Interim Decision #2237

MAIThR OF MURAT-KHAN

In Deportation Proceedings
A-20135179

Decided by Board August 27, .1973
(1) While penal confinement is a significant factor in determining whether a
nonimmigrant's criminal conduct constitutes a violation of nonimmigrant
status within the meaning of section 241(a)(9) of the Immigration and Nationality Act, a likewise significant factor is whether the criminal conduct is
meaningfully disruptive of the purpose for which the nonimmigrant was
admitted.
(2) A nonimmigrant student's conviction for the offense of residing where drug
laws are violated and resultant 20-day incarceration did not constitute a
failure to maintain nonimmigrant status under section 241(a)(9) of the Act

where her criminal conduct did not meaningfully disrupt the pursuit of her
studies (the purpose for which she was admitted), as evidenced by aboveaverage academic work which actually improved following her incarceration.
CHARGE:
Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9))—Failure to comply
with conditions of nonimmigrant status.
ON BEHALF OF SERVICE:
F. Ernest Ayers
Trial Attorney
(Brief filed)

ON BEHALF OF RESPONDENT:
Raul Soto-Seelig, Esquire
1022 Georgia-Pacific Bldg.
Portland, Oregon 97204
(Brief filed)

This is a Service appeal from a decision of an immigration judge

ordering these proceedings terminated. The appeal will be dismissed.
'The respondent is a 20-year-old unmarried female alien, native
and citizen of Pakistan, who entered the United States on or about
September 6, 1971 as a nonimmigrant student authorized to
remain until September 5, 1973. At a hearing before an immigration judge on January 17, 1973, at which she was represented by
present counsel, respondent admitted the truth of the factual
allegations of the order to show cause but denied deportability.
The record indicates that on September 12, 1972 the respondent

was convicted in the ,Mansfield Municipal Court, Mansfield, Ohio
465

Interim Decision #2237
for the offense of residing were drug laws are violated, and was
sentenced to 180 days in jail (Ex. 5). The respondent was incarcerated from September 14, 1972 until October 3, 1972 at which time
the balance of her sentence was suspended (Ex. 3).
At the hearing the immigration judge found that since the
respondent was permitted to resume her studies immediately
upon her release from custody and successfully completed the
school term, there had been no violation of her nonimmigrant
student status. He concluded that our decision in Matter of C , 9
I. & N. Dec. 100 (BIA 1960); compelled termination of the proceedings. On this appeal the Service urges that Matter of C , supra,
should not apply and that Matter of A , 6 I. & N. Dec. 762 (BIA
1955), requires a finding of deportability. We reject the trial
attorney's argument and hold that the proceedings were properly
terminated.
Matter of C , supra, involved a nonimmigrant student -Who was
convicted for disorderly conduct but not incarcerated. The basis
for our finding that his student status had not been violated was
the fact that he was able to continue his school attendance
without interruption notwithstanding his offense. We adjudged
that since his education had not been meaningfully disrupted, he
had not abandoned his pursuit of the purpose for which he was
admitted to the United States. Matter of A , supra, involved a
nonimmigrant visitor who was convicted and imprisoned for disorderly conduct. We found his incarceration to be inconsistent with
the purpose of his admission, namely, to pursue pleasure, and in
violation of his nonimmigrant status within the meaning of section
241(a)(9) of the Immigration and Nationality Act.
It is clear from these cases that the focus of our inquiry was on
the purpose for which the nonimmigrant was admitted, and not
merely on the presence or absence of penal confinement. In the
present case the respondent was admitted in order to study and
the evidence indicates that her criminal conduct has in no way
interfered with or compromised that purpose. Her major academic
advisor states that her work has been "above average" and "very
satisfactory" (Ex. 7), and the record reflects that the respondent's
grades actually improved during the term for which she registered
late as a result of her incarceration (Ex. 6).
We therefore conclude that the respondent's conduct has not
constituted a failure to maintian the nonimmigrant status in
which she was admitted. The decision of the immigration judge to
terminate was correct and it will be affirmed. The following order
will be entered.
ORDER: The appeal is dismissed.
—

—

—

—

—

466


Interim Decision #2436

MATTER OF STAPLETON

In Deportation Proceedings
A-20411922

Decided by Board September 30, 1975
(1) In the absence of exceptional circumstances, a challenge in deportation proceedings to
the voluntariness of an admission or confession will not be entertained when first made on
appeal.
(2) Where a Service investigator testified at the deportation hearing that respondent,
during an interview, admitted unauthorized employment, counsel's contention, first raised
on appeal, that respondent's admission was coerced, is rejected, since there is nothing in
the record which suggests that the admission was in any way the product of coercion;
counsel for respondent did not object to the testimony of the investigator at the time of the
hearing, and no evidence in support of the claim of coercion has been submitted on appeal.
(3) Counsel's contention that hearsay evidence was improperly considered by the immigration judge in rendering his decision, is rejected where the record indicates that the
heamay testimony was first elicited from a Service investigator upon cross-examination
by counsel, and counsel yoked no objection to its introduction et that time In any event.
hearsay evidence is admissible in deportation proceedings.
CHARGE:
Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9)]—Failed to comply with
conditions of nonimmigrnat status.
ON BEHALF OF RESPONDENT: Sharon L. Nolan, Esquire
#4. Nye Cade
St. Thomas, Virgin Islands 00801

In a decision dated March 12, 1975, the 'immigration judge found the
respondent deportable, but granted the respondent's application for
voluntary departure. The respondent has appealed from the finding of
deportability_ The appeal will be dismissed.
The respondent is a native of St. Kitts and a citizen of the United
Kingdom who entered the United States in November of 1973 as a
nonimmigrant temporary worker. The Service contends that he is deportable under section 241(a)(9) of the Immigration and Nationality Act
as an alien who has failed to comply with the conditions of his nonimmigrant status by accepting unauthorized employment.
At the hearing, the respondent denied the factual allegation in the
order to show cause' relating to the alleged unauthorized employment.
469

Interim Decision #2486
The Service thereupon called one of its criminal investigators as a
witness. The Service investigator testified that he had interviewed the
respondent at which time the respondent admitted the alleged unauthorized employment.
The respondent does not deny that he made such an admission to the
Service investigator, nor has he produced any evidence challenging the
truth of the statements made in that admission. On appeal, however,
counsel for the respondent alleges that the respondent's admission was
coerced, and evidently argues that it should have been excluded from
consideration by the immigration judge.
We reject counsel's contention. There is nothing in the reocrd which
suggests tha; the respondent's admission was in any way the product of
coercion. Counsel for the respondent did not object to the testimony of
the Service investigator at the time of the hearing, and no evidence in
support of the coercion claim has been submitted on appeal. In the
absence of exceptional circumstances, a challenge to the voluntariness of
an admission or confession will not be entertained when first made on
appeal. Cf. United States v. Irby, 480 F.2d 1101 (C.A. 8, 1973); U.S. ex
rel. Lewis v. Pate, 445 F.2d 506 (C.A. 7, 1971); La Brasca v. Misterly,
423 F.2d 708 (C.A. 9, 1970), cert. denied, 400 U.S. 838 (1970); Garrison
v. Patterson. 405 F.2d 696 (C.A. 10, 1969), cert. denied, 404 U.S. 880
(1971); United States v. Frazier, 385 F.2d 901 (C.A. 6, 1967); Evans v.
United States, 377 F.2d 535 (C.A. 5, 1967); Williams v. Anderson, 862

F.2d 1011 (C.A. 3, 1966), cert. denied, 385 U.S. 988 (1966).
Counsel presents several other due process challenges to the hearing
below, which are equally without merit. The transcript of the hearing
may be incomplete because of recording problems; counsel, however,
has failed to demonstrate any resulting prejudice to the respondent, and
we are satisfied that none exists. The record also fails to support
counsel's allegation that the immigration judge was biased against the

respondent. Finally, we reject counsel's contention that hearsay evidence was improperly employed by the immigration judge in rendering
his decision. The record indicates that the hearsay testimony was first
elicited from the Service investigator upon cross-examination by counsel for the respondent. Counsel voiced no objection to its introduction at
that time, and in any event, hearsay is admissible in deportation proceedings. See U.S. ex rel. Vajtauer v. Commissioner of Immigration,
273 U.S. 103 (1927); U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149
(1923); U.S. ex rel. Impastato v. O'Rourke, 211 F.2d 609 (C.A. 8, 1954),
cert. denied, 348 U.S. 827 (1954); de Hernandez v. INS, 498 F.2d 919
(C.A. 9, 1974); Solis-Davila v. INS, 456 F.2d 424 (C.A. 5, 1972); Matter
of Ponco, 15 I. & N. Dec. 120 (BIA 1974).
The decision of the immigration judge was correct. Deportability has
been established by clear, convincing and unequivocal evidence.
470

Interim Decision #2436
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the re-

spondent is permitted to depart from the United States voluntarily
within 31 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

471


Interim Decision #1367

MATTER OF PAPARO

In SECTION 223 Proceedings
A-13308317
Decided by Acting Regional Commissioner May 1,1964
An application for a permit to reenter the United States under section 223,
Immigration and Nationality Act, must be submitted prior to the applicant's
departure from this country.

