Interim Decision #1463

Kamm OF MasAvynala.
In Visa Petition Proceedings
LOS N 4220
—

-

Decided by Acting Regional Comniisioner April 29, 1986
Petition to accord beneficiary nonimmigrant Classification under • sestion
101(a) (15) (H) (iii), Immigration and Nationality Act, as an MU—FA:dal
trainee in retail floristry, is denied since the beneficiary, who was admitted
to the United States as a temporary worker under the provisions of section
101(a) (15) (H) (ii), is a skilled ornamental horticulturist; the training program consists primarily of a repetition, review, and day-to-day practical
application of his present knowledge; and the evidence submitted indkates
that he will be engaged in productive labor- and that any training received
'would be incident/II thereto. •

Discussion: This case is before the Regional Commissioner on
appeal from this decisiOn of the District Director denying the peti-

tion for the following reasons:
Beneficiary entered the United States Jane 20, 1963 as a temporary worker
and has been employed by florists in the United States since that date as an
ornamental horticulturist You have failed to establish that the beneficiary
requires training to be proficient in his occupation of florist

The petitioner is president of Plower View Gardens, Inc., a well
established retail florist doing business at 1801 N. Western Avenue,
Los Angeles, California.
The beneficiary is a25-year-old male, native and citizen of Japan,
who was last admitted to the -United States on June 20, 1963 as a
tempoiary worker under the provisions of section 101(a) (15) (II)(ii) of the Immigration and Nationality Act. This admission to the
United States was based on the beneficiary's ocoupation as an ornamental horticulturist and the established need for his temporary
services in the United. States. Since his admission to the United
States, the beneficiary has been employed in his occupation by florists
in New Jersey, Pennsylvania, and California.
The petitioner offers to train the beneficiary in retail floristry design, marketing, general. floral decorating, and retail florist manage157

InteriM Decision #1463
"ment. He has submitted an outline of a training program in support
of the _petition. The 'training program consists of 6 months basic
floristry work with very little academic training. This is followed
by general instruction and practical application with some emphasis
on the business aspects. The petitioner estimates it will take two

years to complete the training depending upon the ability of the
trainee. Qualifications for a trainee are set out as: "Must have
basic understanding of .retail florist industry" and "some floristry
background." The petitioner has not trained anyone under this
program.
In the brief - in support of the appeal, petitioner stresses that

knowledge, experience, and day-to-day application are necessary to
obtain the thorough knowledge that a florist must have for a strong
basic understanding of the retail flower industry. Five exhibits are
attached to the brief on appeal, all of -which deal with the LOS
Angeles and United States market Emphasis is placed upon the
fact that the trainee must be familiar with all of these exhibits.
It is conceded that practical day-to-day experience will increase
proficiency in any line of endeavor. However, the statute involved
here is one that contemplates the training of an individual rather
than giving him further experience by day-to-day application of his
skills. The beneficiary, by the very terms of his admission into the
United States, was a skilled ornamental horticulturist when he arrived in the United States. In fact, he was brought to the United
States because his skillg were in demand in this country. There is
nothing contained in the first year of the training program that is
other than a repetition of the beneficiary's present lmowledge. The
second year is devoted to a review of all phases of the first year plus
the business aspects of retail floristry.

A careful consideration Of the record in this case reveals the District Director's denial of the petition was correct and that the additional evidence submitted indicates the beneficiary will be engaged
in productive labor and that any training received would be incidental thereto. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

158


Cite as 27 I&N Dec. 247 (A.G. 2018)

Interim Decision #3922

Matter of A-B-, Respondent
Decided by Attorney General March 30, 2018
U.S. Department of Justice
Office of the Attorney General
The Attorney General denied the request of the Department of Homeland Security that
the Attorney General suspend the briefing schedules and clarify the question presented,
and he granted, in part, both parties’ request for an extension of the deadline for submitting
briefs in this case.

BEFORE THE ATTORNEY GENERAL
On March 7, 2018, pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), I
directed the Board of Immigration Appeals (“Board”) to refer its decision in
this case to me for review. To assist in my review, I invited the parties to
submit briefs not exceeding 15,000 words in length and interested amici to
submit briefs not exceeding 9,000 words in length. I directed that the parties
file briefs on or before April 6, 2018, that amici file briefs on or before
April 13, 2018, and that the parties file any reply briefs on or before
April 20, 2018.
On March 14, 2018, the respondent filed a request for an extension of the
deadline for submitting briefs from April 6, 2018, to May 18, 2018. On
March 16, 2018, the Department of Homeland Security (“DHS”) submitted
a motion containing three requests: (1) that I suspend the briefing schedules
to permit the Board to rule on the Immigration Judge’s August 18, 2017,
certification order; (2) that I clarify the question presented in this case; and
(3) that I extend the deadline for submitting opening briefs to May 18, 2018.
The respondent subsequently filed a response requesting that I grant the same
relief.
This Order addresses all pending requests from the parties.

I. DHS’s Request To Suspend the Briefing Schedules
DHS’s request to suspend the briefing schedules until the Board acts on
the Immigration Judge’s certification request is denied. DHS suggests that
this case “does not appear to be in the best posture for the Attorney General’s
review,” because the Board has not yet acted on the Immigration Judge’s
attempt, on remand from the Board, to certify the case back to the Board.
See DHS’s Mot. on Cert. to the Att’y Gen. at 2 (citing United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260 (1954)).
247

Cite as 27 I&N Dec. 247 (A.G. 2018)

Interim Decision #3922

The certification from the Immigration Judge pending before the Board
does not require the suspension of briefing because the case is not properly
pending before the Board. The Immigration Judge did not act within his
authority, as delineated by the controlling regulations, when he purported to
certify the matter. The Immigration Judge noted in his order that an
“Immigration Judge may certify to the [Board] any case arising from a
decision rendered in removal proceedings.” Order of Certification at 4,
(Aug. 18, 2017) (emphasis added) (citing 8 C.F.R. § 1003.1(b)(3), (c)). The
regulations also provide that an “Immigration Judge or Service officer may
certify a case only after an initial decision has been made and before an
appeal has been taken.” 8 C.F.R. § 1003.7 (2017).
Here, the Immigration Judge did not issue any “decision” on remand that
he could certify to the Board. The Board’s December 2016 decision
sustained the respondent’s appeal of the Immigration Judge’s initial decision
and remanded the case to the Immigration Judge “for the purpose of allowing
[DHS] the opportunity to complete or update identity, law enforcement,
or security investigations or examinations, and further proceedings, if
necessary, and for the entry of an order as provided by 8 C.F.R.
§ 1003.47(h).” Matter of A-B- at 4 (BIA Dec. 8, 2016). Under 8 C.F.R.
§ 1003.47(h) (2017), the Immigration Judge on remand was directed to “enter
an order granting or denying the immigration relief sought” after considering
the “results of the identity, law enforcement, or security investigations.” “If
new information is presented, the immigration judge may hold a further
hearing if necessary to consider any legal or factual issues . . . .” Id.
In this matter, DHS informed the Immigration Judge that the respondent’s
background checks were clear. See Order of Certification at 1. Given the
scope of the Board’s remand and the requirements of the regulations, the
Immigration Judge was obliged to issue a decision granting or denying the
relief sought. If the Immigration Judge thought intervening changes in the
law directed a different outcome, he may have had the authority to hold a
hearing, consider those legal issues, and make a decision on those issues. Cf.
8 C.F.R. § 1003.47(h). Instead, the Immigration Judge sought to “certify”
the Board’s decision back to the Board, essentially requesting that the Board
reconsider its legal and factual findings. That procedural maneuver does not
fall within the scope of the Immigration Judge’s authority upon remand. Nor
does it fall within the regulations’ requirements that cases may be certified
when they arise from “[d]ecisions of Immigration Judges in removal
proceedings,” id. § 1003.1(b)(3); see also id. § 1003.1(c), and that an
Immigration Judge “may certify a case only after an initial decision has been
made and before an appeal has been taken,” id. § 1003.7. Because the
Immigration Judge failed to issue a decision on remand, the Immigration
Judge’s attempt to certify the case back to the Board was procedurally
248

Cite as 27 I&N Dec. 247 (A.G. 2018)

Interim Decision #3922

defective and therefore does not affect my consideration of the December 16,
2016, Board decision.
Furthermore, the present case is distinguishable from Accardi, because,
here, the Board rendered a decision on the merits, consistent with the
applicable regulations. It is that December 8, 2016, decision that I directed
the Board to refer to me for my review. See Matter of A-B-, 27 I&N Dec.
227, 227 (A.G. 2018) (directing the Board “to refer this case to me for review
of its decision” (emphasis added)). The Board issued that decision
“exercis[ing] its own judgment” and free from any perception of interference
from the Attorney General. Accardi, 347 U.S. at 266. My certification of
that decision for review complies with all applicable regulations. See
8 C.F.R. § 1003.1(h)(1)(i) (“The Board shall refer to the Attorney General
for review of its decision all cases that . . . [t]he Attorney General directs
Board to refer to him.” (emphasis added)). It is therefore unnecessary to
suspend the briefing schedule pending a new decision of the Board.

