaningful. She has chosen not to
testify on the subject of membership in the Communist Party. There
is no explanation from her as to the nature of her membership.
Under such circumstances, we believe it proper to conclude that she
understood that the organization she had joined was the political
organization known as the Communist Party (Matter of Z----,
A-4472847, 7 I. & N. Dec. 728).
We pass on now to the issue raised by counsel concerning the
fact that the respondent last entered in 1947 and the record does
not show that she was a member of the Communist Party after
that entry, yet her deportation has been ordered on the ground
that she had been a Communist Party member after entry. The
issue is whether the Service may use the respondent's 1929 miry

or must use only the 1947 entry. Regarding her entries, the respondent testified she first entered the United States for permanent
residence in 1929 and that she has resided continuously in the
United States except for about 6 one-day "temporary trips" to
Mexico made in 1945 and a trip of about 6 months to Australia in
124

1917. She stated that at the time of leaving the United States,
whether it was to go across the border to Mexico or to go to
Australia, it had been her intention to maintain her domicile in the
United States.
Bonetti v. Ropers, 356 U.S. 691, cited by counsel, involved an
alien who was admitted to the United States for permanent residence in 1923. He had been a member of the Communist Party
of the United States from 1933 to 1936. In June 1937 he departed
from the United States for Spain "abandoning all rights of residence here." On September 19, 1938, he returned to the United
States as a "new" immigrant and was admitted for permanent residence upon surrender of a quota immigrant visa. He remained
continuously in the United States except for a one-day visit to
Mexico in September 1939. His deportation was ordered under
the Art of 1511R, as amended by the Internal Security Act of 1950,
on the ground that he was an alien who had been a Communist Party
member after entering the United States. The issue was whether
the entry he had made in 1923 could be used as a basis of deportation or whether the Service was required to use only the last entry.
The court held that the entry referred to in the deportation statute
was the one which the alien was "lawfully permitted to make" and
"under which he claims the status and right of lawful presence that
is sought to be annulled by his deportation." The court held that

since the respondent claimed no right of lawful presence because of

aid nnt by the deportation order
seek to annul any right of presence acquired under the 1923 entry,

his entry in 1923 and the Service

it must be held that the entry in 1938 constituted the entry which
must serve the basis of the deportation proceedings. (The effect
of the reentry from Mexico in 1939 was not explored).
At oral argument counsel maintained that respondent fell within
the rule of the Bonetti case because she lost the right to reenter
after her departure, since upon her return she could have been
excluded if she were excludable under the immigration laws. This
fact, although true, is not relevant to the issue. Bonetti too could
have been excluded if he had been inadmissible. That did not
prevent him from acquiring the right to lawful residence. The fact
that aliens attempting to enter must satisfy all the requirements of
the immigration laws is, therefore, not controlling. The issue is
what entry gave the alien the right of presence which the Service
seeks to annul. In Bonetti the right of presence arose out of the
entry with a vice in 1938. There was no other entry which gave
him this right. Therefore, only the 1938 entry could be used.
In the respondent's case, her right of presence arises out of the
fact that she was lawfully admitted to the United States in 1929.
She did not have a visa when she returned in 1947. She was ex125

cused from the visa requirement because she had her home in the
United States; was departing from it temporarily; and was going
to return to it. She was given a reentry permit excusing her
from the necessity of obtaining a visa; the permit was evidence that
respondent had been lawfully admitted for permanent residence and
had never given up her right to such residence (8 CFR 164, 176.2012(c), Book 1, 1946 Supp. to Code of Fed. Reg., G.P.O., Wash.,
1947). Bonetti had given up all his rights based upon his first
entry by relinquishing his domicile. He could not return with a
reentry permit,. He needed a new entry based on a new quota visa,
to give him the right to lawful residence. Respondent never gave
up her rights based on her first entry. She took pains to safeguard
these rights. Her right to lawful presence is based on the 1929
entry. The Service seeks to annul the right of presence acquired
under the 1929 entry and never abandoned. Therefore, the entry
in 1929 may serve as the basis for these proceedings. Respondent
was a member of the Communist Party after her entry in 1929. and
under such circumstances, she is deportable as charged in the second
lodged charge.
Respondent eeeks suspension of deportation under section 241(a)

(5), 8 U.S.C. 1254(a) (5), under which she was required to show a
period of ten years' physical presence in the United States immediately preceding the filing of her application (Matter of M ,
A-2669541, 5 I. & N. Dec. '261). Informal application for suspension was made at the hearing on January 26, 1956, and it was
formally presented at the hearing on March 16, 1956. Counsel
maintains that respondent was required to show only a period of
ten years' presence following the ending of the condition which
caused deportability. One difficulty with this contention is that the
respondent has not shown when the status which caused deportahility

did end. It is established that she had been a member in 1938 and
1939. She does not state when her membership ended. Conceivably it could have continued for many years after 1939 when the
Government witness left the Communist Party. In any event, we
have decided that it is the ten-year-period immediately preceding the
application during which the respondent must show physical presence in the United States (Matter of .11 , supra). We see no
reason to change this ruling. The respondent's application was
filed in 1956. It is clear that her departure in 1947 prevented her
from completing a period of continuous physical presence in the
United States of ten years prior to 1957. The fact that she has
such residence at the present cannot he of benefit to her because
when the order of deportation under the Immigration and Nationality Act became final on August 24, 1956, upon dismissal of
the appeal, respondent was not eligible for suspension of deporta126

tion. In such case, the grant of suspension of deportation is precluded (Matter of 0—, A-4188325, 7 I. 84 N Dec. 457). The
motion must be denied.
Order: It is ordered that the motion be and the same is hereby
denied.

Editor's Note: Upon consideration of a motion of the Service dated June 6,
1960, in the subject case, the Board of Immigration Appeals in an order dated
June 21, 1960, granted the motion, withdrew the outstanding order of deportation, and remanded the subject case to the Service for further consideration
and action.

127


Interim Decision #1776

MAITRE OF VITTORE

In Visa Petition Proceedings
A-14765555
Decided by Regional Commissioner August 23, 1967
Eligibility for preference OntesifIcation under section 203 ( a) (6). Immigration
and Nationality Act, as amended, as a house painter, for which position
"experience on the job" is a prerequisite, is established where beneficiary's
work experience includes employment solely as a painter from December 1962
until August 1963, end the Department of Labor has issued a certification
attesting to a shortage of like labor in the United States.
lx BEHALF OF rkarrIONEE: Vincent A. O'Neil, Esquire
306 University Building
Syracuse, New York 13202

This matter is before the Regional Commissioner on appeal from the
decision of the District Director denying the petition for preference
immigrant classification of the beneficiary under section 203(a) (6)
of the Immigration and Nationality Act, as amended.
The petitioner is a firm engaged in painting of residences. It seeks
the services of the beneficiary as a house painter. The beneficiary is a
25-year-old native and citizen of Italy, presently in the United States
after admission as a visitor fur pleasure. The District Director concluded that the beneficiary's qualifications for the position have not
been established.
The job offer, Form ES 515B, is for a painter to prepare walls and
woodwork, spackling, sanding, and to apply paint. The minimum
education and training for proficiency in this job is given therein
as "Experience on the job". The beneficiary showed in the statement
of his qualifications, Form ES 575A, that his work experience includes
employment solely as a painter from December 1962 until August
1963. His former employer has furnished a letter confirming such
employment from December 17, 1962 until August 9,1963.
The District Director found that the above described experience
is not sufficient for the position of painter. He cites the statement in
402

Interim Decision *1776
the "Occupational Outlook Handbook", a publication of the Department of Labor, 1966-67 Edition, at page 404, that :
Most training authorities, including the national joint labor management apprenticeship committee for the painting and decorating industry, recommend the
completion of a 3-year formal apprenticeship as the best way to become a
journeyman painter or paperhanger. .
-

Section 203 (a) (6) of the Immigration and Nationality Act provides for a preference in the issuance of visas "to qualified immigrants
who are capable of performing skilled or unskilled labor not of a
temporary or seasonal nature, for which a shortage of employable
and willing persons exists in the United States". The beneficiary has
the "Experience on the job" specified in the job offer. An individual
labor certification was issued on that job offer March 26, 1967 by the
Bureau of Employment Security pursuant to section 212(a) (14) of
the Act, stating that sufficient United States workers are not available
and that the employment of this alien will not adversely affect workers
in this country similarly employed. As section 203 (a) (6) of the Act
includes unskilled laborers as well as skilled laborers, petitioner adequately established the beneficiary's qualifications when he showed the
latter meets the requirements specified in the job offer and labor
certification. The appeal will therefore be sustained.