The application was denied by the District Director, Miami, Florida
on March 26, 1964. It is now considered on appeal.
In denying the application, the District Director gave the following
reasons:
You are statutorily ineligible to apply for a reentry permit in that section 223
provides that an applicant for a Permit to Reenter the United States must execute
and submit his application for such permit prior to his proposed departure from
the United States.

The applicant is a 54-year-old male, a native and citizen of Italy
He was lawfully admitted to the United States for permanent residence
at New York City on April 3, 1963. Subsequent to his admission, he
returned to Italy and on February 28, 1964, the subject application
was received by the District Director, Miami, Florida.
Section 223 of the Act provides that any alien lawfully admitted
for permanent residence "who intends" to depart temporarily may
make application for a permit to reenter the United States. The instructions which are contained on Form I-131, Application for Permit
to Reenter the United States , state in part, under item 3, that "The
application must be submitted you are in the United States . . ."
Section 103.2, Title 8, Code of Federal Regulations provides that the
instructions contained on an application are "incorporated into the
particular section of the regulation requiring its submission", while
section 223.1 of those regulations requires an application for a reentry
permit to be submitted on Form 1-131. It is clear from the language
of the statute and the relating regulations that ari application filed
after the applicant has departed from the United States has not been
properly submitted. In the instant case the application was submitted
649

Interim Decision #1367
after the alien had departed since it was subscribed and sworn to on
February 20,1964 in Naples, Italy.
Under the circumstances, the District Director had no alternative
but to deny the application as the applicant is by statute and regulation ineligible to receive a reentry permit. Accordingly, the decision
of the District Director will be affirmed, and the appeal dismissed.
ORDER: The decision of the District Director, Miami, Florida is

affirmed, and the appeal of the appellant is dismissed.

650


MATTER OF K—B

W—

In DEPORTATION Proceedings
A-11967768
Decided by Board April 11, 1962
Presumption of lawful admissicin for permanent residenceAdoptive child.

8 CFR 101.1(j)(1)—

The alleged adoptive child of a United States citizen who is not within definition contained in section 101(b) (1) (E) of the 1952 Act, because not legally
adopted under the law of his residence (China), or of his alleged adoptive
father's residence (California), cannot qualify for presumption of lawful
admission for permanent residence under 8 CFR 101.1(j) (1).
CHARGES:
Order : Act of 1952—Section 241(a) (2) [8 U.S.C., 1251 (a) (2) ]—Entered
without inspection.
Lodged: Act of 1932—Sectiou 241 (a ) (1) [8 U.S.C. 1251(a (1) ]—Esclud-

able at time of entry,

no immigrant visa.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the special inquiry officer dated December 20, 1961, ordering respondent deported on the charges set forth above.
The order of the special inquiry officer contains a full discussion
of the case. The record relates to a native and citizen of China
who was born on May 3, 1935, under the name of W—, K—B—,
the natural son of W—, Y—S— and D—S—, natives and citizens
of China who have never resided in the United States. About the
year 1944, when the respondent was 9 years of age., he was given by
his parents to the family of W—, T—S—, a United States citizen,
who however was not at that time in China. He resided with W—'s
wife, Y—S—, and an aunt. The wife did not tell her husband about
the adoption until after the war, in about 1945. The respondent's
immigration mother has testified both that the respondent began to
reside with her approximately in 1943 and when he was 9 years old.
The respondent has testified that he was given to the W— family
when he was ahmit 9, during the war. The immigration father
has testified that although he did not know exactly, his son was
about 11 or 12 when he came into his family. In connection with
610

an affidavit executed for the purpose of identifying the respondent
as a citizen of the United States and to facilitate ''his travel to the
United States as a eitizeri, the immigration father made a sworn
statement on May 20, 1047, before a notary public that the respondent was the issue of his marriage to Y—M—Q-- or Y S , was
born on CR 23-11-29 (January 4, 1935), and in connection with
testimony he gave at the time of the respondent's application for
admission as fi citizen on September 8, 1947, he named the respondent as his son, horn CR 23-11-29 (January 4, 1935), and replied in
the negative to the specific question concerning whether he had
ever adopted a son or a daughter.
Respondent has admitted through counsel that he is not a citizen
or national of the United States; that he is a native and citizen
of China; that he last entered the United States at Los Angeles,
California, on or about February 2; 1957; and that he was then
admitted upon his false claim to United States citizenship upon
presentation of a United States passport.
The respondent was first admitted to the United States on September 8, 1947, at the port of San Francisco, California, as a United
States citizen under the provisions of Public Law 271 (Act of
December 28. 1945), accompanied by his immigration mother,
and his immigration brother, W, Y—T—. Consul contends that proceedings should be terminated, arguing that the respondent is comprehended within the provisions of 8 CFR 101.1
(j) (1). This regulation provides that for a presumption of lawful
admission for permanent residence in the case of :
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
golfing min:LL5:,sion ; he was otherwise udrui.osible

at the time of entry ex -

cept for failure to meet visa or passport requirements; and he has maintained
a residence in the United States since the date of admission. For the purposes of the foregoing, the terms "child" and "parent" shall be defined as in
section 101(b) of the Immigration and Nationality Act, as amended.

In order to qualify as a child the respondent must meet the definition set forth in section 101(b) (1) (E) of the Act, as amended, which
provide ° that the child shall have been adopted while under the age
of 14 years if the child has thereafter been in the legal custody of,
and has resided with, the adopting parent or parents for at least
two years. Conceding that the respondent otherwise qualifies, 1 the
question remains to be decided whether the respondent was legally
adopted pursuant to the prevailing law in China. Article 1079 of the
1

if-otter

9

176.

011

Chinese Civil Code promulgated May 28, 1929, states that adoption
shall be effected in writing, unless the person to be adopted has
been brought up as a child of the adopting parents since infancy.
The term "infancy" in this article has been construed to mean a child
not more than seven years of age. 2 There is no evidence to establish
a valid adoption under the laws of California where the immigration

father resided.
Inasmuch as a valid adoption has not been established, the record
fails to establish that the respondent was a child of a United States
citizen at the time of his original admission in 1947 or at any time
thereafter and he cannot qualify under the provisions of 8 CFR 101.1
(j) (1).3 Nor is respondent eligible for a -waiver of documents in
connection with his last entry on February 3, 1957, since ho was
never lawfully admitted for permanent residence. We agree with the
special inquiry officer that the charge in the order to show cause
and the lodged obsrgA are both sustained. Respondent declined to
apply for any discretionary relief. The appeal will be dismissed.
ORDER: It is orde,-ed that the appeal be and the same is hereby
dismissed.
2 Matter of C—F—L, 8-151, 153, referring to a memorandum supplied by the
Far Eastern Law Division of the Library of Congress on the formality of adoption under the law of the Republic of China in which the age limitation of not

inure limn 7 years was promulgated in a Judicial Yuan Advisor , Opinion, 7842,
No. Yuan 2332. The case of Matter of W-11-0—, 3---609, in which the term

"infancy?" was defined as early childhood or babyhood, concerned a child who
was adopted when approximately 2 to 4 years old.
3 We find it unnecessary to reach the question of whether a person is "erroneously" admitted as a United States citizen where the true facts are not
revealed.