II. DHS’s Request To Clarify the Question Presented
I deny DHS’s request to clarify the question presented. In my March 7,
2018, order, I requested briefing on “[w]hether, and under what
circumstances, being a victim of private criminal activity constitutes a
cognizable ‘particular social group’ for purposes of an application for asylum
or withholding of removal.” Matter of A-B-, 27 I&N Dec. at 227. Although
“there is no entitlement to briefing when a matter is certified for Attorney
General review,” Matter of Silva-Trevino, A.G. Order No. 3034-2009
(Jan. 15, 2009), I nevertheless invited the parties and interested amici “to
submit briefs on points relevant to the disposition of this case” to assist my
review. Matter of A-B-, 27 I&N Dec. at 227. As the Immigration Judge
observed in his effort to certify the case, several Federal Article III courts
have recently questioned whether victims of private violence may qualify for
asylum under section 208(b)(1)(B)(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2012), based on their claim that they were
persecuted because of their membership in a particular social group. If being
a victim of private criminal activity qualifies a petitioner as a member of a
cognizable “particular social group,” under the statute, the briefs should
identify such situations. If such situations do not exist, the briefs should
explain why not.
DHS requests clarification on the ground that “this question has already
been answered, at least in part, by the Board and its prior precedent.” Board
precedent, however, does not bind my ultimate decision in this matter. See
section 103(a)(1) of the Act, 8 U.S.C. § 1103(a)(1) (2012) (providing that
“determination and ruling by the Attorney General with respect to all
249

Cite as 27 I&N Dec. 247 (A.G. 2018)

Interim Decision #3922

questions of law shall be controlling”). The parties and interested amici may
brief any relevant issues in this case—including the interplay between any
relevant Board precedent and the question presented—but I encourage them
to answer the legal question presented.

III. The Parties’ Requests for an Extension of the Deadline for
Submitting Briefs
I grant, in part, both parties’ request for an extension of the deadline for
submitting briefs in this case. The parties’ briefs shall be filed on or before
April 20, 2018. Briefs from interested amici shall be filed on or before
April 27, 2018. Reply briefs from the parties shall be filed on or before
May 4, 2018. No further requests for extensions of the deadlines from the
parties or interested amici shall be granted.
In support of respondent’s request for an extension, she asserted that “an
extension of the briefing deadline is warranted because [r]espondent intends
to submit additional evidence with her brief in support of her claim,”
including the possibility that she might obtain new evidence from
El Salvador. Resp’t Request for Extension of Briefing Deadline at 4
(Mar. 14, 2018). Although I retain “full decision-making authority under the
immigration statutes,” Matter of A-H-, 23 I&N Dec. 774, 779 n.4 (A.G.
2005), I requested briefing on a purely legal question to assist my review of
this case, and I encourage the parties to focus their briefing on that question.
Further factual development may be appropriate in the event the case is
remanded, but the opportunity to gather additional factual evidence is not a
basis for my decision to extend the briefing deadline.

250


MATTER OF C

Application for Certificate of Citizenship
A-11452378
Decided by Regional Commissioner August 6, 1959
approved by Assistant Commissioner

Presumption of lawful admission-8 CFR 101.1(j)—Not applicable where no
passport was issued—Exemption from passport requirement does not render
applicant eligible.
The presumption of lawful admission for permanent residence under 8 CFR
101.1(j) (1) is available only to an alien who was erroneously issued a
United States passport or included in the passport of his citizen parent
accompanying him or to whom he was destined. Hence, a Canadian-born
alien child, erroneously admitted in 1943 as a United States citizen, accompanied by a United States parent, who was not issued or included In a
United States passport, cannot be presumed to have been lawfully admitted,
notwithstanding that, as a Canadian national, toe child was exempt rrotn
passport requirements.

BEFORE THE REGIONAL COMMISSIONER

Discussion: This case .is on appeal from a decision of the district director, dated April 27, 1959, denying the application for a
certificate of citizenship upon the ground that there is no record

of applicant's lawful admission for permanent residence.
The record discloses that applicant was born in Canada on May
26, 1941, to a native-born citizen mother and an alien father. Her
mother had resided in the United States from birth on January 8,
1920, to 1938, when she went to Canada to reside. She returned to
the United States on February 20, 1943, accompanied by the applicant. On that date applicant was erroneously admitted as a citizen
of the United States. Neither she nor her mother had a United
States passport, nor was the applicant then in possession of an
immigration visa.

Her lather %. ■ as naturalized tin September 10,

1949.
Section 201(g) of the Nationality Act of 1940, in effect at the
time of the applicant's birth, conferred citizenship at birth upon:
A person born outside the United States and its outlying possessions of
parents one of whom is a citizen of the United States who, prior to the birth
of such person, has had ten years' residence in the United States or one of its

421

outlying possessions, at least five of which were after attaining the age of
sixteen years, the other being an alien * * *.

Since her mother had not resided in the United States for the
required ten-year period prior to May 26, 1911, the date of the
applicant's birth, the applicant did not acquire citizenship at birth
(Matter of S

-

F

, 2 I. & N. Dec. 182).

The applicant claims that she derived citizenship through the
naturalization of her father on September 16. 1949.
Section 313 of the Nationality Act of 1940, then in force, provided:
A child born outside of the United States, one of whose parents at the time
of the child's birth was an alien and the other of whose parents then was and
never thereafter ceased to be a citizen of the United States, shall, if such
alien parent is naturalized, be deemed a citizen of the United States, when—
(a) Such naturalization takes place while such child is under the age of
eighteen years; and

(b) Such child is residing in the United States at the time of naturalization
or thereafter and begins to reside permanently in the United States while
under the age of eighteen years.

No issue is raised as to any of the above conditions, except that
of the applicant's permanent residence in the United States at the
time of her father's naturalization.
Lawful permanent residence has alwo: . been a prerequibile to
derivative citizenship (Senate Report. No. 1515, 81st Cong., 2d
Sess., p. 707; see too, Matter of At , 3 I. & N. Dec. 815). Until
one is admitted in conformity with the immigration laws, no rights
of citizenship' can be acquired (United States en rel. Goldman v.
Tod, 3 F.2d 836). Even though an alien may reside physically
within the United States, if he be in an excluded class, such residence cannot be considered as a permanent residence (Schneider v.
United States Immigration and Naturalization Service, 65 F. Supp.
377, affirmed 161 F.2d 1022 (1947)).
Not having acquired citizenship at birth, the applicant was an
alien at the time of her admission to the United States and as such
was required to be in possession of a valid immigration visa to be
lawfully admitted for permanent residence. She was not in possession of such a document. Accordingly, she was excludable and
not lawfully residing in the United States at the time of her
father's naturalization. See Matter of S F
, Wpm.
Applicant maintains that her admission as a citizen was the fault
of this Service and that she was not informed that such admission
was erroneous until her application was denied. This argument is
adequately answered by the following comments of the court in
Schneider v. United States Immigration and Naturalization Service,
eupra:
—

422

* * irrepeetive of who wtte to biome, and certainly this petitioner, duo

to his infancy when he crossed the border, could not be held accountable, this
court is bound to follow the interpretation placed upon the word 'dwelling' as
announced by the Supreme Court.

Although that case involved a prior statute, its rationale is
applicable to the instant case.
It remains to be determined whether the applicant's erroneous
admission as a citizen may be presumptively regarded as a lawful
one for permanent residence.
Part 101.1(j), Title S. Code of Federal Regulations, presumes
a lawful admission for permanent residence in the case of :
(1) An alien for whom there exists a record of admission prior to September 11, 1957, as a United States citizen who establishes that at the time of
such admission he was the child of a United States citizen parent; he was
erroneously issued a United States passport or included in the United States
passport of his citizen parent accompanying him or to whom he was destined;
no fraud or misrepresentation was practiced by him in the issuance of the
Passport or in gaining admission; he was otherwise admissible at the time of
entry except for failure to meet visa or passport requirements; and he has
maintained a residence in the United States since the date of admission. * * *

Applicant meets all the requirements of this portion of the regu,
latio»s except that she had not been erroneously issued a passport
or included in the United States passport of her citizen mother.
As pointed out above, neither the subject nor her mother had a
passport. Absent this essential requirement, this portion of the

regulations affords no benefit, to the applicant.
It is urged that the passport requirement has no application to the
instant case for the reason that passports were not required under
the circumstances of the applicant's entry from Canada. This contention must be rejected. The language of Part 101.1(j) is clear
and unambiguous. No exceptions or deviations are set forth.
Literal compliance therewith is necessary in order that an entry
may be presumed lawful for permanent residence.
In view of the foregoing, it is concluded that the subject has
failed to establish that she was lawfully admitted into the United
States for permanent residence. Lacking this essential element,
she did not derive citizenship upon the naturalization of her father
and she is not of the clean of persons to whom issuance of

a cer-

of citizenship is authorized. The decision of the district
director will be affirmed.
Order: It is ordered that the decision of the district, director
denying the application for a certificate of citizenship be and the
same hereby is affirmed.
tificate


MATTER OF F----

In DEPORTATION Proceedings
A-8363769
Decided by Board November 10, 1959
Conviction—By foreign court martial sustains deportability under section
241(a)(1) of 1952 act.
Conviction of crime involving moral turpitude by foreign court martial is
competent to sustain deportability under section 241 (a) (1 ) of 1052 net
based upon Inadmissibility at the time of entry.
(0-ubbels v. Hoy, 261 F.2d
952, distinguished.)