It is ordered that the appeal be sustained and the petition approved.

403


Interim Decision *1710

MATTER of

Awror.rx

In Deportation Proceedings
A-13784760
Decided by Board February 17, 1967
Respondent, a native and citizen of the Philippine Islands, who prior to December 24, 1952, entered Guam where he was employed as a qualified medical

technician and who continued to reside in Guam until his final departure
therefrom in 1957, .notwithstanding his temporary absences therefrom during
that period, is entitled to the presumption of lawful permanent residence under

8 MR 4.2 ()) [now 101.1 (1)] ; however, since respondent voluntarily departed
Guam to reside in the Philippine Islands, where he has resided continuously since 1957 until 1905 and where be has gained permanent roots by his
own voluntary acts, he cannot be regarded as still possessing a claim to permanent residencifinasmucla as his status has changed.
OrrAnam:
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)7Remained
longer—Visitor.
ON BEHALF OP BESPONDENT

ON BEHALF

or SERUM :

Dan P. Daullov, Esquire

R. A. Vielhaber

1101 Dexter Horton Bldg.
Seattle, Washington 98104
(Brief filed)

Appellate Trial Attorney
B. G. Greenwald
Trial Attorney
(Brief filed)

The case comes forward on appeal from the order of the special
inquiry officer dated September 15, 1966 finding the respondent deportable on the charge contained in the order to show cause, granting
him the privilege of voluntary d4arture in lieu of deportation with
the further order that if the respondent failed to depart when and
as required, he be deported to the Republic of the Philippines on the
charge contained in the order to show cause.
The record relates to a native and citizen of the Philippine Islands,
about 51 years old, male, who last entered the United States on
April 10, 1965, as a nonimmigrant visitor for pleasure. He was found to
have been gainfully employed since October 18, 1965 in violation of his
status and was granted until November 8, 1965 to depart. He has re127

Interim Decision #17110
mined in the United States beyond the period authorized for his
departure. After a hearing an order was issued November 19, 1965
finding him deportable and granting him voluntary departure or
ordering him deported in the event he did not depart as directed. No
appeal was taken from this decision. A motion to reopen was granted
May 12, 1966 in order to permit the respondent to present additional
evidence that he comes within the provisions of S CFR 4.2(j) promulgated December 8, 1954, effective January 3, 1955, as a person who
acquired lawful permanent residence status as a result of residence in
Guam.
At the reopened hearing it was developed 'that the respondent
enlisted in the United States Army at Camp Murphy, Philippine
Islands on February 19, 1946 and was honorably separated May 23,
1947. Prior to leaving the armed forces, he received a letter from the
Army Office of the Surgeon dated April 23, 1947 recommending him as
a laboratory technician who had received sixteen weeks training in the
army in that category and had previously been a civilian employee of
the army in the same capacity. A letter from the medical director of the
respondent's employer dated December 8, 1948 stated that the respondent had been associated with the medical department at Guam.sines
November 4 1947 and recommended him as a qualified medical laboratory technician at any institution having complete facilities of a
clinical laboratory.
Evidence produced at the hearing established that the respondent
was employed at Guam as a medical technician since October 1947 and
since March 1953 as a senior medical technician until October 6, 1956.
The employment was continuous except for temporary visits to the
Philippine Islands. He testified that before returning to the Philippines from Guam in 1957, he applied to the Immigration Service for
permanent residence, but his application was not granted. No record
of his application could be located.
The regulation upon which the respondent rests his claim to having
been granted lawful permanent residence in the United States, 8
CFR 4.2(j), relates to aliens admitted to Guam prior to December
24, 1952 who can establish by records, either throe government
agencies or contractors of government agencies, that they were admitted other than as a contract laborer and were not otherwise excludable under the Act of February 5, 1917, as amended, and who
continued to reside in Guam until December. 24, 1952 regardless of
the period of time for which they were admitted. This regulation was
subsequently amended October 23, 1956 to exclude from its provisions
those aliens who had been, after December 24, 1952; admitted or read-

128

Interim -Decision *1710
miffed to Guam as nonimmigrants. The present regulations incorporate these provisiong in 8 CFR 101.1(i).
The controlling precedent in these circumstances is •.Matter of
C—r—L—, 8 I. & N. Dec. 371 (1959). We agree with the special
inquiry officer that the respondent qualified under the original provisions of 8 CFR 4.2(j) because the work he performed required mental
rather than merely manual effort as its dominant element and therefore he did not come under the contract laborer bar of the regulations;
he was admitted to Guam prior to December 24, 1952 and can establish
by records of the contractor that he continued to reside in Guam until •
subsequent to December 24, 1952. Inasmuch as he complies with the
conditions of this regulation he should have acquired permanent read.t
dence status under that regulation as of the effective date of the regula-

tion on January 3, 1955. The amendment of October 26, 1956 did not
affect the acquisition of the respondent's status as a permanent resident
under 8 CFR 4.2(j) as originally enacted•on December .8,1954 since
such status had already been vested. Matter of C—Y—L—, supra, p.
379. The respondent was entitled to the presumption that he was a
permanent resident of the United States under 8 CFR 4.2(j) and that
this status continued until his final departure to the Philippine Islands
in October 1957.
Accepting the premise that the respondent had permanent residence
until his departure to the Philippines in 1957, the question remains
whether his absence thereafter, without knowledge that he had such
permanent residence, served to divest him of his permanent residence
status. The evidence shows that when the respondent returned to the
Philippine Islands in 1957 he intended to establish permanent residence there as evidenced by the fact that he resided there with his
.family, was employed there and attended to various private, business
enterprises. The claim of the respondent is that had he known he
was entitled to presumption of permanent residence under 8 CFR
4.2(j) , he would not have returned to the Philippine Islands but would
have brought his family to the United States and resided here. However, we must determine the case upon the facts and not upon mere
speculation.
The term "lawfully admitted for permanent residence" as defined
in section 101(a) (20) of the Immigration and Nationality Act means
the status of having been lawfully accorded the privilege of residing
permanently in the United as an ithmigrant in accordance with
the immigration laws, such status not having changed. The term "resident" as defined in section 101 (a) (33) of the.Act means the place of
general.. abode; the place of general abode of a 'person means his
129