612


Interim Decision #2920

MATTER OF EXAME

In Exclusion Proceedings

A-26007788
Decided by Board September 3, 1982
(1) Background evidence relating to general or specific conditions in the country to which
an alien's persecution claim is directed is 'admissible in proceedings to adjudicate an
asylum application so long as it is relevant, material, and noncumulative. Accordingly,
the immigration judge's categorical rejection of background evidence relating to general
conditions in Haiti improperly precluded the applicant from making a fait and fair
presentation of his persecution claim, thus necessitating a remand for further proceedings and further consideration of the applicant's asylum application.
(2) While an alien is entitled to have a persecution claim evaluated in the context of
whatever admissible evidence he desires to submit, such general background evidence
is usually not sufficient per se to establish a claim of persecution. The ultimate test is
whether objective evidence of record is significantly probative of the likelihood of

persecution to this particular alien, sufficient to establish a well-founded fear of persecution.
(3) Recusal of an immigration judge in exclusion proceedings is mandated by section 236
of the Immigration and Nationality Act. 8 U.S.C. 1226, only where the immigration
judge has previously participated in investigative or prosecuting functions involving the
particular alien applicant presently before him. The immigration judge's past participation as an Immigration and Naturalization Service general (trial) attorney in other
Haitian asylum cases or as co-counsel for the Government in federal court proceedings
involving similar Haitian asylum applicants does not require his disqualification in these
proceedings because the applicant has not established that the immigration judge participated in previous investigative or prosecuting functions involving this particular applicant, nor that the manner in which the immigration judge conducted this proceeding
demonstrates bias or prejudice against the applicant such that he was deprived of a
constitutionality fair hearing.
ExchtlhaRLE: Act of 1952—Sec. 312(a)(20) 18 U.S.C. I182(aX20)1--Immigrant not in
possession of valid immigrant visa

ON BEHALF F SKI:AWE:
Gerald Hurwitz
Appellate Ti ial Attorney

ON BEHALF OF APPL1cANT:
Vera Weisz, Esquire
Haitian Refugee Center, Inc.
BY:

"

Milhollan, Chairman, Maniatis, Dunne. Mon-is. and .Vacca. Board Members

This matter is before the Board on appeal from the immigimtionjudge's
decision of November 3, 1981, finding the applicant• excludable from
308

Interim Decision #2920
admission to the United States under section 212(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1182 (a)(20), and denying his application for asylum under section 208 of the Act, 8 U.S.C. 1158.' The record
will be remanded.
The applicant is a 50-year-old native and citizen of Haiti who arrived
in the United States on July 27, 1981, by boat near Miami, Florida. Ile
had no documents with which to enter the United States and was held in
detention by the Service. On July 29, 1981, he was served with a Form
I-122, "Notice to Applicant for Admission Detained for Hearing Before
Immigration Judge," alleging that he was exchidable from admission to
the United States under section 212(a)(20) of the Act as an immigrant
not in possession ofa valid immigrant visa. Following his initial two
hearings before the immigration judge which were continued to permit
the applicantjto have counsel present and to submit an asylum application,
the applicant filed a Farm 1-589, "Request for Asylum in the United
States," on September 21, 1981.' Upon receipt of an advisory opinion
from the United States Department of State, Bureau of Human Rights
and Humanitarian Affairs (131IRHA), 3 the exclusion hearing was resumed

on November 3, 1981. The immigration judge found the applicant excludable as indicated above and denied his asylum application.
The record clearly establishes and the applicant does nbt contend
otherwise that, inasmuch as he has no documents with which to legally

enter the United States, he is excludable under section 212(a)(20) of the
Act. The only issue presented on appeal is whether the applicant's asylum application was properly denied.
It should be emphasized that a principal focus of our consideration of
' this appeal is whether the applicant was afforded a full and fair opportunity to present the merits of his asylum application and establish his
claim of having a well founded fear of persecution in Haiti. After reviexv
-

of the record, we are persuaded that the applicant has not had such an
opportunity and therefore a remand for further proceedings is required.
We base our conclusion that the applicant was denied the opportunity
to fully present his asylum claim upon the immigration judge's categorical rejection of background information relating to general conditions in
Haiti. The applicant offered such evidence as various reports by Amnesty •
International and the Lawyers Committee for International Human

Rights, Country Reports on Human Rights Practices from the United
' 8 C.F.R. 208.3(6) provides that the filing of an application for asylum in exclusion
proceedings shall also be considered as a request for withholding of exclusion under
section 243(h)of the Act, 8 U.& C. 1253(h).
Accordingly, jurisdiction over the applicant's asylum request lies properly and exclusively with the immigration judge in these exclusion proceedings. See Matter of Dee,
Interim Decision 2512 (BIA 1582).
SeiS
OAT and 208110(b).

304

Interim Decision #2920
States Department of State, transcripts of court testimony of expert
witnesses and Haitian individuals, and the testimony or affidavits of
alleged corroborative witnesses and/or experts on conditions in Haiti.
The immigration judge denied admission of this evidence, reasoning
that it did not specifically identify or name the applicant. We find this
categorical exclusion of background evidence to have been in error. '
Background evidence relating to general or specific conditions in the

country to which an alien's persecution claim is directed is admissible in
proceedings to adjudicate his asylum application so long as it is relevant,
Material, and noncumulative. See Matter of Martinez-Romero, 18 I&N
Dec. 75 (BIA 1981); Matter of McMullen, 17 I&N Dec. 542 (BIA 1980),
rev'd on. other grounds, 658 F.2d 1312 (9 Cir. 1981); Matter of
Williams, 16 I&N Dec. 697 (BIA 1979); Matter of Chumpitazi, 16 I&N
Dec. 629 (BIA 1978); Matter of Joseph, 13 I&N Dec. 70 (BIA 1968); see
also 8 C.F.R. 208.10; Coriolan v. INS, 559 F.2d 993 (5 Cir. 1977).

While such general background material usually would not be sufficient
per se to establish the applicant's persecution claim,' nevertheless, he is
entitled to have that claim evaluated in the context of whatever admissible evidence he desires to submit. Inasmuch as the immigration judge
improperly denied admission of the background evidence described above
and thereby precluded the applicant from making a full and fair presentation of his persecution claim, the record must be remanded,to the
immigration judge for a new hearing and further consideration of the
applicant's asylum application.'
The applicant also has raised numerous other objections to the proceedings below. In view of our decision to remand the record, however,
we need not reach the merits of all of these other objections. Such issues
pertaining to the adequacy of the opportunity to prepare and present
the request for asylum are rendered moot by this disposition. Nevertheless, we do find it necessary to address the following few matters.
The applicant argues that the4immigration judge erred by, failing to
recuse or disqualify himself because at one time he served as a General

Attorney (Trial Attorney) for the Service and participated in earlier
Haitian asylum cases and/or served as co-counsel for the Government in
4 The immigration judge should give this and all other evidence its appropriate weight.
The ultimate test remains, of course,whether objective evidence of record is significantly
probative of the likelihood of persecution to this particular individual alien, sufficient
to establish a well-founded fear of persecution in Haiti. See sections 101(a)(42)(A) and 208
of the Act.
We are aware that this background evidence is extremely voluminous. It also appears
that most if-not all of this evidence has been sought to be introduced in many other imses
involving Haitian asylum applicants, which number in the hundreds. For the convenience
of both the aliens and the Service, as well so to facilitate appellate review, should such be
necessary, we express the hope that the parties can agree to a mechanism to simplify the
admissie and consideration of this common background evidence.
,

305

Interim Decision #2920
federal court proceedings involving similar Haitian applicants, and
because the immigration judge was otherwise biased against the
applicant. We do not so find.
In exclusion proceedings, motions for recusal are governed by section
236(a) of the Act, 8 U.S.C: 1226, and the constitutional due process
requirement that the hearing be before a fair and impartial arbiter.
Section 226(a) provides, in pertinent part, that no immigration judge