CHARGE:
Order : Act of 1952—Section 241 (a) (1) 18 U.S.C. 1251 (a) (1)1—Excludable
because convicted of looting and theft.
BEFORE THE BOARD

Discussion: The respondent appeals from an order entered by
the special inquiry officdr July 28, 1959, directing his deportation
under section 241(a) (1) of the Immigration and Nationality Act
(S U.S.C. 1251(a) (1)) as an alien excludable by the law existing
at the time of his last entry, to wit, one who has been convicted of
a felony or other crime or misdemeanor involving moral turpitude
(section 3, Immigration Act of February 5, 1917; 8 U.S.C. 136
(1940 ed.)). Exceptions have been taken to the finding of deportability.
The facts of the case are not in controversy. It is conceded that
the respondent is an alien, a national of the Netherlands, male,
married, 35 years of age; and that he last entered the United States
for permanent residence through the port of New York on August
9, 1952. He was convicted on October 4, 1947, by a court martial
of the Naval Forces of the Netherlands in the East Indies, for two
offenses, namely, looting committed in January of 1947, and theft
committed on April 7, 1947.
The issues raised on appeal are twofold. The respondent urges
in the first instance that a conviction by a foreign military tribunal
in time of war should not be afforded the same dignity as a conviction by a civil court of his peers. Respondent, in other words,
rnnintnins that as e matter of law a judgment by a foreign court

martial will not support an order of deportation based upon a provision of the immigration laws which provides for the deportation
of an alien who was excludable at the time of entry as one "who
(has) been convicted of * * * a felony or other crime or misdemeanor involving moral turpitude" (section 241(a) (1), Immigration and Nationality Act; section 3, Immigration Act of February
5, 1917). Respondent cites no authority to support his position.
The issue of whether a sentence imposed by a military court or
court martial is within the contemplation of the criminal provisions
of the immigration laws has been before the Federal Courts on at
least, two occasions. The United States District Court for the District of Columbia in the case of Friedenberg v. Brownell, April 28,
1:254, Civil Action Na. 2225-53, unreported, ruled that a criminal
conviction by a United States court martial in Germany was not a
conviction "in this country" within the purview of section 19(a)
of the Immigration Act of 1917, as ammaleil (8 U.S.C. 155(a),
1940 ed.)? The coin t, reasoned that it was bound by the plain
common-sense meaning of the words "in this country" as found in
section 19(a), supra.
The United States Court of Appeals for the 9th Circuit in the
recent case of Gubbels v. Hoy, 261 F.2d 952, November 14, 1958,
ruled that an alien convicted of crimes involving moral turpitude
on two occasions by a United States court martial in Germany was
not subject to deportation under section 241(a) (4) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (4) ). 2 The court held
that when subsection (a) (4) is read in conjunction with subsection
(b) (2) of section 241, 3 it refers only to sentences imposed by civil
'That portion of section 19(a) pertinent here renders an alien deportable
who, after May 1, 1917, "is sentenced to imprisonment for a term of one year
or more because of conviction in this country of a crime involving moral turpitude, committed within five years after the entry of the alien to the United
States" (emphasis supplied).
2 The pertinent portion of section 241(a) (4) reads as follows: "Any alien
in the United States (including an alien crewman) who— * * * (4) is convicted of a crime involving moral turpitude committed within five years after
entry and either sentenced to confinement or confined therefor in a prison or
corrective institution, for a year or more, or who at any time after entry
is convicted of two crimes involving moral turpitude, not arising out of a
single scheme of criminal misconduct, regardless of whether the convictions
were in a single trial."

a Section 241(b) (2) reads: "The provisions of subsection (a) (4) respecting
the deportation of an alien convicted of a crime or crimes shall not apply * * *
(2) if the court sentencing such alien for such crime shall make, at the time
of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be
deported, due notice having been given prior to making such recommendation
to representatives of the interested State, the Service, and prosecution authorities, who Shall be granted an opportunity to make representations in the
matter * * *."

470

criminal courts, and a fortiori sentences imposed by military tribunals are not within the contemplation of section 2-11(a) (4)
(supra 2 ). The court reasoned that the qualifying provision of
subsection (b) (2) is an important part of the legislative scheme
expressed in subsection (a) (4) of section 241 (supra 2 ) and this
provision extends to the alien an important right or privilege which
is not readily available to an alien convicted by a military court.
We find no factors in respondent's case comparable to those be-

the court in either the Friedenberg or Guhbels cases. Unlike
Friedenberg, respondent's deportation is not sought under a provision of the immigration laws which requires a conviction "in this
country." Section 241(a) (1) of the Immigration and Nationality
Act does not extend to the respondent "any important right or
privilege" whereby deportation could be avoided by a recommendation of the sentencing tribunal. Furthermore, such a reeommendation by a foreign tribunal would not preclude the respondent's
deportation or exclusion (Matter of B , 7 I. & N. Dec. 166
fore

(B.I.A., 1956) ; Mercer v. Lence, 96 F.2d 122 (C.C.A. 10, 1938),

cert. den. 305 U.S. 611).
Section 241(a) (1) of the Immigration and Nationality Act (8
U.S.C. 1251(a) (1)) renders an alien deportable who "at the time of
entry was * * * excludable by the law existing at the time of such
entry." Respondent last entered on August 9, 1952, at a time when
section 3 of the 1917 act, supra., excluded aliens "* * * who have
been convicted of * * * a felony or other crime or misdemeanor involving moral turpitude."
It is well settled that crimes concerned with the theft of property
involve moral turpitude (United States ex rel. Rizzi° v. Kenney,
50 F. 2d 418 (D.C. Conn., 1931)). It is also established law that
the record of a foreign court showing conviction is to be taken as
conclusive evidence of conviction of the crimes disclosed by it
(United States ex rel. Mylius v. Uhl, 203 Fed. 152, affd. 210 Fed.
860 (C.C.A. 2, 1914)).
The respondent at the time of his conviction on October 4, 1947,
was a member of the Armed Forces of the Netherlands stationed in
India. The Supreme Court of the United States has recognized
the power Of the military to exercise jurisdiction over persons
directly connected with the armed forces of a nation (Duncan v.
Kahanamoku, 327 U.S. 304, 313 (1946), and cases cited). 4 The
Supreme Court has also held that the judgments of a court martial
when concerned with military personnel "* * * rest on the same
We are

cognizant of the recent rulings by the Supreme Court that military

tribunals have no jurisdiction over civilians

indirectly

connected with the

armed forces of a nation (United States en rel. Toth v. Quarles, 350 U.S. 11
, (1955) ; Reid v. Covert, 354 U.S. 1 (1957)).
471

basis, and are surrounded by the same considerations which give
conclusiveness to the judgments of other legal tribunals, including
as well the lowest as the highest, under like circumstances" (Ex
parte Reed, 100 U.S. 13, 23 (1879)).
The immigration laws must be uniformly administered and immigration officers acting in an administrative capacity are in no position to go behind the record to inquire into the legal status of the
tribunal whose judgment of conviction is before us. There are
exceptions to this rule and we have on rare occasions determined
that a foreign court did not have jurisdiction because the alien was
convicted in absentia (Matter of K—, A-8020497 (B.I.A., Aug.
6, 1952, unreported) ; cf. Ex parts Koerner, 176 Fed. 478 (Wash.,
ij'09); Matter of W , A-6833631 (B.I.A., Oct. 7, 1953, unreported)). We have on occasion held that an alien has not been
convicted of an offense involving moral turpitude when the record
of conviction shows on its face that the offense was political or that
he was charged because of political considerations (Matter of B
, E 89552
1 I. & N. Dec. 47 (Atty. Gen., 1941) ; Matter of B
(B.I.A., Feb. 5, 1954, unreported)). Since the respondent's case
does not present factors which would bring it within any of the
exceptions to the general rule, we conclude that his conviction by a
court martial has the same finality as that of a civil c -iurt.
The respondent urges that assuming, but not conceding, his conviction by a military court supports the order of deportation he is
not deportable because the offenses were committed prior to the
effective date of the Immigration and Nationality Act, December
24, 1952, and therefore section 241(a) (1) does not apply to him. It
is well established that the Immigration and Nationality Act of
1952 is retroactive in its effect (Harisiades v. Shaughnessy, 342 U.S.
580; Carlson v. Landon, 342 U.S. 521; Matter of A , 6 I. & N
Dec. 540, and cases cited).
The respondent is married and his wife and 3 minor children
reside in the United States. His wife is a lawful permanent resi
dent alien and his youngest child was born in the United State:
There is no application for discretionary relief before us. Howeve discretionary relief does not appear to be available for the n
spondent inasmuch as he is deportable as a criminal alien. TI
appeal will be dismissed.
Order: It is directed that the appeal be and the same is herel
-

dismissed.

472


MATTER OF C

In DEPORTATION Proceedings
A-10265782

Decided by Board August 20, 1960
Expatriation—Dual national—Conclusive presumption of voluntariness.
at time of birth abroad pursuant to section 1993, Revised Statutes, was lost under section 349(a) (3)
of the Immigration and Nationality Act upon performance of military service in the Italian Army 1953-1955. Where the evidence establishes that at
the time of hic military service the respondent was a dual national of the
United States and Italy who had been physically present in Italy for more
than ten years, the conclusive presumption of voluntariness of the expatriating action attaching under section 349(b) of the Act precludes defense that
respondent's army service was involuntary and the result of conscription.