Interim Decision #1740
principal, actual dwelling place in fact, without regard to intent.
Even accepting that the respondent was entitled to presumption of
lawful permanent residence which he acquired by his residence in
Guam, is he in any better position than a person who had immigrated
to the United States for permanent residence with a visa and thereafter has been absent from the United States for as long a period as
the present respondent? We believe that by the nature and length of
the absence, respondent's status has changed as that term is used in
section 101 (a) (20) of the Immigration and Nationality Act and he
can no longer be regarded as a returning resident.
In a similar case involving a Mexican alien who was admitted to
the United States when 7 years old and thereafter was immediately
returned by her father to Mexico where she resided continuously
except for temporary visits, it was held that the alien could not be
regarded as returning to an unrelinquished permanent lawful residence after a temporary absence abroad. Matter of Sias, Int. Dec. No.
1467. The alien, in view of her entry at such a young age and her immediate departure, probably was not aware of her permanent residence status. Nonetheless, it was held she was not admissible at the
time of her application for admission unless in possession of a valid
immigration visa.
Where a person had no knowledge that he had a claim to United
States citizenship at the time he comimtted an expatriating act, he did
not lose •United States citizenship.* The Attorney General was influenced by the Supreme Court's emphasis that where deprivation of
the "precious right of citizenship" is involved, "the facts and the law
should be construed as far as reasonably possible in favor of the
citizen," citing Nishikawa v. Dulles, 356 U.S. 129.2
However, the instant case is not comparable to cases involving the
loss of United States citizenship 'with its accompanying heavy burden.
Here the respondent at best was entitled merely to a presumption of
lawful permanent residence which he gained by his residence in Guam.
Granting that he has been found to be entitled to such status, he is in
no better position than a person who immigrated to the United States
for permanent residence with a visa and who under similar circumstances would have been considered to have abandoned his permanent
residence status. The departure of the respondent to the Philippines
Matter of 0-5---, 9 L & N. Dec. 670 (A.G., 1902) ; Matter of C—A—, 9 L & N.
Dee. 482; Ropers V. Patokoski, 271 5'.2d 858 (9th Cir. 1969).
320 V.S. 118 and Gonzales v. Landon,
I See also Schneiderman v. United States,
350 U.S. 920 where the Supreme Court in denaturalization and expatriation cases
required the Government to establish its allegations by clear, unequivocal and
convincing evidence.

130

Interim Decision #17110
was entirely voluntary, 'without duress or coercion and was in accord
with his own wishes to reside in that country. Under.the circumstances
of the case we are unable to find that the respondent, who has resided
in the Philippines continuously since 1957 until October 1965, who
has gained permanent roots in that country by his own voluntary acts,
can be regarded as still possessing a claim to permanent residence in
this country, inasmuch as his status has changed. The appeal will be
dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

131


MATTER OF C
In VISA PETITION Proceedings
A-11622931
Decided by Board March 4, 1960
Fourth preference quota status—Adult married stepdaughter may qualify.
Married stepdaughter, age 45, held eligible on petition of citizen stepfather for
fourth preference quota status as "daughter" within meaning of section
203(a) (4) of the Immigration and Nationality Act, as amended, provided
there existed an origin.il relationship of stepparent and stepchild validly
created according to the definition in section 101(b) (1) (B) of the amended
Act. (Matter of C , 5 I. & N. Dec. 512, modified.)

BEFORE `..:1-1E BOARD

Discussion: The case comes to us on certification from the decision dated February 5, 1960, of the Regional Commissioner,
Northeast Regional Office, approving the visa petition for preference quota status under section 203(a) (4) of the Immigration and
Nationality Act. on behalf of the beneficiary.
The petitioner, a native of Italy, 67 years old, male, became a
naturalized citizen of the United States on October 4, 1949. He
seeks preference quota status on behalf of the beneficiary, a native
and citizen of Italy, 45 years old, female, married. The beneficiary is the legitimate child of the first marriage of the petitioner's
wife. The petitioner married the beneficiary's mother in Italy on
April 6, 1922, when the beneficiary was less than eight years old.
The beneficiary is over 21 years of age and is the married stepdaughter of the petitioner. The only preference status under which
she could be considered is section 203(a) (4) of the Immigration and
Nationality Act as amended by the Act of September 22, 1959 (73
Stat. 644), which grants fourth preference status to brothers, sisters, married sons or married daughters of citizens of the United
States. The question, therefore, is whether the beneficiary, as a
stepdaughter, comes within the term "daughter" as used in section
203(a) (4) of the Immigration and Nationality Act.
, 5 I. & N. Dec. 512 (1953), it was held that
In Matter of C
stepdaughters were not eligible for a preference as "daughters"
within the meaning of section 203(a) (4) of the Immigration and
592

Nationality Act. The facts set forth in the case do not reflect the
age of the beneficiary when the second marriage, which made her the
stepdaughter of the petitioner, occurred.
In Matter of G
, A-7444373, Int. Dec. No. 1004 (May 28,
1959), we had under consideration the eligibility for the exercise of
the discretion contained in section 7 of the Act of September 11,
1957 (Public Law 85-316), on behalf of an alien parent of an adult
citizen of the United States. It was held that such a person satisfied the requirements of the definition of a parent in section 101(b)
(2) of the Immigration and Nationality Act, and was eligible for the

benefits of section 7 of the Act of September 11, 1957, on the theory
that once a parent qualified as such under section 101(b) (2) of
the Immigration and Nationality Act, he remained a parent even
after the child became married or over 21 years of age.
Section 203(a) (4) of the Immigration and Nationality Act as
amended by section 3 of the Act of September 22, 1959 (Public
Law 86-363), grants preference quota status to qualified quota immigrants who are the married sons or married daughters of citizens
of the United States. Section 5(b) of the amendatory Act of
September 22, 1959, provides that no petition for quota immigrant
status or preference status in behalf of a son or daughter under
paragraph (2), (3), or (4) of section 203(a) of the Immigration
and Nationality Act shall he approved by the Attorney General unless the petitioner establishes that he is a "parent" as defined in
section 101(b) (2) of the Immigration and Nationality Act of the
alien in respect to whom the petition is made.
Section 101(b) (2) defines the term "parent" for immigration
purposes as existing only where the relationship exists by reason
of any of the circumstances set forth in section 101(b) (1) of the
act. The pertinent subparagraph relating to a stepchild and stepparent for immigration purposes is set forth in subparagraph (B)
of section 101(b) (1), which sets forth the circumstances relating
to a stepparent to mean a stepchild, whether or not born out of
wedlock, provided the child has not reached the age of 18 years at
the time the marriage creating the status of stepchild occurred.
Once the relationship of stepparent and stepchild is shown to exist
in accordance with the immigration definition set forth in sections
101(b) (1) and 101(b) (2), the person involved comes within the
eligible class of a parent. The limitation on the telm "child" requires that the person be unmarried and under 21 years of age, and
the limitation on the term "stepchild" requires that the marriage
creating the status of stepchild occur before the child becomes 18
years old. Thereafter, when the child becomes more than 21 years
old or married, that person becomes a son or daughter, or, as in
this case, a stepson or stepdaughter. However, the parent or the
593

stepparent always remains a parent or stepparent, once the original
conditions of the definition have been met (Matter of
A-7414373, Int. Dec. No. 1004) .

In the instant case, the beneficiary, whose father died in 1917
and whose mother married the petitioner when the beneficiary was
but seven years of age, comes within the definition of stepchild.
The petitioner qualifies as a stepfather by virtue of the fact that the
relationship exists by reason of the circumstances relating to stepchild as set forth in section 101(b) (1) (B) of the Immigration and
Nationality Act. Section 203(a) (4) of the Immigration a nd Nationality Act as amended by the Act of September 22, 1959 (73
Stat. 644), grants fourth preference status to married sons or
d-lighters of citizens of the United States. The relationship of
stepfather and stepchild having originally been validly created
according to the definition set forth in the immigration laws, now
becomes a relationship of stepfather and stepdaughter since she is
now over 21 and married. The visa petition is approved for
fourth preference status on behalf of the beneficiary. It is not
deemed necessary to consider variations of the situation presented
in this case, since the answer to such hypothetical circumstances
would necessarily follow from the decision herein and will be decided when a proper case arises.
Order: It is ordered that the order of the Regional Commissioner,
Northeast Region, dated February 5, 1960, approving the petition to
accord the beneficiary fourth preference status is hereby approved.

594


Interim Decision #2023

MATTER OF MILIAN
In Adjustment of Status Proceedings
A-18818658
Decided by Acting Regional Commissioner February 6, 1970
An alien, not a native or citizen of Cuba, who was inspected and admitted
as a nonimmigrant subsequent to January 1, 1959, who has been physically present in the United States for at least 2 years and who is residing
with her husband in the United States, is, as the spouse of a native and
citizen of Cuba who was paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at
least 2 years, eligible to apply for adjustment of status under section 1 of
the Act of November 2, 1966, notwithstanding her marriage to such native
and citizen of Cuba occurred subsequent to the latter's adjustment of status under the provisions of that Act.