"shall conduct [an exclusion] proceeding in any case . . . in which he shall
have participated in investigative functions or in which he shall have
participated . . . in prosecuting functions." We interpret this section as
precluding an immigration judge from hearing a, case involving a specific
applicant for admission if the immigration judge has participated in
investigative or prosecuting functions involving that particular case.
The words "in any case" may not be construed as referring generally to
cases similar to those in which an immigration judge may have been
previously involved in investigative or prosecuting functions. Inasmuch
as it has not been established that the immigration judge participated in
any previous investigative or prosecuting functions involving the case

before us, we do not find that he was precluded from hearing this case
by the provisions of section 236(a) of the Act.
As to whether the applicant has demonstrated that he was deprived
of a constitutionally fair proceeding, we note initially that an immigration judge's rulings in the same or similar cases do not ordinarily form a
basis upon which to allege bias. Moreover, an applicant is not denied a
fair hearing merely because the immigration judge has a point of view
about a question of law or policy. Nor does the fact that the immigration
judge may have previously participated in investigative or prosecuting
functions in similar proceedings prior to becoming an immigration judge

provide a basis upon which to establish a disqualifying bias. As a general
rule, in order to warrant a finding that an immigration judge is disqualified from hearing a case it must be demonstrated that the immigration
judge had a personal, rather than judicial, bias stemming from an
"extrajudicial') source which resulted in an opinion on the merits on
some basis other than what the immigration judge learned from his
participation in the case. An exception to the general rule that bias must
stem from an "extrajudicial" source may arise where "such pervasive

bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party." Davis v. Board of School Comm'rs, 517
F.2d 1044(5 Cir. 1975), cert; denied, 425 I.J.S. 944 (1976).
We have reviewed the record in its entirety and do not find sufficient
support for the applicant's claim of bias by the immigration judge to
warrant the conclusion that a fair hearing required his disqualification.

We do not find that

the immigration judge's previous involvement in

similar cases as a Government attorney prior to his appointment as an
306

Interim Decision #2920
immigration judge or the manner in which he conducted the proceedings
in this case demonstrates a bias or prejudice mandating his recusal.
The applicant also objects to the denial of his motions for "simultaneous
translation" of the exclusion hearing and for the taking of interrogatories or depositions from BEIRHA officials. We find no error in the denial
of thege motions. See Matter of Exilus, 18 I&N Dec. 276 (BIA 1982).
Similarly, we find that the immigration judge's denial of the motion to
change venue was correct. See Matter of Alphonse, 18 I&N Dec. 178
(BIA 1981).
In conclusion, we find that the applicant was not afforded a full and
fair opportunity to present his persecution claim because of the immigration judge's categorical refusal to admit background evidence pertaining
to conditions in Haiti. Therefore, the record will be remanded for further proceedings and further consideration of the applicant's asylum
application to determine whether he has established a well-founded fear
of persecution in Haiti.
ORDER: The record is remanded to the immigration judge for
further proceedings and further consideration of the applicant's application for asylum under section 208 of the Act and for entry of a new

decision.

307


Interim Decision #2013

MATTER OF HOLGUIN

In Deportation Proceedings
A-19052331
A-19052332

Decided by Board November 19, 1969
Where respondents' generalized statements of the reasons for their appeals
do not indicate the aspect of the special inquiry officer's orders they consider incorrect and for what reason, their appeals in deportation proceedings from orders of the special inquiry officer granting voluntary departure, the relief requested, and the only relief for which eligible, are
summarily dismissed as frivolous appeals and oral argument thereon denied by the Board of Immigration Appeals since respondents failed to
clearly specify the reasons for their appeals within the meaning of 8 CFR
3.1(d) (1–a) (i), and they were granted the relief requested by the special
inquiry officer (8 CFR 3.1 (d) (1–a) (iii)).

CHARGE :
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2))—Nonimmigrant—remained longer (both respondents).
ON BEHALF OF RESPONDENTS: Manuel Lopez, Esquire
1725 West Beverly Boulevard
Los Angeles, California 90026

Respondents, husband and wife, appeal from orders of a special
inquiry officer finding them deportable and granting them voluntary departure. Their notices of appeal request oral argument before this Board. The requests for oral argument will be denied
and the appeals will be summarily dismissed pursuant to 8 CFR
3.1(d) (1—a).
The facts are not in dispute. The respondents are natives and
citizens of Mexico. The husband, aged 33, was last admitted to
the United States on November 23, 1966. The wife, aged 28, was
last admitted on December 18, 1966. Both were admitted as temporary visitors and authorized to remain until May 9, 1969. A
child born to them on September 23, 1967, in Los Angeles, is a
citizen of the United States.

423

Interim Decision #2013
Orders to show cause, issued on July 18, 1969, charged alienage
and entry as above-stated and that respondents had remained
longer than permitted. At a joint deportation hearing on August
29, 1969, at which they were represented by counsel, both respondents admitted the truth of the factual allegations of their
respective orders to show cause and conceded deportability as
charged. Each applied for the privilege of voluntary departure. It
was brought out that both respondents had submitted applications for immigrant visas to the American Consul at Juarez,
Mexico four months previously. Counsel estimated that it would
be roughly two or three months before the visas would be issued.
The special inquiry officer stated that he would not be able Co
grant the respondents sufficient time to remain in the United
States to await the visas, pointing out that any extension of the
voluntary departure time he fixed would be a matter for the District Director to decide. The special inquiry officer entered separate orders granting respondents until September 19, 1969 to depart voluntarily, with alternate orders for their deportation to
Mexico if they failed to depart by that date or any extended date
fixed by the District Director. It is these orders which are before
us on appeal.
In the space provided for a statement of the reasons for the appeal, each notice of appeal sets forth, "Decission [sic] is contrary
e customary and enacted law as it relates to the operative facts
n the present matter." No briefs have been filed.
Appeals to this Board from decisions of special inquiry officers
n deportation cases are generally available as a matter of right.
lost such appeals are submitted to the Board for adjudication on
he record and briefs, if any, without request for oral argument.
Trader 8 CFR 3.6, execution of the special inquiry officer's order
stayed pending appeal. The availability of this respite from deortation opens the door to appeals which are purely frivolous
ad taken solely for purposes of delay. As we stated in Matter of
aqui, Interim Decision No. 1964 (BIA, 1969), "Delay as an end
itself, whether achieved by obstructionism or dilatory tactics,
Lnnot in our view be considered a legitimate object."
Frivolous and dilatory appeals are extremely wasteful of the
n-vice's and this Board's limited resources. They require need3S transcription of the records of deportation hearings. They
ipinge upon the time and professional attention needed for
aly meritorious cases, of which there are many. Effective adnistration of the immigration laws requires that we discourage
424

Interim Decision #2013
frivolous appeals. We try to do this by expediting our consideration and decision in appeals of that sort.
Under 8 CFR 3.1 (e), oral argument on appeal before the Board
is available upon request. The opportunity for oral argument
serves a useful purpose in many cases. In frivolous and dilatory
appeals, it merely makes available an additional avenue of delay.
Since our calendars of oral argument automatically guarantees at
least some delay. Oral arguments before the Board are recorded
and transcribed, and this, too, makes for delay.
It has been our sad experience that in many appeals in which
oral argument has been requested, neither the attorney nor the
respondent appearing pro se is present when the case is called,
and the Board receives no advance notice of their non-attendance.
In such instances, we consider the case as submitted on the record. Such requests for oral argument and failure to appear do afford a little more delay, where that is the real object of the appeal; but they are extremely wasteful of the Government's
facilities. Not only is oral argument delayed in other cases which
have been preempted on the oral argument calendar, but valuable
professional time is needlessly expended by Board members and
Service attorneys in preparing for oral arguments which never
materialize.
8 CFR 3.1 (d) (1—a) provides as follows:
Summary dismissal of appeals. Notwithstanding the provisions of paragraph (e) of this section, the Board may deny oral argument concerning,
and summarily dismiss, any appeal in any deportation proceeding under
Part 242 of this chapter in any case in which (i) the party concerned fails
to specify the reasons for his appeal on Form 1-290A (Notice of Appeal),
(ii) the only reason specified by the party concerned for his appeal involves
a finding of fact or a conclusion of law which was conceded by him at the
hearing, or (iii) the appeal is from an order that granted the party concerned the relief which he requested.