Fteepondent's United States citizenship Required

CHARGE :

Order: Act of 1952—Section 241(a) (2) [8 "U.S.C. 1251(a) (2)]—Nonimmigrant remained longer than permitted.
BEFORE THE BOARD

DISCUSSION: This case is before us on appeal from a decision
of a special inquiry officer granting voluntary departure and directing that the respondent be deported if he fails to depart voluntarily.
The respondent is a 28-year-old male, native of Italy, who claims
TTnited States citizenship. His marital status is not shown in the
record. He last entered the United States on February 5, 1956, and
was admitted as a nonimmigrant crewman. The sole contested issue
is whether the government has established that the respondent is an
alien.
The respondent's father was born at Jersey City, New Jersey, on
March 15, 1008, and went to Italy with his parents in 1911 where he
has eince recided. He was married to the respondent's mother on
February 15, 1932, and the respondent was born in Italy on May 15,
1932, at which time his father was still a citizen of the United States.
At birth, the respondent acquired United States citizenship under
section 1993 of the Revised Statutes but the question arises whether
he lost his citizenship by service in the Italian Army from May 5,
1953, to July 1, 1955. The respondent claims this service was in-

voluntary

and the result of conscription.
41

Under section 349(a) (3) of the Immigration and Nationality Act
[8 U.S.C. 1481(a) (3)] a national of the United States loses his
nationality by entering or serving in the armed forces of a foreign
state with certain exceptions not here pertinent. Subsection (b)
[8 U.S.C. 1481(b)] provides that any person who commits any act
specified in subsection (a) "shall be conclusively presumed to have

done so voluntarily and without having been subjected to duress of
any kind, if, such person at the time of the act was a national of
the state in which the act was performed and had been physically
present in such state for a period or periods totaling ten years or
more immediately prior to such act." We previously considered this
presumption in Matter of ill Cr--, 7-665 (1958). The respondent
had been physically present in Italy for over ten years prior to 1053,

having lived there continuously since his birth in 1932. This leaves
for consideration the question of whether the respondent's case meets
the other condition necessary to raise this conclusive presumption, that
is, whether he was a national of Italy in 1953.

The Service takes the position that the respondent's paternal
grandfather was by birth a citizen of Italy ; that he never became a
United States citizen; and that the respondent and his father became
at birth dual nationals of the United States and Italy, Italian
citizenship having been acquired under a provision of Italian law
which vests such citizenship at birth in the child of ati Italian
citizen (Article I of the Italian Nationality Law of June 13, 1912,
an English translation of which appears in Nationality Laws by
Flournoy and Hudson, pages 363 to 367, and Article 4 of the Italian
Civil Code of June 25, 1865). The respondent testified that he does
not know whether his paternal grandfather ever became a United
States citizen but that he was born in Italy. On June 13, 1958, the
respondent's father executed before an American consular officer an
application for registration as a United States citizen in which he
stated that his father emigrated to the United States about 1904;
that he resided continuously in the United States from 1904 to 1911;
and that he was not naturalized as a citizen of the United States.
Counsel asserts that if the respondent's grandfather was naturalized as a citizen of the United States, he would have lost his Italian
citizenship and the respondent and his father would not have
acquired Italian nationality. Of course, it would have been necessary fur the United States naturalization to have occurred prior to
March 15, 1908, when the respondent's father was born in the United
States. In any event, counsel does not assert that the respondent's
grandfather was actually naturalized in the United States but only
that he might have been. The contention of counsel is that the
government must establish that the respondent's grandfather was
42

nut naturalized during the period of his residence in the United

States.
In this connection, the government presented three documents
(exhs. R-1, R-2 and R-3) at the reopened hearing. Exhibit R-3 is
a letter from the Italian Ministry of Foreign Affairs to the effect
that the registry of Meta di Sorrento does not show that the respondent's grandfather was ever registered as a citizen of the United
States. The special inquiry officer gave no weight to this exhibit
and we have disregarded it. Counsel claims that there is an erroneous statement in exhibit 11-2. This is a certificate by the appropriate officer of the Department of State, and we believe it is
clear that there is no error in the certificate but that it means that
a search was made, of the passport records from 1871 through 1931
for A—C— (and three similar names), who was born in Italy on
November 3, 1871, and no record was found. However, we do not
rely on this certificate because, even if the respondent's grandfather
had been naturalized in this country, he might have departed in 1911
without obtaining a United States passport.
The third document (exh. R-1) includes the certifications of the
appropriate officers showing that the Service maintains a centralized
index of all persons naturalized after September 27, 1906, and that
after diligent search no record or entry has been found evidencing
the United States naturalization of the respondent's grandfather.
8 U.S.C. 1360(d) specifically authorizes such a certificate concerning
nonexistence of a record.
Commencing in 182l and throughout the period of United States
residence of the respondent's grandfather, there had been a requirement that an applicant for naturalization must have resided in
the United States for five years (section 2165 of the Revised Statutes;
section 4 of the Act of June 29, 1906, 34 Stat. 596). If the respondent's grandfather emigrated to the United States in 1904 as
indicated above, then he could not have been naturalized until
1909 which would mean that the respondent's father had prior
thereto acquired dual citizenship of the United States and Italy,
he having been born on March 15, 1908. There is no contention that
the respondent's grandfather had come to the United States at so
early a date that he could have completed five years' residence before
September 27, 1906, and exhibit 11 - 1 establishes that he was not
naturalized after that date.
With respect to the certification (exh. R-1) concerning the nonexistence of a record of the naturalization of the respondent.'s grand
father, counsel contends that a certificate of naturalization might
have been issued by a state court and not reported to the Central
Office of the Service. Section 3 of the Act of June 29, 1906 (34
Stat. 596) conferred exclusive jurisdiction to naturalize aliens on
43

"all certificates of naturalization
shall be consecutively numbered and printed on safety paper" furnished by the former Bureau of Immigration and Naturalization.
Section 12 of that Act made it the duty of the clerk of court to send
a duplicate of each certificate of naturalization to the Bureau within
30 days after the issuance of the certificate and provided a penalty
if the clerk of court failed to properly account for any certificate
certain courts and provided that

furnished to him by the Bureau. Section 18 made it a felony for

any clerk of court to issue a certificate of naturalization except upon
a final order of the court.
Counsel offered no proof to support his bare allegation that a
certificate of naturalization might have been issued to the respondent's grandfather without being reported to the Central Office of
the Service. We are convinced that the government has established
by exhibit 13. 1 that the respondent's grandfather was not naturalized as a United States citizen. In addition, there is the statement
of the respondent's father in exhibit 8 that his father was not
naturalized as a United States citizen and the evidence showing that
the respondent's grandfather could not have completed five years'
residence in order that he might have obtained naturalization prior
to the birth of the respondent's father.
In view of the foregoing, it is our considered opinion that the
government has established by clear, convincing and unequivocal
evidence that the respondent's paternal grandfather had not lost
-

his Italian nationality prier to the birth of the respondent's father

on March 15, 1908, and that the latter and this respondent acquired
at birth dual nationality of the United States and Italy. Accordingly, the respondent is within the terms of the conclusive presumption set forth in 8 U.S.C. 1481(b), and we hold that he became
expatriated under 8 U.S.C. 1481(a) (3) by reason of his service in
the Italian Army from May 5, 1953, to July 1, 1955. Counsel conceded that the respondent was admitted to the United States on
February 5, 1956, as a nonimmigrant crewman for the period his
vessel remained in port, but in no event to exceed 29 days, and that
he has remained in the United States beyond the authorized time.
We conclude, therefore, that he is deportable on the charge stated in
the order to show cause and the appeal will be dismissed.
Miring the oral argument, the Service representative referred to
the Italian Nationality Law of June 13, 1912, supra, and stated that
under the provisions of article IX(3) the respondent's paternal
grandfather, if he had lost Italian nationality by naturalization in
the United States, would have reacquired Italian nationality two
years after his return to Italy in 1911. We have held that in addition to two years' residence in Italy there must be an affirmative act
on the part of the naturalized United States citizen indicating a

44

voluntary acceptance of Italian nationality before loss of United
States citizenship occurs (Matter of V—, 3 671 (1949) ; Matter of
R—, 6 15 (1953) ; Matter of Al—, 6 7C (1953); Matter of M—,
6 590 (1955)). In these decisions, the affirmative act was necessary
-

-

-

-

before loss of United States citizenship occurred, but the mere fact of
two years' residence would restore Italian nationality even though
United States nationality might not be lost. Since we have found that
the respondent's paternal grandfather was never naturalized as a
United States citizen, it is unnecessary for us to consider this contention of the Service.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

45


Interim Decision #2537

MATTER OF VARAGIANIS
In Deportation Proceedings
A-8207711

Decided by Board October 15, 1976
Respondent was convicted upon a plea of guilty of unlawful possession of marihuana in
violation of section 318–B:26 of the New Hampshire Revised Statutes Annotated for
which he was sentenced to six months' imprisonment. Sentence was suspended and he
was placed on probation for two years. Notwithstanding a subsequent order of the court
annulling the record of conviction and sentence under New Hampshire law, the conviction still stands for various state purposes and, therefore, is a conviction within the
meaning of section 241(a)(11) of the Immigration and Nationality Act, as amended.
CHARGE:
Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)1—Convicted for violation of
a law relating to marihuana
ON BEHAT ,F AF RFAPATITMMT.

Jahn A Pino, P.squir.