This case comes forward by certification from the District
Director, Miami, Florida, who denied the application on the
ground that the applicant is statutorily ineligible for the benefits
f section 1 of the Act of November 2, 1966.
The applicant is a native and citizen of Nicaragua who last
rrived in the United States on June 11, 1968 and was admitted
s a nonimmigrant visitor. She was granted extensions of stay,
le last to expire on March 11, 1970. She has resided in the
nited States from September 15, 1967 through April 14, 1968
id from June 11, 1968 to the present, a period well over two
e ars. The record establishes that the applicant was married on
ctober 28, 1968 to a native and citizen of Cuba who is an alien
wfully admitted to the United States for permanent residence.
ae status of the applicant's spouse had been adjusted to that of
lawful permanent resident on June 30, 1968 under the proviNis of section 1 of the Act of November 2, 1966.
The District Director has denied the application on the ground
at the applicant's husband is not an alien described in section 1
the Act of November 2, 1966. The District Director states that
alien so described is one who:
,

is a native or citizen of Cuba and

480

Interim Decision #2023
2. has been inspected and admitted or paroled into the United States subsequent to January 1, 1959, and
3. has been physically present in the United States for at least two years, if
the alien
4. makes application for such adjustment and
5. is eligible to receive an immigrant visa and
6. is admissible to the United States for permanent residence.

The District Director further states that since the applicant's
husband, as a legal permanent resident, cannot receive an immigrant visa he is not an alien described in section 1 and since the
applicant's marriage followed his acquisition of that status she is
not entitled to the benefits of section 1.
The statement submitted by the applicant for consideration on
certification urges that since her husband's status was adjusted
pursuant to section 1 (supra), he is an alien described in that
subsection. She further urges that she is residing in the United
States with her husband and that the provisions of section 1 are
therefore applicable to her.
Section 1 of the Act of November 2, 1966 provides :
That, notwithstanding the provisions of section 245(c) of the Immigration
and Nationality Act, the status of any alien who is a native or citizen of
Cuba and who has been inspected and admitted or paroled into the United
States subsequent to January 1, 1959 and has been physically present in the
United States for at least two years, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent residence if the alien
makes an application for such adjustment, and the alien is eligible to receive
an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an application for adjustment of status, the
Attorney General shall create a record of the alien's admission for permanent residence as of a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, whichever
date is later. The provisions of this Act shall be applicable to the spouse
and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United
States.

The District Director's denial is based on his interpretation of
of the Act of
November 2, 1966. We believe that he has gone beyond the
description of the alien described in section 1 when he includes
the last three conditions enumerated in his order, i.e., that such
alien make application for adjustment of status, that he is eligible to receive an immigrant visa and that he is admissible to the
United States for permanent residence. These are not a part of a
description of an alien but rather an action and conditions that
an alien may take and must meet.
what constitutes an alien described in section 1

481

Interim Decision #2023
The reference in section 1 to a description of an alien can only
apply to an alien who:
1. is a native or citizen of Cuba,
2 who has been inspected and admitted or paroled into the United States
subsequent to January 1, 1959, and
3. who has been physically present in the United States for at least two
years.

That Congress intended this description to apply is made evident
in section 2 where they state: "In the case of any alien described
in section 1 of this Act who, . . . has been admitted into the
United States for permanent residence . . ." If the description
stated by the District Director was controlling then obviously no
alien under section 2 would be eligible for the benefits of that section since they could never meet the description of section 1
having been admitted for permanent residence.
Clearly the applicant's spouse fits the description as set forth
)3,- Congress:
He is a native or citizen of Cuba.
!. He was paroled into the United States on July 26, 1962.
He has been physically present in the United States since 1962.

That the Service acknowledges this status is evidenced by the
djustment of status to that of permanent residence granted him
nder section 1 (supra) on June 30, 1968.
Section 1 (supra) provides benefits to the spouse and child of
le principal alien described therein. The statute does not require
iat the marriage, or the application for adjustment of status,
Ike place prior to, simultaneously with or subsequent to the
-incipal alien's adjustment of status to permanent residence. It
∎ es require the spouse and child to be eligible under section 1
cept for the citizenship, or nativity requirement and to be
siding with such alien in the United States. It is, of course, demtary that Congress could easily have restricted benefits to
ouses of record as of the date of adjustment. There is no such
Ariction in the language of the Act.
We find that the applicant's husband is an alien described in
Act of November 2, 1966, that the applicant is the spouse of
'I alien and has been inspected and admitted to the United
rtes, that she has been physically present in the United States
two years and that she is residing with her husband in the
ited States.
)11DER : The decision of the District Director, Miami, Florida,
-eversed and the applicant's request for adjustment of status
)einianent residence is granted conditioned upon issuance of a
1. number applicable to Western Hemisphere natives.

482

Interim Decision #2024

MATTER OF MARTINEZ AND LONDONO *

In Deportation Proceedings
A-18618218
A-18623304
Decided by Board February 11, 1970
A nonimmigrant visitor for pleasure who accepts employment thereby fails
to comply with the conditions of his status and is deportable under section
241 (a) (9) of the Immigration and Nationality Act. [Matter of Wong, 11
I. & N. Dec. 704, reaffirmed.]

CHARGE:
Order: Act of 1952—Section 241 (a) (9) [8 U.S.C. 1251 (a) (9) J—Visitorfailed to comply (both).
ON BEHALF OF RESPONDENTS:
Leon Rosen, Esquire
11 West 42d Street
New York, New York 10036

ON BEHALF OF SERVICE:
Clay Doughty
Appellate Trial Attorney

(Brief filed)

The cases come forward on appeal by the respondents from the
decision of the special inquiry officer who found them deportable
as charged but granted the privilege of voluntary departure with
an alternate order that if they did not leave the United States
within 30 days, they be deported to Colombia. The respondents
admit the allegations of fact contained in the orders to show
cause but both deny that they are deportable as charged.
The respondents are unmarried male aliens, native and citizens
of Colombia, who were admitted to the United States as nonimmigrant .visitors for pleasure. Martinez was admitted at New
York on March 1, 1969 and Londono was admitted at Miami,
Florida on March 17, 1969. After admission both respondents
obtained employment at the same corporation in Hauppauge, New
York, where they are presently working. The period of time for
which they were permitted to remain in the United States has
* Reaffirmed. See 433 F.2d 635 (1970).

483

Interim Decision #2024
since expired. Because of accepting employment while in the
United States as nonimmigrants they were found deportable by
the special inquiry officer as being in violation of section
241 (a) (9) of the Immigration and Nationality Act, in that, after
admission as nonimmigrants under section 101(a) (15) of the Act
they failed to comply with the conditions of such status.
Counsel argues that these respondents are not dep.ortable as
charged because neither the Immigration and Nationality Act of
1952, as amended, nor any regulation promulgated by the Attorney General, prohibits a visitor for pleasure from obtaining
employment during his sojourn in the United States. He points
out, and it is conceded by the Service, that there is no specific section of the Act which sets forth that employment is precluded for
a nonimmigrant. Counsel then alludes to the portion of section
214 (a) of the Immigration and Nationality Act that provides for
the admission to the United States of nonimmigrants "at such
time and under such conditions as the Attorney General may by
regulations prescribe", and then points out that the Attorney
:eneral has never prescribed a regulation prohibiting employnent by a nonimmigrant. Counsel contends that this being the
;ase the respondents did not fail to comply with the conditions of
heir entry and are thus not deportable under section 241 (a) (9)
f the Immigration and Nationality Act. The special inquiry
fficer rejected this argument, and, after careful study of the
latter, we will affirm his decision that the respondents are
eportable as charged.
Counsel concedes that the exact question now raised has been
insidered by us in a number of previous cases I but argues that
ese decisions are not in accordance with the applicable provims of law and that the Board should now give further study to
is specific question.
All of the cases cited above deal with the question of whether a
nimmigrant who has been admitted for a specific purpose is
titled during his brief stay in the United States to accept
ployment, and all the cases hold that lie is not. Prior to August
1958, 8 CFR 214.2(c) specifically prohibited the employment of
lonimmigrant. On that date and on several occasions subsemt thereto substantial portions of the Code of Federal Regulans and the Immigration and Nationality Act which related to
Matter of Borounzazztl, Interim Decision No. 1983 (BIA, 1969) ; Matter of
zg, 11 I. & N. Dec. 704 (BIA, 1966) ; Mutter of Garvey, 10 I. & N. Dec.
(BIA, 1964); Matter of S , 8 I. & N. Dec. 574 (BIA, 1960) ; see also
v. Robinson, 246 F.2d 739 (7 Cir., 1957).
—