As we have pointed out, we deal promptly with frivolous appeals
submitted on the record without oral argument. The above-quoted
regulation was designed to permit us to deal equally promptly
with frivolous appeals in which oral argument has been requested. In our view, these are such appeals.
The generalized statements of the reasons for these appeals, as
set forth in the respective notices of appeal, are totally inadequate. They do not tell us what aspect of the special inquiry
officer's order they consider incorrect and for what reason. They
do not apprise the Service of the issues its representative must be
prepared to discuss at the oral argument. Respondents have
425

Interim Decision #2013
clearly failed to specify the reasons for their appeals within the
meaning of 8 CFR 3.1(d) (1—a) (i), supra.
From our review of the record, we are satisfied that deportabilty has been established by evidence that is clear, convincing and
inequivocal. The only form of discretionary relief for which repondents are eligible is voluntary departure. They requested this
elief and the special inquiry officer granted it. This would aptar to bring their appeals squarely within the ambit of 8 CFR
.1(d) (1—a) (iii), supra.
Even if the notices of appeal be considered as specifying that
le special inquiry officer was arbitrary in granting only three
eeks' departure time, we would still be required to dismiss these
)peals. As the special inquiry officer pointed out, and as we have
∎nsistently held, under 8 CFR 244.2 the extension of voluntary
!parture time is within the sole jurisdiction of the District
irector. In view of the indefiniteness of the additional time.
eded for visa purposes and in view of the adequacy of the adnistrative remedy available under 8 CFR 244.2, the special iniry officer's refusal to fix a longer departure period can
trcely be called arbitrary.
dis we have pointed out in Matter of Aguirre, Interim Decision
. 1940 (BIA, 1969), under 8 CFR 3.6 the running of the voluny departure time authorized by the special inquiry officer has
n stayed pending appeal. Thus, the respondents still have 21
s from the date of our decision within which to depart volunly and thereby avoid the automatic entry of the deportation
?rs prescribed by the special inquiry officer.
RDER: It is ordered that the requests for oral argument be
ed and that the appeals be dismissed.
is further ordered that, pursuant to the special inquiry
?r's orders, the respondents be permitted to depart from the
,ed States voluntarily within 21 days from the date of this den or any extension beyond that date as may be granted by
District Director ; and that, in the event of failure so to dethe respondents shall be deported as provided in the special
ry officer's orders.

426

1


Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

Matter of A-B-, Respondent
Decided by Acting Attorney General January 14, 2021
U.S. Department of Justice
Office of the Attorney General
(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), did not alter the existing standard
for determining whether a government is “unwilling or unable” to prevent persecution
by non-governmental actors. The “complete helplessness” language used in Matter of
A-B- is consistent with the longstanding “unable or unwilling” standard, as the two are
interchangeable formulations.
(2) The concept of “persecution” under the Immigration and Nationality Act, 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(a), (b)(i), is premised on a breach of a home country’s
duty to protect its citizens. In cases where an asylum applicant is the victim of violence
or threats by non-governmental actors, and the applicant’s home government has made
efforts to prevent such violence or threats, failures in particular cases or high levels of
crime do not establish a breach of the government’s duty to protect its citizenry.
(3) The two-pronged test articulated by the Board of Immigration Appeals in Matter
of L-E-A-, 27 I&N Dec. 40, 43–44 (BIA 2017), is the proper approach for determining
whether a protected ground is “at least one central reason” for an asylum applicant’s
persecution, 8 U.S.C. § 1158(b)(1)(B)(i). Under this test, the protected ground: (1) must
be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor
role—in other words, it cannot be incidental or tangential to another reason for the act.

BEFORE THE ACTING ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (the “Board”) to refer to me its decision in this case. With the case
thus referred, I hereby vacate the Board’s June 30, 2020 decision and remand
this case for review by a three-member panel consistent with this order.
In earlier proceedings in this case, Attorney General Jefferson
B. Sessions, III, clarified important issues concerning the interpretation of
the phrase “particular social group,” and corrected an erroneous decision of
the Board issued in 2014. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
Several courts of appeals have upheld that interpretation as reasonable and
within the Attorney General’s discretion.
See, e.g., Del Carmen
Amaya-De Sicaran v. Barr, 979 F.3d 210, 217 (4th Cir. 2020) (“The Attorney
General’s ruling in Matter of A-B- is not arbitrary and capricious.”);
Diaz-Reynoso v. Barr, 968 F.3d 1070, 1078–87 (9th Cir. 2020) (rejecting an
arbitrary-and-capricious challenge to Matter of A-B-); Scarlett v. Barr, 957
F.3d 316, 332–33 (2d Cir. 2020) (concluding that the Attorney General’s
199

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

interpretation of “persecution” is reasonable and that the “complete
helplessness to protect” formulation was not new but “is well grounded in
circuit precedents”); Amezcua-Preciado v. U.S. Att’y Gen., 943 F.3d 1337,
1344 (11th Cir. 2019) (“[W]e defer to the Attorney General’s interpretation
of the phrase ‘particular social group’ in A-B- because it is reasonable and
consistent with both the BIA’s and this Court’s prior precedent.”);
Gonzales-Veliz v. Barr, 938 F.3d 219, 233 (5th Cir. 2019) (“reject[ing] . . .
argument” that Matter of A-B- decision is arbitrary and capricious because
“A-B- did not constitute a change in policy” and “assuming arguendo that
A-B- can be read to constitute a change in policy, the Attorney General
adequately acknowledged and explained the reasons for the change”). The
opinion in Matter of A-B- sets forth the appropriate framework to govern the
respondent’s claim.
On remand from Attorney General Sessions’s 2018 opinion and order,
the immigration judge issued a new decision, which the Board affirmed.
Although the Board sought to follow the Attorney General’s opinion on
remand, I am referring and reviewing this matter to provide additional
guidance concerning three recurring issues in asylum cases involving
applicants who claim persecution by non-governmental actors on account of
the applicant’s membership in a particular social group: (1) whether
Attorney General Sessions’s 2018 opinion altered the existing standard for
determining whether a government is “unwilling or unable” to prevent
persecution by non-governmental actors; (2) whether a government that
makes efforts to stop the harm in third-party persecution cases is “unable or
unwilling” to prevent persecution; and (3) whether a protected ground must
be more than a but-for cause in order to be at least “one central reason” for
persecuting an asylum applicant. With this matter referred to me, I issue this
opinion to provide additional clarity on these three issues, and remand to the
Board for further proceedings applying the principles outlined herein.

I.
Attorney General Sessions’s decision in Matter of A-B- reiterated the
legal standard for determining when persecution committed by
non-governmental actors may be attributed to the government. As has long
been the case, an asylum applicant must establish that the harm she suffered
was “inflicted either by the government of a country or by persons or an
organization that the government was unable or unwilling to control.”
Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). In discussing that
standard, the Attorney General relied on several Federal court decisions that
have addressed the “unable or unwilling” standard, including the Seventh
Circuit’s recognition that an applicant must show that the government
200

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

condoned the private actions “or at least demonstrated a complete
helplessness to protect the victims.” Galina v. INS, 213 F.3d 955, 958
(7th Cir. 2000). That discussion did not alter the “unable or unwilling”
standard set forth in Matter of Acosta.
In the wake of the Attorney General’s opinion, some applicants have
argued that the decision’s reliance on the “complete helplessness” language
in Galina reflected a change in interpretation because that language was
supposedly inconsistent with the “unable or unwilling” standard. I disagree.
As the Second Circuit has recognized, that language is “not new,” but “well
grounded in circuit precedents”—decided before Attorney General Sessions
issued the opinion in Matter of A-B-. Scarlett, 957 F.3d at 333. The
“complete helplessness” language does not depart from the “unable or
unwilling” standard; the two are interchangeable formulations. See id.
at 332–33; see also Gonzales-Veliz, 938 F.3d at 233.
Before Matter of A-B-, several courts of appeals had used that language
as a way of describing when a government was “unable or unwilling” to
control persecution. See Guillen-Hernandez v. Holder, 592 F.3d 883,
886–87 (8th Cir. 2010) (quoting, with approval, “condoned it or at least
demonstrated a complete helplessness to protect the victims” language from
Galina, 213 F.3d at 958); Kere v. Gonzales, 252 F. App’x 708, 712 (6th Cir.
2007) (same); Shehu v. Gonzales, 443 F.3d 435, 437 (5th Cir. 2006) (same);
Hor v. Gonzales, 421 F.3d 497, 501–02 (7th Cir. 2005) (same);
cf. Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007) (“An applicant
must show the government’s acquiescence in the persecutor’s acts or its
inability or unwillingness to investigate and punish those acts, and not just a
general difficulty preventing the occurrence of particular future crimes” (first
emphasis added)). The “two formulations accomplish the same purpose: to
show that an alien’s home government has more than difficulty . . .
controlling private behavior.” Gonzales-Veliz, 938 F.3d at 233 (internal
quotation marks omitted).
Nevertheless, the D.C. Circuit recently interpreted Matter of A-B- as
departing from the existing “unable or unwilling” standard and establishing
a new, heightened one. See Grace v. Barr, 965 F.3d 883, 889–900 (D.C. Cir.
2020). In so doing, the D.C. Circuit did not discuss the several circuit court
decisions to the contrary, but instead contended that “as a matter of plain
language, the two formulations are hardly interchangeable” and that the
Matter of A-B- standard “obviously” requires more culpability. Id.
at 898–99. Along with the Second and Fifth Circuits, I disagree. See supra
at 199 (discussing Gonzales-Veliz, 938 F.3d at 233, and Scarlett, 957 F.3d
at 333). Matter of A-B- did not alter the longstanding “unable or unwilling”
standard or implement a new, more stringent test for determining when
persecution by third parties may be attributed to the government. A
201