Samuel Bonaccorso, Esquire
Pino, Busconi & Bonaccorso
Three Center Plaza
Boston, Massachusetts 021.08

In a decision dated February 6, 1976, the immigration judge found the
respondent deportable as charged, and ordered him deported. The

respondent has appealed from that decision. In his appeal brief, counsel
requests that we remand the record to the immigration judge for consideration of the application of section 212(c) of the Immigration and
Nationality Act to the facts of this case. We shall treat that request as a
motion to reopen the proceedings in order to allow the respondent to
apply for advance permission to return to an unrelinquished domicile
under section 212(c) of the Act. The motion to reopen will be granted
and the record will be remanded to the immigration judge for appropriate proceedings.
The respondent is a 26-year-old married male alien who is a native
and citizen of Greece. He was admitted to the United States as a
permanent resident alien on or about December 26, 1951.
The Order to Show Cause alleged that on February 4, 1974, the
respondent was convicted in Rockingham County Superior Court, State
48

Interim Decision #2537
of New Hampshire, of the possession of marihuana (a controlled drug) in
violation of section 318-B:26 of the New Hampshire Revised Statutes
Annotated. He was charged under section 241(a)(11) of the Immigration
and Nationality Act.
Under section 241(a)(11) of the Act, an alien in the United States is
deportable if, at any time after entry, he has been convicted of a

violation of, or a conspiracy to violate , any law or regulation relating to
the illicit possession of or traffic in narcotic drugs or marihuana.
At his hearing, the respondent through counsel admitted to the facthat on February 4, 1974, the respondent pleaded to and was found
guilty of the crime of unlawful possession of marihuana (in violation of
record of conviction and sentence was "annulled" by a court in New
Hampshire, and, therefore, that conviction cannot be a basis for deportability under section 241(a)(11) of the Act.
Certified copies of respondent's true bill and abstract of conviction,
sentence and order of probation are of record. These documents reveal
that on February 4, 1974 the respondent pleaded to and was found
guilty of the crime of unlawful possession of marijuana (in violation of
section 318-B:26 of the New Hampshire Revised Statutes Annotated).
He was sentenced to the Rocidnghann County House of Correction for
six months; that sentence was suspended. Respondent was placed on
probation for a term of two years. It was noted on the court record that
respondent's offense was disposed of as a misdemeanor. Also of record is
a copy of an order of the Rockingham County Superior Court dated
February 5, 1975, which annulled the respondent's record of conviction
and sentence; and a copy of a document issued by the New Hampshire
Department of Probation on February 5, 1975, which petitioned and
consented to the termination of respondent's period of probation.
Counsel contended at the hearing that in view of the annulment of
respondent's record of conviction and sentence by the State court, the
respondent is no longer subject to deportation under section 241(a)(11)
of the Act.
In cases involving narcotics and marihuana violators not convicted
under the Federal Youth Corrections Act or its state equivalent, we
have limited our inquiry to the issue of whether a conviction existed.
See Matter of Robinson, Interim Decision 2351 (BIA 1975); Matter of

Wong, 12 I. & N. Dec. 721 (BIA 1968); Matter of A

F , 8I. & N. Dec.
429 (BIA, A.G. 1959).
We have consistently found for immigration purposes, that a conviction exists when the following elements are present: (1) there has been a
judicial finding of guilt; (2) the court takes action which removes the
case from the category of those which are (actually or in theory) pending
—

—

for consideration by the court the court orders the defendant fined, or
inc arcerated or the court suspends sentence; (3) the action of the court is
—

49

Interim Decision #2537
considered a conviction by the State for at least some purpose. Matter of
10 I. & N. Dec. 401 (BIA 1963); Matter of L—R—, 8 I. &
N. Dec. 269 (BIA 1959).
Under section 651:5 (Disposition of Certain Records) of the New
Hampshire Revised Statutes Annotated, persons who have been convicted of a crime and who meet specified conditions may apply to the
court in which their original sentence was entered for an order to annul
the record of conviction and sentence. The statute was intended to
reward a person for good behavior following a conviction and to assist in
the rehabilitation of that person. The effect of an annulment order under
New Hampshire law is expressed as follows:
Pikkarainen,

Upon entry of the order, the applicant shall be treated in all respects as if he had never
been convicted and sentenced, except that upon conviction of any crime committed after
the order of annulment has been entered, the prior conviction may be considered by the
court in determining the sentence to be imposed.

The statute further indicates that:
Nothing in this section shall affect any right of the applicant to appeal from his
conviction or sentence or to rely on it in bar of any subsequent proceedings for the same
offcnoc.

The record of conviction reveals that the respondent plead guilty to
and was found guilty of the charge of unlawful possession of marihuana
ha New Hampshire. The trial court imposed a six -month sentence, but

suspended the execution of that sentence and placed the respondent on
probation. It does not appear from the record that respondent appealed
from that decision. It is clear that under New Hampshire law, notwithstanding an existing court order annulling a record of conviction
and sentence, the conviction still stands for various state purposes. Cf.
klatter of Rehman, Interim Decision 2448 (BIA 1975). We therefore
conclude that the post-conviction annulment order did not have the
effect of vacating respondent's conviction. Counsel has not shown that
the respondent is no longer subject to deportation. We are satisfied that
the record of the criminal proceedings brought against the respondent

establishes that he was convicted within the meaning of section
2-41(a)(11) of the Act and that the deportability of the respondent has
b een established by clear, convincing and unequivocal evidence.
We find that the respondent has a record of lawful permanent resid ence dating back to December 26, 1951. His deportability resulted
from a conviction of a marihuana violation. The record shows no evidence
tEnat he departed the United States following his conviction.
Although the respondent did not apply for relief under s ection 212(c)
od the Act at the hearing, he seeks that relief on appeal. In Francis v.
IWS, 522 F_2d 268 (2

Cir_ 1976), the United States Court

oF Appeals for

the Second Circuit concluded that it is a denial of equal protection to
50

interim vecistuli.

4iJC I

preclude aliens who had not departed from the United States from being
granted relief under section 212(c) of the Act, while treating aliens who
had so departed as statutorily eligible for such relief. In Matter of
Silva-Ovalle, Interim Decision 2532 (BIA, September 10, 1976), we
followed Francis v. INS, supra, and withdrew from prior decisions,
taking a contrary position. In Silva-Ovalle, supra, we stated that:
Under the provisions of section 212(c) of the Act, a waiver of the ground of inadmissibility may be granted to a permanent resident alien in a deportation proceeding regardless
of whether he departs the United States following the act or acts which render him
deportable . . .
is our position that no distinction shall be made between permanent resident aliens who temporarily proceed abroad and nondeparting permanent

resident aliens.

In light of the foregoing opinion, we conclude that the hearing in this
matter should be reopened in order to adjudicate the issue of whether
the respondent qualifies for relief under section 212(c) of the Act. The
respondent should be given the opportunity to file an Application for
Advance Permission to Return to Unrelinquished Domicile (Form
1-191). Accordingly, we shall grant respondent's motion to reopen the
proceedings and remand the record to the immigration judge for further
proceedings consistent with the above opinion.

ORDER: The motion to reopen the proceedings is granted.
FURTHER ORDER: The record is remanded to the immigration
judge for further proceedings consistent with the foregoing opinion. If
discretionary relief is granted by the immigration judge, the outstanding order of deportation shall be withdrawn.

51


Interim Decision *1670

MASTER

or Romer=

In Section 245 Proceedings
A-12389347
Decided by Regional Commissioner October 17, 1966
A native and citizen of Spain and permanent resident of Cima-who, following
admission to the United States as a nonimmigrant visitor in 1960, was
granted indefinite voluntary departure; who, because of her political beliefs
and unwillingness to live under the Communist regime of Cuba, left that
country and does not wish to return there; and'who has been continuously
physically present in the United States for more than two years prior to
her application for adjustment of status, is accorded refugee clusatfication
under the proviso to section 269(a),(7), Immigration -laid Nationality Act,
as amended, and, being otherwise eligible, her application for adjustment
of status to that of 9. permanent resident pursuant to section 240 of the Act.
Is granted.
•

This matter is before the Regional Commissioner on certification
by the District Director at New York who denied the application
for adjustment of status under section 245 of the Immigration and
Nationality Act, as amended. It was found that the - alien is ineligible for classification as a refugee undei the proviso to section 203
(a) (7) of the Act and that an immigrant visa is not immediately
available to her under the nonpreference portion of the quota for
Spain to which she is otherwise chargeable.
The applicant is an unmarried Spanish citizen, born July 28, 1934
at Tinco, Oveido, Spain. She left Spain for Cuba ,on December 6,
1953 and, on April 19, 1955, was granted permanent residence in
the latter country. She was admitted to the United States at Miami,
Florida on December 4, 1960 as a noniminigrant visitor for pleasure
until March 4, 1961 and subsequently received extensions .of her,
temporary stay until August 1, 1962. She was granted indefinite
voluntary departure on June 7, 1966 when she appeared at the New
York office of this Service to -request political asylum based on her
residence in Cuba since 1953 and fear of returning to that country.
On August 2, 1966, in conjunction with her application for status
as permanent resident filed on June 29, 1966, the alien applied for
901

Interim Decision #1670
classification as a refugee under the proviso to section. .203(a) (7) of

the Immigration and Nationality Act. She stated that she left Cuba
because she did not want to live under the Comiaunist regime and,
inasmuch as the same government was in power, she does not wish
to return there. Her request for refugee status was disapproved on.
August 4, 1966 when it was determined that the applicant is single;
that her parents, who are natives and citizens of Spain, currently
reside in that country; that there is no evidence the alien cannot
resume her residence in Spain, the country of her birth and citizenship.
Section 203(a) (7) of -the Immigration and Nationality Act provides, in part, as follows:

Conditional entries shall next be made available -by the Attorney General,
pursuant to such regulations as he may prescribe and in a number not to
exceed a Per centem of the number specified in section 201(a) (ii). to aliens
who satisfy an Immigration and Naturalization Service officer at an examination in any non-Communist or non-Communist dominated country, (A) that
(I) because of persecution or fear of persecution on account of race, religion
or political opinion they have fled (I) from any Communist or Communistdominated country or area, or (II) from any country within the general area
of the Middle East, and (ii) are unable or unwilling to return to such country
or area on account of race, religion, or political opinion, and (iii) are not
nationals of the countries or the areas in which their application for conditional entry is made . . . . Provided, That immignult visas in a number not
exceeding one-half the number specified in this paragraph may be made available, in lieu of conditional entries Of a like number, to such aliens who have
been continuously physically present in the United States for a period of
.at least two years leas to application for adjustment of status.