484

Interim Decision #2024
the admission of nonimmigrants were revised and expanded. 8
CFR 214.2(c) was rescinded and on October 3, 1965, section
212(a) (14) of the Immigration and Nationality Act, which contains the labor certification provisions applying to aliens who
come to the United States to perform skilled or unskilled work,
became law.
In the case of Wei v. Robinson, supra, which was decided when
8 CFR 214.2(c) was in effect, the court said, on page 746, that
even if there was no specific proscription against employment by
nonimmigrants, it would be impractical and unnecessary that
there be such a statutory interdiction in the case before it. In
that ease Wei had been admitted to the United States temporarily
for the specific purpose of obtaining military training from the
United States Army. He completed his training course and then,
instead of returning to his native country of Formosa, he
remained in the United States and obtained employment. The
court held that this was at such variance with the purpose for
which he was admitted that he had obviously failed to maintain
the nonimmigrant status under which he was permitted to be in
the United States and he was deportable under section 241 (a) (9)
of the Act.
Matter of Bourournand, Matter of Garvey and Matter of S—,
supra, all decided since the rescission of 8 CFR 214.2(c), held
that nonimmigrant students who accepted employment without
permission had failed to comply with the conditions of their
status. In Matter of Wong, supra, which is on all fours with the
present case, the respondent was a temporary visitor for pleasure
who accepted unauthorized gainful employment, and we held that
this was inconsistent with his status and violated the terms of his
admission and he was thus deportable. We are not disposed to
reverse our decisions in these cases.
Although the present Act and the regulations pertaining thereto
contain no specific prohibition against employment by nonimmigrant visitors, we hold that such provision is unnecessary. We
call attention to the intent of Congress as set forth in Senate
Report No. 1137, 82d Congress, 2d Session, page 19, in which the
Judiciary Committee of the Senate in explaining the term "temporary visitor" among other things stated: "Under no circumstances are aliens admitted as temporary visitors for pleasure to
be permitted to work." Also, looking at the phrase "temporary
visitor for pleasure" in its plain and generally understood meaning, we cannot conclude that such visitor who obtains employment is carrying out the purpose for which he was admitted. In
485

Interim Decision #2024
the instant cases the respondents are gainfully employed five days
a week, eight hours a day. This renders it impossible to characterize their being in the United States as visitors for pleasure.
In reaching this conclusion we do not rely on a definition of
"visitor for pleasure" promulgated by the Department of State as
22 CFB, 41.25, which definition was alluded to in Matter of Wong,
supra. That regulation stated that the term "pleasure" as used in
section 101 (a) (15) (B) of the Immigration and Nationality Act
refers to legitimate activities of a recreational character, including tourism, amusement, visit with friends or relatives and rest.
Counsel contends in his brief and at oral argument that the
Attorney General simply cannot adopt a State Department regulation because Congress did not empower the Secretary of State
to promulgate a regulation governing the conditions of admission
of a nonimmigrant, but rather it specifically empowered the

Attorney General to do so. However, since our decision is in 310
way based on the State Department regulation, the question
raised is moot and it is not necessary for us to further consider
it. Further, our decision in the cases before us is not based in any
way upon the Form FS 257A, which presumably was handed to
the respondents when they entered the United States, which contains a notice to the alien who enters on a temporary visa that he
is not permitted to work.
Finally, the present law is replete with requirements and conditions relative to those who can work. For instance, under section
101 (a) (15) (H) special classes of nonimmigrant aliens are admitted to perform temporary work. And, spouses of exchange visitors, who are classified by visa symbol J-2, can apply for permission to work, whereas the spouses of nonimmigrant students,
admitted under the symbol F-2, cannot work. The most impor:ant provision is section 212(a) (14), whose purpose is to protect
:he American labor market. This provides that those aliens
coming to the United States to perform skilled or unskilled work
rust obtain a certification from the Secretary of Labor that there
are not sufficient workers in the United States to perform the
particular work and that the employment of the alien will not
adversely affect the wages and working conditions of the workers
.n the United States similarly employed. The regulations pertainng to this section of law are very detailed. The 1968 Annual
Report of the Immigration and Naturalization Service, table 4,
sage 34, shows that for the year ended June 30, 1968, the total

lumber of nonimmigrant visitors for pleasure admitted to the
Jnited States was 2,042,666. The very careful safeguards that

486

Interim Decision #2024
Congress has erected in the law to protect the American labor
market would go for naught if visitors for pleasure were free to
take gainful employment during the time of their authorized stay.
Construing the statute as a whole, we again arrive at the conclusion that a visitor for pleasure is not permitted to work and if he
does, he has failed to comply with the conditions of his status.

For these reasons we hold that the respondents are deportable
as charged and we will affirm the decision of the special inquiry
officer and will dismiss the appeals.
ORDER: It is ordered that the appeals be and the same are
hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order the respondents be permitted to depart from the
United States voluntarily within 30 days from the date of this
decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to
depart, the respondents shall be deported as provided in the special inquiry officer's order.

487


Interim Decision #2380

MATTER OF ROMERO
In Visa Petition Proceedings
A-20582443
Decided by Board May 9, 1975
The petitioner who claimed to be a United States citizen by birth in Puerto Rico, applied
for immediate relative status for the beneficiary as her spouse, under section 201(b) of
the Immigration and Nationality Act. The petition was denied, and the appeal dismissed. Petitioner failed to produce satisfactory identification to establish that she was
the person named in the birth certificate upon which her claimed United States citizenship was based. In the course of separate interviews, a number of discrepancies
developed between the information furnished by the petitioner and the beneficiary.'
Thereafter, the Service requested additional evidence, including photographs and fingerprints of the petitioner, pursuant to 8 CFR 103.2(b)(1). Petitioner refused to be
photographed or fingerprinted or to Submit additional evidence of identity. Petitioner's

refusal of these requests, along with the unexplained discrepancies in testimony was
sufficient reason to deny the petition.

or SEn viuz:
Paul C. Vincent
Appellate Thal Attorney

ON BEHALF OF PETITIONER.