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

government that is unwilling to control or protect against private harm can
be said to “condone” it, in the ordinary sense of that word. See, e.g.,
Webster’s Third New International Dictionary 473 (1993) (condone means
“to permit the continuance of”). And the “completely helpless” formulation
identifies “as persecutors governments that are actually unable to protect
persons against private violence,” while ensuring “that a government is not
charged with persecution for failing to provide a particular standard of
protection, or for lapses in protection.” Scarlett, 957 F.3d at 333. This is
consistent with existing law, since “able” to protect has always been applied
as a matter of degree, rather than as a guarantee of absolute protection. See
Saldana v. Lynch, 820 F.3d 970, 977 (8th Cir. 2016) (“[A] government that
is ‘unable’ to control criminal activity cannot mean anything and everything
short of a crime-free society; the standard is more akin to a government that
has demonstrated ‘complete helplessness’ to protect victims of private
violence.”); Galina, 213 F.3d at 958 (“since a finding of persecution
ordinarily requires a determination that government authorities, if they did
not actually perpetrate or incite the persecution, condoned it or at least
demonstrates a complete helplessness to protect the victims”). The reference
in Matter of A-B- to this well-established formulation thus paraphrased
existing law concerning when, under the Immigration and Nationality Act
(“INA”), private-party violence may be attributed to a foreign government
as its own “persecution” because of an unwillingness or inability to control
it. 1

II.
No matter whether Matter of A-B- is viewed as changing the existing
standard for persecution, I conclude, in accordance with my authority to
interpret the INA, see 8 U.S.C. § 1103(a)(1), that Matter of A-B-’s
formulation appropriately clarifies the requisite governmental role in relation
to persecution by private actors for purposes of establishing refugee status. 2
1

Because the complete-helplessness standard and unwilling-or-unable formulations are
interchangeable expressions of the same substantive standard, the former is not a change
in policy that requires a reasoned explanation. But see Grace, 965 F.3d at 899–900
(holding that use of “complete helplessness” language constituted an unexplained change
in policy).
2
The Departments of Justice and Homeland Security recently promulgated regulations
to codify the definition of the term “persecution” consistent with case law:
For purposes of adjudicating an application for asylum under section 208 of the Act
or an application for withholding of removal under section 241(b)(3) of the Act,
persecution requires an intent to target a belief or characteristic, a severe level of

202

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

In cases where the applicant’s home government made efforts to prevent the
claimed persecution, an increasingly frequent question is how effective a
government’s protection from private violence must be to preclude a finding
of persecution. Adjudicators may benefit from guidance on the reasons for
the unwilling/unable to protect standard and guideposts for how to apply it
in particular cases. See Urbina-Dore v. Holder, 735 F.3d 952, 954 (7th Cir.
2013) (“The Board has used the ‘unwilling or unable to control’ formula
since 1964 yet has never attempted to quantify just how far a nation may
depart from perfect law enforcement without being deemed complicit in
private crimes.”). For the reasons explained below, the “complete
helplessness” formulation reflects an appropriate way to understand the
unwilling and unable standard—one that is consistent with the text of the
INA and the Attorney General’s discretion under the Act. Contra Grace,
965 F.3d at 897–99.
A.
One threshold question is how best to interpret “persecution” in this
context. The reason for requiring governmental involvement in persecution
is the longstanding premise that persecution is defined by a breach of the
home country’s duty to protect its citizens. See Rodas-Mendoza v. INS, 246
F.3d 1237, 1240 (9th Cir. 2001) (“[V]iolence ‘completely untethered to a
governmental system does not afford a basis for asylum.’” (internal citation
harm, and the infliction of a severe level of harm by the government of a country or
by persons or an organization that the government was unable or unwilling to control.
For purposes of evaluating the severity of the level of harm, persecution is an extreme
concept involving a severe level of harm that includes actions so severe that they
constitute an exigent threat. Persecution does not encompass the generalized harm
that arises out of civil, criminal, or military strife in a country, nor does it encompass
all treatment that the United States regards as unfair, offensive, unjust, or even
unlawful or unconstitutional. It does not include intermittent harassment, including
brief detentions; threats with no actual effort to carry out the threats, except that
particularized threats of a severe harm of immediate and menacing nature made by
an identified entity may constitute persecution; or, non-severe economic harm or
property damage, though this list is nonexhaustive. The existence of government
laws or policies that are unenforced or infrequently enforced do not, by themselves,
constitute persecution, unless there is credible evidence that those laws or policies
have been or would be applied to an applicant personally.
See Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable
Fear Review, 85 Fed. Reg. 80,274, 80,395 (Dec. 11, 2020) (to be codified at 8 C.F.R.
§ 1208.1(e)); see also id. at 80,386 (substantially similar language to be codified at 8 C.F.R.
§ 208.1(e)). Although this definition is not controlling on this particular case, it is
consistent with the parameters outlined in this case.

203

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

omitted)); see also 8 C.F.R. §§ 1208.13(a), 1208.16(b). As the Board noted
in one of its foundational decisions: “Traditionally, a refugee has been an
individual in whose case the bonds of trust, loyalty, protection, and assistance
existing between a citizen and his country have been broken and have been
replaced by the relation of an oppressor to a victim.” Matter of Acosta,
19 I&N Dec. at 235 (citing 1 Atle Grahl-Madsen, The Status of Refugees in
International Law 97, 100 (1966)); see also Harutyunyan v. Gonzales, 421
F.3d 64, 68 (1st Cir. 2005) (“[P]ersecution always implies some connection
to government action or inaction.”).
While every civilized state seeks to protect its citizens from harm, no
government can provide “a crime-free society.” Saldana, 820 F.3d at 977.
The level of inaction or ineffectiveness required to rise to the level of
persecution should, accordingly, be high. The Refugee Act should not be
read to guarantee freedom from crime, or even to guarantee the same
crime-fighting resources that are available in more wealthy countries. See
Scarlett, 957 F.3d at 333 (“The ‘complete helplessness’ formulation from
[Matter of A-B-] thus ensures that a government is not charged with
persecution for failing to provide a particular standard of protection, or for
lapses in protection. At the same time, it serves to identify as persecutors
governments that are actually unable to protect persons against private
violence . . . .”). The word “persecution” therefore should be read to require
that the government in the home country has fallen so far short of adequate
protection as to have breached its basic duty to protect its citizens, or else to
have actively harmed them or condoned such harm. Where the government
is actively engaged in protecting its citizens, failures in particular cases or
high levels of crime do not establish a breach of the government’s duty to
protect its citizenry. See, e.g., Velasquez-Gaspar v. Barr, 976 F.3d 1062,
1064–65 (9th Cir. 2020) (although Guatemala “has a long way to go in
addressing domestic violence,” substantial evidence, including Guatemala’s
efforts to curb violence against women, supported the determination that the
Guatemalan Government could have protected the alien against her abuser);
Ritonga v. Holder, 633 F.3d 971, 977–78 (10th Cir. 2011) (despite
voluminous documentation of violence against Christians in various parts of
Indonesia and some evidence of government tolerance, concluding that
record as a whole does not show government unable or unwilling to combat
such crimes); Burbiene v. Holder, 568 F.3d 251, 255–56 (1st Cir. 2009)
(Lithuanian Government was not unwilling or unable to combat human
trafficking, where it was making efforts to fight crime but had not been able
to eliminate it, because these efforts were like any other government that
experiences successes and setbacks in fighting crime).
This understanding of the “unable or unwilling” standard makes clear that
the government must have some role in or responsibility for the
204