In the matter at hand, we find that the District Director has
imposed a condition precedent to the grant of refugee classification
which is neither provided for nor contemplated by the statute. The
ability of the applicant to return to the country of her birth and/or
nationality, or to some other foreign country, is of no consequence
provided, of course, the alien fits the statutory description. of refugee
set forth in section 203(a) (7), supra. It was the intent of Congress
to resettle such person in the United States in accordance with immigration policy since the close of World War II (House Committee
on the Judiciary, Report No. 745, dated August 6, 1965, and Senate
Committee on the Judiciary, Report No. 748, dated September 15,
1965).
The record substantiates that the applicant herein has fled. from
"Cuba, a Communist nation, and is unwilling to return there because
of her political beliefs. It is noted in this connection that she was
granted indefinite voluntary' departure by this Service upon her
request - for political asylum.. She, has been physically present in the
'902 '

Interim Decision # 1670
United States continuously since December 4, 1960 and satisfies the
prerequisites for classification as a refugee under section 203(a) (7)
of the Act. We further find that her eligibility for the benefits of
section 245 has been established- Accordingly, the following order
will be entered.
It is ordered that the applications for classification as a refugee
under the proviso to section 203(a) (7) of the Immigration and
Nationality Act; as amended, and for adjustment of status to permsnent resident under section 245 of the Immigration and Nationality
Act, be and the same are hereby granted.

. 903


Interim Decision *1872

MATITA{ OF WU
In Visa. Petition Proceedings
A-17118329
Decided by District Director January 29, 1968
The qualified beneficiary of a visa petition filed by a non-profit community organization desiring his services as a medical doctor is accorded preference classification under section 203(a) (6) of the Immigration and Nationality Act, as
amended, as a physician, since the petitioning organization, even though it
will not be paying beneficiary a salary, desires "to employ" him within the
meaning of section 204 of the Act.

Discussion: The petitioner, Darlington Hospital Guild, Darrington, Washington, is anon-profit community organization, incorporated
in 1958 under the laws of the State of Washington. The Guild is governed by a president, vice president, secretary, treasurer, and three
trustees. The organization was chartered to recruit a medical doctor to
serve the community of 3,500 persons. The first medical doctor practiced a short time before leaving the community. The charter was then
amended to provide for the recruiting of additional doctors whenever
need arose.
At the present time there is no medical doctor in the community. All
attempts to recruit a medical doctor have been unsuccessful. The petitioner has established that advertisements were placed in medical journals, inquiries were directed to medical schools, and the Sears Foundation was contacted without success.
The community is 27 miles, by rough mountain roads, from the
nearest community having medical doctors and a hospital. In the
winter months the area is sometimes covered by as much as six feet of
snow, making travel to the nearest doctor or hospital a dangerous and
sometimes impossible undertaking.
The principle industry in the area is logging, a hazardous occupation.
Serious accidents occur all too often in this work and immediate medi• cal care frequently means the difference between life and death. In the
summer months, the area is a mecca for tourists and campers and medical care is often required in emergencies as a result of automobile and
other accidents. The community plainly has an urgent need for the
services of a medical doctor.

762

Interim .vecision
Following incorporation, the petitioning agency secured a $50,000
mortgage and constructed a. modern medical facility for use by medical
doctors agreeing to serve the area. The mortgage is now $28,000. Funds
to retire the mortgage and to pay other Guild expenses are received
from community wide fund raising events.
Section 204, Immigration and Nationality Act, as amended, reads as
follows :
. . . or any person desiring and intending to employ within the United States
-

an alien entitled to classification as a preference immigrant under section 203
(a) (6), may file a petition with the Attorney General for such classification.

The phrase "any person desiring and intending to employ within the
United States", must be interpreted.
The petitioner has stated beneficiary will not be paid a salary by the
Guild. Patients will pay the beneficiary directly for services rendered.
The prior medical doctor grossed $36,000 annually and was employed
full-time.
A. determination must be made whether "employment" as contemplated by section 204 of the Act exists in this case. There are no pre-

cedent decisions analogous to this situation since amendment of the
Immigration and Nationality Act. However, in the Matter of Young,
Int. Dec. No. 1425, In Visa Petition Proceedings, decided Stepember 8,
1964, it was held that under the prior statute, the village of DeWitt,
Michigan, was an eligible petitioner for the services of a dentist. Under
the prior, statute (section 203 (a) (1) of the Immigration and Nationality Act) the clause "desiring and intending to employ" did not appear. It was necessary, however, to establish "an urgent need" for the
services of the beneficiary. The Matter of roam, (supra) established
that a non profit community organization may petition under the Im-

migration and Nationality Act.
Webster's New Collegiate Dictionary defines "employ" as meaning:
To make use of; to use; to make use of the services of; to occupy; devote; as,
to employ time in study:
Employ, hire here means to engage for work Employ, however, stresses the use
of a person's services; hire the act of engaging a person's services for
compensation.

The Darrington Hospital Guild desires to make use of the services
of the beneficiary as outlined in the definition of "employ" appearing
in Webster's New Collegiate Dictionary. No mention is made in the
dictionary or in section 204 of the Act as to the source or amount of
remuneration. The requirements of section 204 of the Immigration and
Nationality Act, as amended, have been satisfied.
Section 203(a) (6) of the Act, reads in part as follows:
Visas shall next be made available. In a number not to exceed 10% ... to qualified immigrants who are capable of performing specified skilled or unskilled labor,
821-054-89--50

763

Interim Decision #1872
not of a temporary or seasonal nature, for which a shortage of employable and
willing persons exists in the United States.

The beneficiary meets the qualifications set forth in section 203 (a)
(6) of the Act and on Form 1-140, Petition to Classify Preference
Status of Alien on Basis of Profession or Occupation. The beneficiary
received a doctor of medicine degree in June 1928 from University of
Virginia, Charlottesville, Virginia. He received specialized training
in surgery from 1941 to 1945 at Mayo Foundation, Rochester, Minnesota, and attended the University of Pennsylvania from 1956 to 1957
where he received training in the internal medicine field. He also attended Harvard Medical School for nine months during 1957- 1958, for
specialized courses in cardiovascular disease treatment. He has been
licensed to practice as a medical doctor in Taiwan.
The petitioner has established that the beneficiary is a skilled por
son, coming to the United States to fill a position not of a temporary or

seasonal nature, and that there is a shortage of such qualified persons
in this country. Therefore, the requirements of section 203 (a) (6) of
the Immigration and Nationality Act, as amended, have been satisfied.
The beneficiary qualifies under the blanket labor certification issued
by the Department of Labor in Group I, Schedule A, 29 CFR, Part
60, as a person having an advanced degree. The beneficiary, therefore,
meets the requirements of section 212 (a) (14) of the Act.
The evidence clearly establishes that the petitioning agency has
complied with all the requirements of section 203(a) (6) and section
204 of the Immigration and Nationality Act, as amended. It has been
further established that the beneficiary has the necessary qualifications
to fill the position. The petition, will, therefore, be approved.
ORDER: Ifis ordered that the petition be and the same is hereby

approved.

764


Interim Decision #2908

MATTER OF ROUSSIS
In Deportation Proceedings
A-21401985
Decided by the Board June 30, 1982
The immigration judge's decision granting the respondent's motion to remand his adjustment of status application to the District Director for adjudication is in clear derogation of the carefully defined jurisdictional scheme set out in the Code of Federal Regulations pertaining to section 245 relief and impermissibly impinges upon the District Director's
prosecutorial discretion.
CHARGE:

•

Order: lot of 1952—Soo. 241(a)(2) [9 U.S.C. 1251(a)(2)] Nonimmigrant

atudent-

remained longer than permitted
ON BEHALF OF RESPONDENT:
Pro se

ON BEHALF OF SERVICE:
Gerald S. Hurwitz
Appellate Trial Attorney

BY: Milhollan, Chairman; Maniatis, Dunne, Morris and Vaeca, Board Members

In a decision dated February 1, 1982, an immigration judge granted
the respondent's motion to reopen his deportation proceedings and to
remand his case to the District Director for consideration of his application for adjustment of status under section 245 of the Immigration and
Nationality Act, 8 U.S.C. 1255. She then certified her decision to the
Board for review pursuant to 8 C_F.R. 3.1(e) and 8 C.F.R. 242.8(a). The
immigration judge's decision will be reversed.
The respondent, a 30-year-old native and citizen of Greece, was admitted to the United States on October 27, 1972, as a nonimmigrant
student, authorized to remain until October 26, 1976. In deportation
proceedings conducted on July 6, 1977, the respondent was found deportable as an overstay under.section 241(a)(2) of the Act, 8 U. S. C. 1251(a)(2),

but was granted the privilege of voluntary departure in lieu of deportation.
On February 1, 1982, the immigration judge ordered the deportation
proceedings reopened on the basis of an immediate relative visa petition
which had been filed on the respondent's behalf by his United States
citizen spouse} Over the objection of the Immigration and NaturnlizaThe respondent had already filed an earlier motion to reopen on August 27, 1977, in