ON BEHALF

Albert L. Merlis, Esquire
11 Park Place
New York, New York 10007

The petitioner applied for immediate relative status for the beneficiary as the spouse of a United States citizen under section 201(b) of
the Inunigrati on and Nationality Act. In a decision dated March 18,
1974, the district director denied that petition. The appeal will be
dismissed.
The petitioner claims to be a United States citizen by birth in Puerto

Rico on August 2, 1952. The alien beneficiary is a native and a citizen of
Colombia, born on March 21, 1949. A marriage certificate in the record
shows that the petitioner and the beneficiary were married in
Hempstead, Kew York on September 14, 1973.
On March 1.3, 1974, in response to a written request by the Service,
the petitioner and the beneficiary appeared for an interview in connection with the visa petition. The written request had instructed the
petitioner to bring proper identification. The petitioner and the beneficiary were interviewed separately without the presence of counsel,
since counsel had given the Service written authorization to proceed
with the interiiews in his absence.
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Interim Decision #2380
In the course of their separate interviews, a number of discrepancies
appeared between the information furnished by the petitioner and that
furnished by the beneficiary. In addition, the petitioner could not produce identification to establish that she was the person referred to in the
Puerto Rican birth certificate which she submitted to establish her
United States citizenship.
In light of the discrepancies and the failure to furnish proper identification, the petitioner and the beneficiary were referred to the Investigations Section of the Service for inquiry into whether their marriage
was a "sham" marriage undertaken for the purpose of circumventing the
immigration laws.
Upon arriving in the Investigations Section, the petitioner was advised of her rights including the right to remain silent and the right to
counsel. She was then asked to furnish fingerprints and photographs to
aid in establishing her identity. She refused to be fingerprinted or
photographed. Thereupon, the interview was terminated.
The district director denied the visa petition on the grounds that the
petitioner had failed to establish her identity as a United States citizen
and that she had failed to show that her marriage to the beneficiary was
not a marriage of convenience, entered into for the purpose of obtaining
immigration benefits for the beneficiary in circumvention of the immigration laws.
On appeal, counsel argues that the petitioner was denied due process

because of the Service's request that she submit fingerprints and photographs.
In visa petition proceedings, the petitioner has the burden of establishing the validity of the claimed relationship. Matter of Branagan, 11
I. & N. Dec. 493 (BIA 1966). A beneficiary is not entitled to immigration
status on the basis of a marriage entered into for the primary purpose of
evading the immigration laws, irrespective of the validity of that marriage under the applicable domestic law. Matter of M—, 8 I. & N. Dec.
217 (BIA 1958); Matter of Kitsalis, 11 & N. Dee. 613 (BIA 1966).
S CPR 103. 2(b)(1) authorizes the Service to make reasonable requests
for the submission of additional evidence and to make any necessary
investigation in connection with the adjudication of any application or
petition. The issue in the present case is whether the request for
fingerprints and photographs was reasonable under the circumstances.
The petitioner's failure to identify herself properly, and the discrepancies disclosed upon initial examination, raised the possibility that
a marriage fraud was involved in the present case. In order to resolve
this possibility of fraud, the petitioner was requested to submit fingerprints and photographs to aid in establishing her identity and the bona
fides of her marital relationship with the beneficiary.

The purpose of the photographs was for use in a neighborhood inves295

Interim Decision #2380
tigation to ascertain whether the petitioner was known to reside with
the beneficiary at the address claimed in the visa petition. Such investigation is within the scope of the authorization contained in 8 CFR
103.2(b)(1).
The purpose of the request for fingerprints was to ascertain whether
the petitioner was in fact the person she claimed to be. "Fingerprints

have long been recognized as a scientific and accurate means of identification." Thom v. New York Stock Exchange, 306 F. Supp. 1002, 1006
(S.D.N.Y. 1969), aff'd sub nom., Miller v. New York Stock Exchange,
425 F.2d 1074 (C.A. 2, 1970), cert. denied, 398 U.S. 905 (1970). 1
In the specific factual context of this ease, where the initial questioning of the petitioner and the beneficiary raised the possibility of fraud,
and the petitioner failed to present adequate identification, the request
for fingerprints and photographs was reasonable. We emphasize that
compliance with this request was not mandatory, but rather was voluntary on the part of the petitioner. The petitioner had the option of
declining to submit the fingerprints and photographs. However, by
choosing not to submit the requested evidence, the petitioner took the
risk that the inadequacy of her identification and the discrepancies in
her testimony would result in denial of her visa petition for failure to
establish the claimed relationship.
Had the petitioner adequately established her identity by other evidence, and if the interview had raised no reasonable possiblity of marriage fraud, the petition presumably would have been granted without
resort to fingerprints or photographs. However, it is notable that even
on appeal, no allegation has been made that the petitioner has other
evidence cf her identity to submit, or that she is willing or able to
explain the discrepancies that appeared from the interview.
Our review of the record satisfies us that the petitioner has failed to
sustain her burden of establishing the claimed relationship. Consequently, the appeal will be dismissed.
ORDER: The appeal is dismissed.

The tour; in Thom considered the widespread use of fingerprinting in noncriminal
contexts. The court stated: "In sum, the public has long recognized it as a valuable and
reliable means of identification, and to suggest that a stigma attaches when It Is so used is
to fly in the face of reality." 306 F. Supp. at 1009.
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Interim Decision #1696

MATTER OF GARCIA-11E131DES

In Deportation Proceedings
A-13402252
A-13423161-2

Decided by Board February 16, 1967
The determination as to whether an alien is entitled to classification as -a refugee pursuant to the provisions of section 203(a) (7), Immigration and Nationality Act, as amended by P.L. 80-230, lies solely within the authority of
the District Director (8 OPR 245.4), from which determination no appeal lies;
and once the District Director has made Such a determination, the special
inquiry officer's consideration thereafter is properly directed only to the pertinent aspects of the application for adjustment of status to that of a permanent resident, as a matter of discretion.
0/faltrin•

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251]—Nonimmigrant
(temporary visitor for pleasure)—Remained longer
(all aliens).
ON itETr ATV Or SzeroNDENT:

ON Brzers or SEaVICE:

'Ciro Malgtrasi, Esquire
Cafe Tetuan 200
Apartado 2245
San Juan, Puerto Rico 00903

Irving A. Appleman
Appellate Trial Attorney

On March 11, 1966, the District Director approved applications filed
by the adult respondents for classification as refugees, pursuant to
section 203 (a) (7) of the Immigration and Nationality Act (8 U.S.C.
1153).
On April 11, 1966, the special inquiry officer, finding that it was not
the Congressional intent to accord the respondents status as refugees,
deemed it his obligation and duty to deny their applications for adjustment of status to that of permanent residents, as a matter of discretion, and did so. However, he did then grant their alternative requests for voluntary departure, with a. provision for their deportation
on the above-stated grounds in the event of their failure to so depart.
He then certified the case to this Board for final decision.
On July 20, 1060, this Board remanded the caso to the special in75
5214354-89-7

Interim Decision #1696
quiry officer for the purpose of affording him an opportunity to reconsider the respondents' applications for adjustment of status to
that of permanent residents, on the merits. In so doing, we pointed out
that the special inquiry officer lacked authority to review the respondents' applications for classification as refugees under section 203 (a) (7)
of the Immigration and Nationality Act.
Despite the foregoing decision of this Board, on remand the special
inquiry officer again considered the question of whether the respondents were entitled to classification as refugees under section 203(a)
(7) of the Immigration and Nationality Act, per langem et latera. On
that occasion, however, it was his conclusion that they were entitled
to such status. He also found that the respondents have established
their eligibility for adjustment. of their status to that of permanent

residents, and he thereupon granted such relief, He then directed that
the proceedings be terminated but certified the case to this Board for
final decision.
These respondents constitute a family group consisting of a 50year - old husband and his 34-year-old wife, both natives and citizens of
Spain, and their 7-year-old son, a native and citizen of Cuba, who may
also have a valid claim to Spanish nationality. All the respondents were
last admitted to the United States as nonimmigrant temporary visitors
for pleasure, the adult male on November 20, 1961, and the other two
respondentson June 29, 1962. All the respondents were authorized to
remain iii the United Statei as visitors. until July 17, 1964, and they
were thereafter given the privilege of departing from this country
without the institution of deportation proceedings on or before November 6, 1965. They have; however, remained in this country since that
date without authority.
The foregoing establishes the deportability of the respondents, as
charged. This has been conceded throughout the course of these
proceedings and is unchallenged here. This aspect of the case, accordingly, needs no further discussion.
The special inquiry officer has already granted these respondents the
privilege of voluntary departure. Suffice it to say, in this connection,
that the record before us supports said official's action in this respect.
The special inquiry officer has also now granted the respondents' applications for adjustment of their status to that of permanent residents
pursuant to section 245 of the Immigration and Nationality Act, as
amended. His discursive opinion of December 2, 1966, contains rather
meagre treatment of this aspect of their cases. However, our review of
the record does support his action in this respect. Accordingly, his
decision will be approved.
Before entering an order to that effect, however, brief comment is
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Interim Decision #1696
required concerning the special inquiry officer's persistent efforts to
review the District Director's decision to approve the respondents'
applications for classification as refugees under section 208(a) (7)
of the Immigration and Nationality Act. As we previously pointed out,
this is a matter which the regulations (8 CFR 245.4) place solely within
the authority of the District Director, as follows :
* a * the determination as to ' whether an alien is entitled to the claimed
preference status shall be made by the District Director ; no appeal shall lie from
his determination.