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

“persecution.” 3 Furthermore, this interpretation provides reasonable and
appropriate constraints on the definition of “persecution” in this context.
I find no indication in the text or history of the INA that Congress intended
the United States to be the insurer of all high-crime jurisdictions, taking in
large numbers of victims of private criminal activity because their home
countries failed to provide the level of police protection found elsewhere.
Cf. Velasquez v. Sessions, 866 F.3d 188, 199 (4th Cir. 2017) (Wilkinson, J.,
concurring) (“The asylum statute is not a general hardship statute.”);
Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017) (“For purposes
of asylum or withholding of removal, it is not enough that a person comes
from a wretched place, where life will most probably be far worse than if he
remains in the United States.”). Asylum law protects persons from severe
harm inflicted at the hands of their government on the basis of a protected
characteristic; it does not entitle everyone in the world to the same level of
safety that we enjoy in the United States.
I also stress that “unable” must mean more than the failure to prevent or
solve a particular crime. The phrase “unwilling or unable to protect” has
long excluded from the definition of “persecution” instances where a
government has taken efforts to punish wrongdoers who have already
committed a crime, even though the crime’s existence shows the government
was not able to prevent the harm in the first place. See, e.g., K.H. v. Barr,
920 F.3d 470, 475–78 (6th Cir. 2019) (Guatemalan Government was not
unwilling or unable to control private wrongdoers where after a child was
raped, the government mobilized to capture criminals and punish them).
Crime occurs in all societies, and governments discharge their duty to protect
their citizens by their efforts to detect and punish crime, as well as by their
efforts to prevent it. One should not focus narrowly on whether government
efforts to protect the applicant were effective in her specific case, or focus on
a few cases where perpetrators went unpunished. See Al Khalili v. Holder,
3

As courts of appeals have recognized, a government that is unaware of persecution
generally cannot be said to have some role or responsibility for it. Thus, an alien alleging
persecution by private actors may have difficulty establishing persecution on account of a
protected ground when he or she has failed to apprise authorities of the persecution. See,
e.g., Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1345 (11th Cir. 2007) (“Although the failure
to report persecution to local government authorities generally is fatal to an asylum claim . . .
it [may] be excused where the [alien] convincingly demonstrates that those authorities
would have been unable or unwilling to protect her, and for that reason she could not rely
on them.” (internal citation omitted)). An alien’s failure to apprise authorities of
private-actor persecution may be excused in narrow circumstances, see id., but it ordinarily
will be difficult for an alien to establish, counter-factually, that authorities would have been
unwilling or unable to help him or her individually if they had been aware of the
persecution. As necessary or appropriate, the Board may address this point further upon
remand.

205

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

557 F.3d 429, 436 (6th Cir. 2009) (despite fact that some perpetrators got
light sentences, Jordanian government was not unwilling or unable to protect
male applicant from honor killings); cf. Juan Antonio v. Barr, 959 F.3d 778,
799–800 (6th Cir. 2020) (Boggs, J., concurring) (“It is an unfortunate truth
that even in this country there are many occasions when our local
governments have done no more than Guatemala did here, with far more
tragic outcomes . . . . It seems a bit of a stretch to charge Guatemala with
unwillingness to enforce its laws simply because it is not always successful.
If that is the standard, the number of countries from which persecution could
be claimed under this heading would undoubtedly multiply greatly.”).
Absolute prevention of private criminal acts is a standard that any
country—including our own—would fail. According to the Department of
Justice’s Bureau of Justice Statistics, in 2019 there were over 2 million
serious violent crimes in the United States and over 1 million incidents of
domestic violence. See Bureau of Justice Statistics, U.S. Dep’t of Justice,
NCJ 255113, Criminal Victimization, 2019, at 3 tbl.1, 5 tbl.3 (Sept. 2020).
And according to another report, even when domestic violence incidents are
reported, a criminal complaint is filed only 48% of the time, and the offender
was arrested or charged only 39% of the time. See Bureau of Justice
Statistics, U.S. Dep’t of Justice, NCJ 250231, Police Response to Domestic
Violence, 2006–2015, at 1 (May 2017).
In even the most well-functioning, well-funded of criminal justice
systems, innocent people will be victimized by crime, the police will at times
prove ineffective, and the guilty may go unpunished. Cf. Cece v. Holder,
733 F.3d 662, 679 (7th Cir. 2013) (Easterbrook, J. dissenting) (“Crime may
be rampant in Albania, but it is common in the United States too. People are
forced into prostitution in Chicago. Must Canada grant asylum to young
women who fear prostitution in the United States, or who dread the risk of
violence in or near public-housing projects?” (internal citation omitted)). But
the inability to eradicate private crime does not establish in any measure that
a government is affirmatively persecuting its own citizens. See, e.g.,
Urbina-Dore, 735 F.3d at 954 (“Many places in the United States endure
high levels of violence without any suggestion that the police and judiciary
have abetted criminals in ‘persecution’ of persons whose property is stolen
or whose lives are threatened.”); Nahrvani v. Gonzales, 399 F.3d 1148, 1154
(9th Cir. 2005) (where German police took reports, investigated, and did not
solve crimes, government was not unwilling or unable to control alleged
persecutors). There must be far more before a decision maker may
reasonably conclude that a foreign country is “unable or unwilling” to
prevent persecution.

206

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

B.
An additional factor to consider in determining whether a country is
“unable or unwilling” is the possibility of internal relocation. See 8 C.F.R.
§ 208.13(b)(2)(ii), (b)(3). Persecution requires that “the bonds of trust,
loyalty, protection, and assistance existing between a citizen and his country
have been broken,” Matter of Acosta, 19 I&N Dec. at 235, such that asylum
in a foreign country is warranted. If an alien may reasonably relocate within
his home country to avoid persecution, then that may show that the failure to
prevent private violence is localized and the foreign country is not itself
“unwilling or unable” to prevent persecution.
Although evidence of localized police apathy or incompetence may
indicate a government’s unwillingness or inability to prevent persecution, in
many cases the localized apathy is just that—localized. See, e.g., Vahora
v. Holder, 707 F.3d 904, 908–09 (7th Cir. 2013) (where local police and
political leaders participated in communal violence, but country reports
showed national government was pursuing efforts to bring them to justice,
government was not unwilling or unable to control); Harutyunyan, 421 F.3d
at 69 (“[A] finding that violence is localized supports a determination that
the violence does not constitute persecution.”). The applicant may receive
effective government protection by relocating within their home country,
where the attitudes of local authorities may be different.
As Attorney General Sessions noted,
An immigration judge, “in the exercise of his or her discretion, shall deny the asylum
application of an alien found to be a refugee on the basis of past persecution” if it is
“found by a preponderance of the evidence” that “the applicant could avoid future
persecution by relocating to another part of the applicant’s country of
nationality, . . . and under all the circumstances, it would be reasonable to expect the
applicant to do so.”

Matter of A-B-, 27 I&N Dec. at 344–45 (quoting 8 C.F.R.
§ 1208.13(b)(1)(i)(B)). This requirement reflects the Board’s longstanding
view that the asylum “analysis must still consider whether government
protection is available, internal relocation is possible, and persecution
extends countrywide.” Matter of M-E-V-G-, 26 I&N Dec. 227, 243 (BIA
2014).