256

Interim Decision #2908
tion Service, she further ordered that the case be remanded to the
District Director for adjudication of the respondent's adjustment
application. She then certified her decision to us for review.
The precise issue presented is whether an immigration judge is authorized to remand a ease involving a section 245 application to the District
Director for adjudication notwithstanding the fact that an Order to
Show. Cause has been issued, deportation proceedings have begun, and
the District Director objects to the remand order.
The immigration judge concluded that an order of remand to permit
consideration by the District Director of an adjustment application,
coupled with an order of conditional termination of the deportation
proceedings; is a permissible exercise other authority. Such procedure,
she submits, promotes efficiency and the savings of resources for the
District, the Immigration Court, the aliens and their representatives
and, at the same time, does not contravene the applicable regulations.
Moreover, she contends that "to deny to an alien the ability to move for a
remand [a procedure available to the Service in certain circumstances
pursuant to 8 C. F. R. 242.7] would unfairly favor the Service. . . ."
The Immigration and Naturalization Service opposes the remand,
arguing that the immigration judge's unilateral decision to remand not
only violates the regulations but impinges upon the District Director's
prosecutorial discretion.

For resolution of this question, reference must be made to provisions
within the Code of Federal Regulations. The pattern set out in the code
to govern the adjudication of applications for adjustment of status is
quite clear. Pursuant to 8 C.F.R. 245.2(a)(1), "after an alien has been
served with ari Order to Show Cause or warrant of arrest, his application
for adjustment of status under section 245

of the Act shall be made and

considered only in proceedings under Part 242 of this Chapter."' It is
evident then that the immigration judge is charged by regulation, which
has the force of law, with the responsibility of accepting and adjudicating an application for section 245 relief if that application is submitted by
an alien in deportation proceedings.
The immigration judge acknowledges that 8 C.F.R. 245.2(a)(1) vests
the immigration judge with exclusive jurisdiction to entertain adjustment applications, once an Order to Show Cause has been issued. It is
her position; however, that nothing prevents the immigration judge
from "ceding" that jurisdiction when practical and equitable considerations dictate. Thus, under the immigration judge's theory, the District
Director could be forced to assume jurisdiction over a pending adjustment application simply because an immigration judge chooses to relinadjustment application based upon a sixth preference petition.This motion was still pending when the immediate relative petition was
substituted.
Section 242 governs the institution, conduct, and resolution of deportation proceedings.
which ha requested consideration of an

257

Interim Decision #2908
quish it. We do not believe that an issue as fundamental as jurisdiction is
subject to act hoc resolution, especially given the explicit mandate of the
regulation in question.

Further, we agree with the Immigration and Naturalization Service
that a sua spouts remand by an immigration judge impinges upon the
District Director's exclusive authority to control the prosecution of
deportable aliens. It has long been held that when enforcement officials

of the Immigration and Naturalization Service choose to initiate proceedings against an alien and to prosecute those proceedings to a conclusion,
the immigration judge is obligated to order deportation if the evidence
supports a finding of deportability on the ground charged. Integral to a

determination of whether an alien, although indisputably deportable, is
to be ordered deported is whether or not he is eligible for any form of
relief from deportation. See 8 .C.F.R. 242.17. See Lopez-Telles v. INS,

564 F.2d 1302 (9 Cir. 1977); Guan Chow Tok v. INS, 538 F.2d 36 (2 Cir.
1976); Matter of Merced, 14 I&N Dec. 644 (BIA 1974); Matter of
Geronitrw, 13 I&N Dec. 680 (BIA 1971). See also Matter of Chamizo, 13
16c14 Dec. 435 (BIA 1969).

Aside from 8 C.F.R. 242.7, which authorized the District Director, in
certain specified instances, to cancel an Order to Show Cause and thereby
terminate proceedings prior to their commencement or to request dismissal or remand of a case after proceedings have begun, there is no
provision in the regulations which authorizes the termination, whether
conditional or final, of deportation proceedings. On the contrary, the
regulations emphatically require the prompt completion of the deportation hearing if no action to terminate or remand is taken by the District
Director. See 8 C.F.R. 242.7.
In conclusion, we find that the immigration judge's decision togrant
the respondent's motion to remand and thereby conditionally divest
herself of jurisdiction over his adjustment application is in clear derogation of the carefully defined jurisdictional schemeset out in the regulations pertaining to section 245. Further, the immigration judge's concern that an alien must be allowed to move fora remand of his adjustment
application if the Service and the alien are to stand before her as equals
is misplaced. While an alien is given the right to submit an application
for relief under section 245, no authority of which we are aware suggests that he also has the right to dictate the procedures whereby his

application is adjudicated.
Finally, we have noted the immigration judge's commendable interest
in improving the efficiency of existing adjudicatory procedures. However,
the fact remains that the suggested improvements are at variance with
the applicable regulations. Thus, in the absence of regulatory amendment,
we cannot sanction the inucedures followed below.

ORDER: The decision of the immigration judge is reversed.
258


Interim Decision #2491

MATTER OF

PATEL

In Bond Proceedings
A-20284161
Decided by Board May 7, 176
(1) Generally, an alien is not and should not be detained or required to post bond except on
a finding that he is a threat to the national security, or that he is a poor bail risk.
(2) Where it appealed from the record that respondent was living with his wife and
United States citizen child, had worked for the same employer for almost two years and
had kept the immigration and Naturalization Service informed of his address changes;
and that respondent had never been arrested or convicted of any crime and had never
been involved with narcotics or involved in any subversive or immoral activities, there
was no reason to justify holding respondent under even a minimal bond, and respondent
was ordered released from custody of his own recognizance.
ON BEHALF OF RESPONDENT:

Samuel D.

Myers, Esquire

Freedman, Freedman & Myers, Ltd.

Suite 2812
230 West Monroe Street
Chicago, Illinois 60606

The respondent appeals from the February 18, 1976 decision of the
immigration judge in which he granted a reduction in bond from the

$1,000 set by the district director to $500. The appeal will be sustained.
The statute provides that, pending a determination of deportability,
an alien may, upon warrant of the Attorney General, be arrested and
taken into custody. Such alien may then, in the discretion of the Attorney General ; be continued in custody, released under not less than
$500 bond, ar released on conditional parole. Section 242(a), Immigration and Nationality Act. The Attorney General's authority in this
regard is delegated to certain designated officials by regulation. 8 CFR
242.2(a).
An alien generally is not and should not be detained or required to
post bond except on a finding that he is a threat to the national security,
Carlson v. Landon, 342 U.S. 524 (1952), or that he is a poor bail risk,
Matter of Moise, 12 I. & N. Dec. 102 (BIA 1967); Matter of S—Y—L—,
9 I. & N. Dec. 575 (BIA 1962).
It is not clear from the record why the respondent was arrested. The
factors which the immigration judge considers to be adverse and which
666

Interim Decision #2491
in his judgment militate in favor of requiring a bond are that the
respondent overstayed his student visa and that the visa petition of
which he is the beneficiary was denied because he lacked a labor certification. These factors bear little if any relevance to the issue of whether
or not the respondent is likely to appear for his deportation proceeding.
Such a broad interpretation of what constitutes an "adverse factor" in
this context could result in requiring a bond of almost every alien who is
held in deportation proceedings.
In the respondent's favor, it appears from the record that he has

never been arrested or convicted of any crime, involved in any subversive or immoral activities, or involved with narcotics. He is living with
his wife and United States citizen child, and has been working for the
same employer for almost two years; the respondent has kept the
Immigration and Naturalization Service informed of his address
changes. With regard to the denial of a labor certification, he has filed a
suit in federal court.
It appears to us that no reasons have been given to justify holding the
respondent under even a minimal bond. Consequently, we shall sustain
the appeal and enter the following order.
ORDER: The appeal is sustained, and the respondent shall be released from custody on his own recognizance.

667


Interim Decision #2640

MATTER OF RAFEPOUR

In Deportation Proceedings
A-21017491

Decided by Board March 13, 1978
Despite respondent's conviction under 8 U.S.C. 1306(c) (filing application for alien registration containing statements known by him to be false) a deportable offense under
section 241(a)(5), he is not excludable and, therefore, not ineligible for adjustment of
status. Matter of R—G--, 8 I. & N. Dec. 128 (BIA 1958) reaffirmed. See also Matter of
Sanchez, Interim Decision 2617 (BIA 1977).
CHARGE:
Orden Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))--Noninunigrant student—
remained longer than permitted
ON BEHALF OF SERVICE:
Sabri Randall. Acting
Appellate Trial
Attorney

ON BEHALF OF RESPONDENT:
Donald L.. Ungar, Esquire

Phelan, Simmons & Ungar
517 Washington Street
San Francisco, California 94111

Brian B. Simpson
Trial Attorney
Milhollan, Chairman; Wilson, Maniatis, and Appleman , Board Members. Board
Member Maguire dissenting.