Once the District Director has exercised the authority delineated in the
foregoing regulation in favor of an alien, the special inquiry officer's
consideration thereafter is properly directed only to the requirements
other than the availability of a quota number, including the question of
whether the application for adjustment of the alien's status to that of a
permanent resident should be granted, as a matter of discretion.
ORDVII: It is ordered that" the special inquiry officer's decision of
December 2, 1966, granting the applications of these respondents for
adjustment of their status to that of permanent residents, and further
directing that the proceedings in their cases be terminated, be and
tiresome is hereby afritnied.

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Interim Decision #4012

Matter of Juan Pablo AGUILAR-MENDEZ, Respondent
Decided March 12, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The respondent’s conviction for assault by means of force likely to produce great bodily
injury in violation of section 245(a)(4) of the California Penal Code is categorically one
for a crime involving moral turpitude. Matter of Wu, 27 I&N Dec. 8 (BIA 2017), followed.
FOR RESPONDENT: Hector R. Ortega, Esquire, Montebello, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jean Lin, Assistant Chief
Counsel
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;
LIEBOWITZ, Appellate Immigration Judge; GELLER, Temporary Appellate Immigration
Judge.
MALPHRUS, Deputy Chief Appellate Immigration Judge:

In a decision dated March 13, 2018, an Immigration Judge denied the
respondent’s application for cancellation of removal under section
240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)
(2018), and his request for voluntary departure pursuant to section 240B(b)
of the Act, 8 U.S.C. § 1229c(b) (2018). The respondent has appealed from
this decision. The appeal will be dismissed in part, and the record will be
remanded for further consideration of his request for voluntary departure.
The respondent has also filed a motion to terminate his removal proceedings,
which will be denied.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United
States without being admitted or paroled. On September 2, 2014, he was
placed in removal proceedings after he was personally served with a notice
to appear. Although this notice to appear did not specify the time or date of
the respondent’s initial removal hearing, the record reflects that he was
served with a notice of hearing on September 5, 2014, which informed him

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that his initial hearing was scheduled to take place at 8:30 a.m. on
September 23, 2014, at the Los Angeles, California, Immigration Court. 1
The respondent appeared at the scheduled hearing with counsel. He
conceded proper service of the notice to appear, admitted the factual
allegations contained in the notice to appear, and conceded that his entry
without admission or parole rendered him removable as charged. He then
applied for cancellation of removal under section 240A(b)(1) of the Act.
On July 11, 2014, the respondent was convicted of assault by means of
force likely to produce great bodily injury in violation of section 245(a)(4)
of the California Penal Code. The Immigration Judge concluded that this
offense was a conviction for a crime involving moral turpitude under section
212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2018), which
rendered the respondent statutorily ineligible for cancellation of removal.
The Immigration Judge also denied the respondent’s request for voluntary
departure.
The respondent argues on appeal that he is eligible for cancellation of
removal because his conviction for assault under California law is not one
for a crime involving moral turpitude. He also contends that he is eligible
for voluntary departure and warrants this benefit as a matter of discretion.
During the pendency of his appeal, he filed a motion to terminate, arguing
that his notice to appear was defective and did not vest the Immigration Judge
with jurisdiction over his removal proceedings because it failed to specify
the time and date of his initial hearing. We review these questions of law,
discretion, and judgment de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2020).

II. ANALYSIS
A. Cancellation of Removal
To establish eligibility for cancellation of removal, the respondent must
demonstrate, among other things, that he has not been convicted of a crime
involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act.
Section 240A(b)(1)(C) of the Act; see also 8 C.F.R. § 1240.8(d) (2020). To
determine whether the respondent’s assault conviction is one for a crime
involving moral turpitude, we use the categorical approach, examining
whether the elements defining section 245(a)(4) “fit[] within the generic
definition of a crime involving moral turpitude.” Matter of Silva-Trevino, 26
I&N Dec. 826, 831 (BIA 2016) (applying the categorical approach
articulated in Moncrieffe v. Holder, 569 U.S. 184, 190 (2013), in the moral
turpitude context); see also Safaryan v. Barr, 975 F.3d 976, 985 (9th Cir.
1

We note that the notice to appear and notice of hearing specified the address of the Los
Angeles Immigration Court.

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Interim Decision #4012

2020). An “element” of a statute is conduct that must be “‘necessarily’
involved” in an offense. Moncrieffe, 569 U.S. at 190 (citation omitted).
“The term ‘moral turpitude’ generally refers to conduct that is ‘inherently
base, vile, or depraved, and contrary to the accepted rules of morality and the
duties owed between persons or to society in general.’” Matter of Wu,
27 I&N Dec. 8, 9 (BIA 2017) (quoting Matter of Silva-Trevino, 26 I&N Dec.
at 833). “To involve moral turpitude, a crime requires two essential elements:
reprehensible conduct and a culpable mental state.” Id. (quoting Matter of
Silva-Trevino, 26 I&N Dec. at 834).
At all relevant times, the respondent’s statute of conviction provided:
Any person who commits an assault 2 upon the person of another by any means of
force likely to produce great bodily injury shall be punished by imprisonment in the
state prison for two, three, or four years, or in a county jail for not exceeding one
year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine
and imprisonment.

Cal. Penal Code § 245(a)(4) (West 2014).
In Matter of Wu, we considered a previous version of this statute, which
punished “an assault upon the person of another with a deadly weapon or
instrument other than a firearm or by any means of force likely to produce
great bodily injury.” Cal. Penal Code § 245(a)(1) (West 2011) (emphasis
added). We held that all forms of assault proscribed by this statute (including
assault by means of force likely to produce great bodily injury) necessarily
involve reprehensible conduct and a culpable mental state falling within the
definition of a crime involving moral turpitude. Matter of Wu, 27 I&N Dec.
at 14–15.
In 2012, the California Legislature removed “the distinct offense of
assault by means likely to produce great bodily injury” from former section
245(a)(1) and placed it in a new and separate section—namely, section
245(a)(4), the respondent’s statute of conviction. Safaryan, 975 F.3d at 980
n.1; see also Matter of Wu, 27 I&N Dec. at 9 n.2. Although the respondent
was convicted under section 245(a)(4), rather than former section 245(a)(1),
the operative language of both statutes is identical. Thus, our reasoning in
Matter of Wu regarding the elements of former section 245(a)(1) applies with
equal force to section 245(a)(4). See Safaryan, 975 F.3d at 984 n.3 (noting
the similarity of these statutes and stating that its decision to uphold our
determination in Wu regarding “the prior version of § 245(a)(1) is necessarily
dispositive of . . . § 245(a)(4) as currently codified” (emphasis added)).
2
At the time of the respondent’s offense, California defined “assault” as “an unlawful
attempt, coupled with a present ability, to commit a violent injury on the person of another.”
Cal. Penal Code § 240 (West 2014).

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Like a conviction under former section 245(a)(1), a violation of the
respondent’s statute of conviction must involve “an intentional ‘violent
act’ . . . with force likely to cause serious bodily injury that ‘by its nature will
directly and immediately cause’ the application of physical force to another.”
Matter of Wu, 27 I&N Dec. at 14 (citation omitted). In Wu, we concluded
that such conduct necessarily involves “a culpable mental state greater than
recklessness or criminal negligence” falling squarely “within the definition
of a crime involving moral turpitude.” Id.
Additionally, like former section 245(a)(1), a violation of the
respondent’s statute of conviction must involve an aggravating factor that
renders an assault offense under that provision reprehensible. Id. at 15; see
also Matter of Sanudo, 23 I&N Dec. 968, 971 (BIA 2006) (recognizing that
assault offenses may be classified as reprehensible, and thus crimes involving
moral turpitude, if they necessarily involve an aggravating factor, such as the
intentional infliction of serious bodily injury on another). Specifically,
section 245(a)(4) “require[s] that a perpetrator willfully use . . . force likely
to produce great bodily injury, while being aware of the facts that make it
likely that such conduct will cause, at a minimum, great bodily injury to
another person.” 3 Matter of Wu, 27 I&N Dec. at 15 (footnote omitted); see
also Safaryan, 975 F.3d at 988. We explained in Wu that there is no
meaningful difference between “a person who willfully commits such
dangerous conduct with knowledge of all the facts that make it dangerous”
and “one who commits [such] conduct with the knowledge that it is
dangerous.” Matter of Wu, 27 I&N Dec. at 14; see also Safaryan, 975 F.3d
at 987 (finding our conclusion in this regard to be reasonable because
committing “a violent act . . . by use of ‘force likely to produce great bodily
injury,’ presents an objectively obvious risk of substantial harm”).
“Weighing the dangerous conduct necessarily involved in a violation of
[section 245(a)(4)] along with the culpable mental state needed to commit
such a violation,” we conclude, as we did with respect to former section
245(a)(1), that the conduct criminalized under the respondent’s statute of
conviction “‘deviates further and further from the private and social duties
that persons owe to one another and to society in general’ and categorically
falls within the definition of a crime involving moral turpitude.” Matter
of Wu, 27 I&N Dec. at 15.
The circuit courts, including the United States Court of Appeals for the
Ninth Circuit, in whose jurisdiction this case arises, have observed that the
phrase “moral turpitude” is the “quintessential example of an ambiguous
phrase,” and they have accorded deference to our determinations that “certain
3

For purposes of assault under section 245(a)(4), “[g]reat bodily injury is bodily injury
which is significant or substantial, not insignificant, trivial or moderate.” People
v. Drayton, 255 Cal. Rptr. 3d 361, 362 (Ct. App. 2019) (citation omitted).

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Interim Decision #4012

conduct is morally turpitudinous in [our] precedential decision[s].”
Marmolejo-Campos v. Holder, 558 F.3d 903, 909, 911 (9th Cir. 2009)
(en banc); see also, e.g., Nunez-Vasquez v. Barr, 965 F.3d 272, 279 (4th Cir.
2020) (same). Our case-by-case determinations in this regard promote the
consistent application of the immigration laws nationwide. See Immigration
Reform and Control Act of 1986, Pub. L. No. 99-603, § 151(1), 100 Stat.
3359, 3384 (stating that “the immigration laws of the United States should
be enforced . . . uniformly”).
Significantly, the Ninth Circuit has accorded deference to our holding in
Matter of Wu that assault by means of force likely to produce great bodily
injury under former section 245(a)(1) is categorically a crime involving
moral turpitude. Safaryan, 975 F.3d at 987. As noted, the elements of that
offense are identical to those of the respondent’s statute of conviction. See
id. at 984 n.3. Thus, our holding in Matter of Wu controls here, and the
Immigration Judge correctly determined, based on that holding, that the
respondent’s conviction for assault by means of force likely to produce great
bodily injury in violation of section 245(a)(4) of the California Penal Code
is categorically a conviction for a crime involving moral turpitude. We will
therefore affirm the Immigration Judge’s determination that this conviction
renders the respondent statutorily ineligible for cancellation of removal
pursuant to section 240A(b)(1)(C) of the Act.
B. Voluntary Departure
The respondent also challenges the Immigration Judge’s decision to deny
his request for voluntary departure. The Immigration Judge stated in his
decision, without elaboration, that he was denying voluntary departure in the
exercise of discretion. 4 However, he did not make findings of fact regarding
the relevant favorable and unfavorable factors in making this discretionary
determination. See Matter of Arguelles, 22 I&N Dec. 811, 817 (BIA 1999)
(outlining the favorable and unfavorable factors an Immigration Judge
should consider in assessing whether voluntary departure is warranted in the
exercise of discretion); see also 8 C.F.R. § 1003.1(d)(3)(i) (limiting this
Board’s fact-finding ability on appeal). We will therefore remand the record
for the Immigration Judge to make all necessary findings of fact regarding
the favorable and unfavorable factors in this case and determine whether or
4

The Immigration Judge’s decision does not clearly address whether the respondent has
been a person of good moral character during the 5-year period immediately preceding the
entry of a final administrative order in this case. See Matter of Ortega-Cabrera, 23 I&N
Dec. 793, 795 & n.1 (BIA 2005). However, since the respondent’s conviction was entered
more than 5 years ago, it falls outside the good moral character period and does not bar
him from seeking voluntary departure pursuant to section 240B(b)(1)(B) of the Act.

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Interim Decision #4012

not the respondent’s request for voluntary departure warrants a favorable
exercise of discretion. See Campos-Granillo v. INS, 12 F.3d 849, 852–53
(9th Cir. 1994) (remanding for an Immigration Judge to make all necessary
findings regarding the favorable and unfavorable factors relating to a request
for voluntary departure).
C. Termination
Finally, the respondent’s arguments in support of termination are
foreclosed by intervening precedents from the Ninth Circuit and this Board,
holding that a notice to appear that fails to specify the time or place of an
alien’s initial removal hearing vests an Immigration Judge with jurisdiction
over proceedings, so long as a notice of hearing specifying this information
is later served on the alien. See Aguilar Fermin v. Barr, 958 F.3d 887, 895
(9th Cir.), cert. denied, 141 S. Ct. 664 (2020); Karingithi v. Whitaker, 913
F.3d 1158, 1162 (9th Cir. 2019), cert. denied, Karingithi v. Barr, 140 S. Ct.
1106 (2020); Matter of Rosales Vargas & Rosales Rosales, 27 I&N Dec. 745,
753–54 (BIA 2020); Matter of Bermudez-Cota, 27 I&N Dec. 441, 447 (BIA
2018). Here, the respondent was served with a notice of hearing specifying
the time and place of his removal hearing, and jurisdiction properly vested in
his case.
Additionally, the respondent has not shown that the notice to appear in
this case violated his right to due process.
See United States
v. Bastide-Hernandez, 986 F.3d 1245, 1248 (9th Cir. 2021) (“While a
defective [notice to appear] does not affect jurisdiction, it can create due
process violations.”); see also, e.g., LaChance v. Erickson, 522 U.S. 262, 266
(1998) (“The core of due process is the right to notice and a meaningful
opportunity to be heard.”). Although, as noted, the notice to appear in this
case did not specify the time and date of his initial hearing, the respondent
was served with notices of hearing specifying this information, and he
appeared for his initial hearing and each of his subsequent hearings, as
scheduled. Because the respondent has not demonstrated, in accordance with
the applicable circuit standard, that the deficiency in his notice to appear
“potentially affected” the outcome of his case, we are not persuaded that it
violated his right to due process. Gomez-Velazco v. Sessions, 879 F.3d 989,
993 (9th Cir. 2018) (stating that an alien claiming a violation of due process
must demonstrate that the alleged violation “potentially affected” the
outcome of immigration proceedings).
Thus, there is no basis for terminating the respondent’s proceedings or
remanding the record. See Matter of Sanchez-Herbert, 26 I&N Dec.
43, 45 (BIA 2012). Accordingly, the motion to terminate is denied, the
respondent’s appeal from the Immigration Judge’s decision denying his
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application for cancellation of removal is dismissed, and the record is
remanded for further consideration of his request for voluntary departure.
ORDER: The motion to terminate is denied, and the respondent’s
appeal is dismissed in part.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and the
entry of a new decision.

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