The Service appeals from the decision of an immigration judge, dated
September 24, 1976, in which he granted the respondent's application
for adjustment of status. The appeal will be dismissed.
The record relates to a 26-year-old native and citizen of Iran who
entered the United States as a nonimmigrant student on January 2,
1970, authorized to remain until June 8, 1973. On April 14, 1975, the
respondent was found deportable as charged, but he was granted the

privilege of voluntary departure until October 14, 1975. No append
followed from that decision, but the respondent did move to reopen the
proceedings in order to apply for permanent resident status. On Marcli
11), 1976, the immigration judge granted the motion to reopen and on
September 24, 1976, he granted the respondent's application for adjustment of status. The only issue before us on appeal is the respondent's

470

Interim Decision #2640
eligibility for adjustment of status under section 245 of the Immigration
and Nationality Act.
The Service argues that the respondent is ineligible for section 245
relief because he was convicted on March 25, 1975, of a violation of 8
U.S.C. 1306(c) (filing an application for an alien registration with the
Service containing statements known by him to be false) and, therefore,
he would immediately become deportable under section 241(a)(5) of the
Act if granted permanent resident status. The immigration judge, however, found the respondent eligible for adjustment of status because in
accordance with Matter of R — G— , 8 I. & N. Dec. 128 (BIA 1958), an
alien would not be deportable under section 241(a)(5) following his
lawful admission for permanent resident.
We have recently reaffirmed Matter of R—(—, supra, in Matter of
Sanchez, Interim Decision 2617 MIA 1977). In Matter of Sanchez, supra,
we held that an alien previously deported under any section of the Act is
not forever barred from entering the United States, if the proper waivers
are obtained, simply because of the conduct which would have rendered
him deportable under section 241(a)(5) prior to his deportation. Although
the respondent in the case before us was never previously deported, his
situation even more closely resembles that in/trotter of R — G— , supra.
Matter of R — G--- was an exclusion proceeding-, wherein the applicant
was ordered admitted despite an earlier conviction for violation of one of
the statutes listed in section 241(a)(&) as giving rise to a ground of
deportability. In the respondent's case before us, the acts giving rise to
the conviction for deportable offense under section 241(a)(5) were committed before he either applied for permanent resident status or was
found deportable on other grounds.
In view of the fact that an alien applying for adjustment of status is
assimilated to an alien applying for adjustment of status for adjustment
of status is assimiliated to an alien seeking admission-into the United
States, at least insofar as he must not "otherwise be excludable," we see
no reason for applying a different rule from that described in Matter of
R –G– , supra, and reaffirmed in Matter of Sanchez, supra_

The respondent married a United States citizen on April 10, 1975, and
her visa petition in his behalf was approved on July 7, 1975. Based upon
his conclusion that the marriage was bona fide, and that the respondent was a person of good moral character, the immigration judge
granted him permanent resident status in the exercise of discretion.
Inasmuch as the immigration judge is given primary responsibility for
judging the credibility of witnesses,' we will not over turn his determination. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
See Matter of Teng, interim DecIsiun 2452 (DIA 1975); Matter of T—, 7 L & N. Dee.
417 (BIA 1957).

471

interim Decision /it2o4u

Mary P. Maguire, Board Member, Concurring in Part and Dissenting in Part

While I agree with the majority insofar as they have concluded that
the respondent is statutorily eligible for adjustment of status pursuant
to section 245 of the Act under the rationale of Matter of Sanchez,
Interim Decision 2617 (BIA 1977), I would sustain the Service appeal
with respect to the immigration judge's favorable exercise of discretion in
granting section 245 relief.
The respondent entered the United States on January 2, 1970, as a
nonimmigrant student, authorized to remain until June 8, 1973. On
March 26, 1974, after his authorized stay had expired, he married a

United States citizen who filed a visa petition on May 24, 1974, to classify
him as an immediate relative. On that same date the respondent filed an
application to adjust his status to that of a lawful permanent resident.
On August 12, 1974, the respondent and his alleged spouse were interviewed under oath by an immigration officer in correction with both the
visa petition filed on behalf of the respondent and the application for
adjustment of status filed by the respondent. During that interview the
respondent testified that he resided with his alleged spouse at the
address shown on the visa petition (Ex. 2).
Subsequent investigation by the Service determined that the respondent had never resided with his alleged citizen spouse at any address

and that he had, in fact, paid her five hundred dollars ($500) to marry
him so that he could adjust his status to that of a lawfully admitted
permanent resident alien on the basis of his relationship to a United
States citizen. As a result of the false statements made in conjunction
with the application for adjustment of status, the respondent was convicted, upon his plea of guilty, on March 25, 1975, in the United States
District Court for the Northern. District of California of violating 8
U.S.C. 1306(c), was placed on probation for a period of six (6) months
and fined one hundred dollars ($1OO). The visa petition and the application for adjustmennt of status were subsequently withdrawn.
Deportation proceedings were instituted against the respondent on
March 7, 1975, by the issuance of an Order to Show Cause. In a decision
dated Apri114, 1975, the immigration judge found the respondent deportable as charged, which the respondent conceded, and granted him the
Privilege of voluntary departure on or before October 14, 1975. The
is emigration judge granted the discretionary relief of voluntary departure on the basis of the respondent's marriage to another United States

c=itizen on April 10, 1975. The respondent had secured a Nevada divorce
om his first wife on April 7, 1975. No appeal was taken from the
iltnmigration judge's order.
On July 7, 1975, the Service approved a visa petition filed on respondent's behalf by his present wife and on July 14, 1976, the respondent
submitted an application for adjustment of status. In an order dated
472

Interim Decision #2640
March 10, 1976, the immigration judge reopened the deportation proceedings to permit the respondent to pursue his application for adjustment of status. After further hearings on August 18, 1976, and on
September 24, 1976, the immigration judge entered an order on the
latter date granting the respondent's application for adjustment of
status. The Service appealed from the decision of the immigration judge

and contended that : (1) the respondent is not eligible for an immigrant
visa within the meaning of section 245 because he would be deportable
upon admission under section 241(a)(5), 8 U.S.C. 1251(a)(5): and (2) the
immigration judge erred in granting discretionary relief under section
245. I concur with the majority insofar as they have concluded that the
respondent is eligible for an immigrant visa under the rationale of
Matter of Sanchez, supra.
However, I would sustain the Service appeal from the immigration
judge's favorable exercise of discretion with respect to the respondent's
application for adjustment of status. The respondent was admitted to
the United States as a student on January 2, 1970, and his authorized
stay expired on June 8, 1973. He concededly entered into a "sham"
marriage with a United States citizen in order to obtain an immigration
benefit. He made false statements to a Service officer with respect to
the bona fides of his marriage in an interview of his application for
adjustment of status. After his conviction and after the institution of
deportation proceedings agaiiml, him, the respondent secured a divorce
and married another United States citizen.
As pointed out by the Attorney General in Matter of Bias, Interim
Decision 2485 (BIA 1974; A.G. 1976), adjustment of status is not necessarily available on a simple showing of eligibility. The extraordinary
discretionary relief provided in section 245 of the Act can only be
granted in meritorious cases, and the burden is always upon the alien to
establish that his application for that relief merits favorable consideration. Dirie v. INS, 400 F.2d 658 (9 Cir. 1968), cert. denied, 394 U.S.
1015 (1969); Santos v. INS, 375 F.:2c1 262 (9 Cir. 1967); Matter of
Ortiz Prieto, 11 I. & N. Dec. 817 (BIA 1965).
-

A showing of eligibility for adjustment of status which carries with it
its own strong equities, such as immediate relative status, can have a
positive influence on the exercise of discretion and, in the absence of
adverse circumstances, should prevail. Matter of Blas, supra; Matter of
Anti, 13 I. & N. Dec. 494 (BIA 1970).
Thus, although an application for adjustment of status based on
immediate relative status is initially appealing, there may be other
factors present which undercut the quality of the case presented. In
'flatter of Bias, supra, the Attorney General found that, despite the fact

or the respondent's apparently bona Me marriage to a United States
citizen, the fact that he had made misleading responses in seeking his
473

Interim Decision #2640
initial visitor's visa warranted denial of the respondent's section 245
application.
Likewise, this Board and the courts have held that an alien who is
admitted to the United States as a nonimmigrant but who is found to
have had, at the time of entry, a preconceived intent to remain in the
United States permanently, does not merit the favorable exercise of
discretion, despite familial relationships with United States citizens or
lawful permanent residents. See Soo Yuen v. INS, 456 F.2d 1107 (9 Cir.
1.972); Lee v. INS, 446 F.2d 881 (9 Cir. 1971); Ameeriar v. INS, 438 F.2d
1028 (3 Cir.), cert. denied, 404 U.S. 801(1971); Chen v. Foley, 385 F.2d
929 (6 Cir. 1967), cert. denied, 393 U.S. 838 (1968); Matter of FuentesBlanco, 13 I. & N . Dee. 128 (BIA 1968).
In my opinion, the respondent has not established that he merits the
extraordinary relief of adjustment of status. He had admitted entering
into a sham marriage to circumvent the immigration laws of the United
States. He was convicted of violating the immigration laws. His present
marriage was entered into at a time when he was already the subject of
deportation proceedings. I do not think that his present marriage to a
United States citizen is sufficient equity to outweigh the very serious
adverse factors In this case. I would, therefore, reverse the decision 01'
the immigration judge and deny the respondent's application for adjustment of status.

474