III.
To establish eligibility for asylum, an applicant must show a nexus
between past or feared future persecution and one of the protected grounds
(race, religion, nationality, membership in a particular social group, or
207

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

political opinion). See 8 U.S.C. § 1158(b)(1)(A); see also 8 U.S.C.
§ 1101(a)(42)(A) (defining a refugee as one who has suffered or has a
well-founded fear of persecution “on account of” a protected ground). This
requires proof that the persecutor knew or believed that the applicant had one
of these protected characteristics, and that knowledge or belief motivated the
persecutors’ harmful actions against the applicant. INS v. Elias-Zacarias,
502 U.S. 478, 482 (1992). Concerned with how this standard was being
applied in cases in which the alleged persecutor had more than one plausible
motive for harming the victim, Congress enacted the REAL ID Act of 2005,
Pub. L. No. 109–13, 119 Stat. 302, “to create a uniform standard” for
assessing motivation. Matter of N-M-, 25 I&N Dec. 526, 531 (BIA 2011)
(citing H.R. Rep. No. 109-72, at 163 (2005) (Conf. Rep.)). An
accompanying congressional committee report specifically noted that Ninth
Circuit cases requiring only that the applicant’s persecutor was motivated “at
least in part” by the protected ground had “‘undermined a proper analysis of
mixed motive cases.’” Id. (quoting H.R. Rep. No. 109-72, at 163). To
address these concerns, the REAL ID Act clarified that the alien’s protected
characteristic must be “at least one central reason for persecuting the
applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added).
In one of the first major cases to reach a court of appeals after the REAL
ID Act, the Ninth Circuit held that a central reason is “one that is ‘primary,’
‘essential,’ or ‘principal,’” and that “represents more than a mere ‘part’ of a
persecutor’s motivation,” Parussimova v. Mukasey, 555 F.3d 734, 740 (9th
Cir. 2009) (considering the ordinary and natural meaning of “central”), and
observed that “the REAL ID Act places a more onerous burden on the asylum
applicant” than the one that the Ninth Circuit had previously applied, id.
at 740. Because “[a] ‘central’ reason is a reason of primary importance to
the persecutors, one that is essential to their decision to act,” id. at 741, the
Ninth Circuit agreed with the Board that “the protected ground cannot play
a minor role in the alien’s past mistreatment or fears of future mistreatment,”
id. (quoting Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007)).
In Matter of N-M-, the Board adopted this standard, holding that: “In cases
arising under the REAL ID Act . . . an alien must demonstrate that the
persecutor would not have harmed the applicant if the protected trait did not
exist.” 25 I&N Dec. at 531 (citing Parussimova, 555 F.3d at 741).
In subsequent cases, the Board refined these observations into a
two-pronged test for determining whether a protected ground is “one central
reason” for an asylum applicant’s persecution. To establish the necessary
nexus, the protected ground: (1) must be a but-for cause of the wrongdoer’s
act; and (2) must play more than a minor role—in other words, it cannot be
incidental or tangential to another reason for the act. See Matter of L-E-A-,
27 I&N Dec. 40, 43–44 (BIA 2017) (“Matter of L-E-A- I”), aff’d in relevant
208

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

part, 27 I&N Dec. 581, 584–85 (A.G. 2019) (“Matter of L-E-A- II”). It is
not sufficient for the applicant to establish simply that a particular social
group exists, and that the members of that group experienced harm. Matter
of L-E-A- I, 27 I&N Dec. at 45.
In Matter of L-E-A- I, the Board explained that if the wrongdoer has no
animus against the protected characteristic, and the only significance of the
protected characteristic to him is as a means to an end, then the protected
characteristic is only “incidental” to the wrongdoer’s motivation. 27 I&N
Dec. at 45–46. In that case, a cartel targeted the applicant because he was a
member of his family, but only because it wanted to use his father’s store to
sell drugs. The applicant sought asylum, relying on a particular social group
of his father’s immediate family. But the evidence did not show that the
cartel had “any animus against the family or the [applicant] based on their
biological ties, historical status, or other features unique to that family unit.”
Id. at 46–47. The Board held that “the fact that a persecutor targets a family
member simply as a means to an end is not, by itself, sufficient to establish a
claim, especially if the end is not connected to another protected ground.”
Id. at 45; see also Gonzalez-Posadas v. Att’y Gen. U.S., 781 F.3d 677, 686
(3d Cir. 2015) (holding that persecutors’ use of homophobic slurs against an
applicant who claimed asylum on the basis of his sexual orientation did not
satisfy the nexus requirement because “the abusive language was a means to
an end—namely cowing [the applicant] into paying them off or joining their
gang”). In other words, the applicant’s status as a member of his father’s
immediate family may have been a but-for cause of the harm he suffered, but
it was only incidental to the persecutor’s motivation, not a “central” reason
for it.
In mixed-motive cases, the Fourth Circuit (where this case originated) has
applied a broader standard than the Board or its sister circuits. See Matter of
L-E-A- I, 27 I&N Dec. at 46 n.3 (recognizing a potential divergence between
the Fourth Circuit’s and the Board’s nexus jurisprudence). The Fourth
Circuit asks whether the protected characteristic, even if intertwined with
another motive, is “why [the applicant], and not another person, was
threatened” or harmed. Alvarez Lagos v. Barr, 927 F.3d 236, 250 (4th Cir.
2019). Even if the protected characteristic is only used opportunistically, the
Fourth Circuit appears to believe that a causal relation is sufficient to
establish nexus as a matter of law. Id. at 250–51. As summarized recently
by the Fourth Circuit:
A sufficient nexus exists where membership in a particular social group is why the
applicant, rather than some other person, is targeted for persecution. This principle
applies whether the persecution is motivated by freestanding animus against the
group, or by some other motive like gang recruitment, extortion, or revenge. Rather
than focusing on the persecutor’s reasons for targeting the group, we ask whether

209

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

membership in the group explains the decision to target the applicant instead of
someone else.

Perez-Morales v. Barr, 781 F. App’x 192, 196 (4th Cir. 2019) (internal
citations omitted).
The Fourth Circuit’s recent interpretation of the INA’s nexus requirement
significantly departs from the standard articulated by the Board, and earlier
precedent of the Fourth Circuit, and it would essentially eliminate the second
prong of the Board’s test. Under the Fourth Circuit’s recent precedents, it
appears to be sufficient for the applicant’s protected status to be a but-for
cause of the harm she suffers, regardless of whether that status is only
incidental or tangential to another reason.
For instance, in
Zavaleta-Policiano v. Sessions, 873 F.3d 241, 244 (4th Cir. 2017), the Fourth
Circuit reviewed a Board decision ordering an asylum applicant removed to
El Salvador because she failed to show persecution on account of her family
membership. Although the applicant testified that a Salvadoran gang had
threatened and harassed her because of her membership in the Policiano
family, the Board held that she failed to establish that the gang’s threats were
motivated, as one central reason, by her family ties. Id. at 246. Relying on
the extortion notes that the gang sent to the applicant which indicated no
evidence of animus against the applicant’s family, the Board affirmed the
immigration judge’s finding that the gang was motivated by its general desire
to terrorize society as a means of obtaining greater influence and power in
the region. Id. at 248.
The Fourth Circuit reversed, beginning its nexus analysis with the
mistaken premise that the Board had required that the applicant prove that
“the gang’s threats were ‘exclusively’ motivated by her family ties.” Id.
at 250. But this misconstrues the Board’s nexus analysis. In its first major
case considering the new asylum provisions in the REAL ID Act, the Board
expressly concluded that “aliens whose persecutors were motivated by more
than one reason continue to be protected under section 208 of the [INA] if
they can show a nexus to a protected ground.” Matter of J-B-N- & S-M-, 24
I&N Dec. at 213 (emphasis added). Nevertheless, the Fourth Circuit
concluded that the Board erred because the applicant’s membership in the
Policiano family was a but-for cause of the harm she suffered; her
“relationship to her father is why she, rather than some other person, was
targeted for extortion.” Zavaleta-Policiano, 873 F.3d at 250. The Fourth
Circuit opinion thus appears to read the “at least one central reason”
requirement to allow any but-for cause of harm to qualify as a central reason,
regardless of whether that cause is only incidental or tangential to the
wrongdoer’s actual motivation. But see Quinteros-Mendoza v. Holder, 556
F.3d 159, 164 (4th Cir. 2009) (citing with approval Board precedent that “the
REAL ID Act requires a protected ground to be the central reason or even a
210

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

dominant central reason for persecution, only that it cannot be an ‘incidental,
tangential, superficial, or subordinate’ reason” (quoting Matter of J-B-N- &
S-M-, 24 I&N at 214)).
I believe that the Fourth Circuit’s recent interpretation of “one central
reason” is not the best reading of the statutory language. Before the REAL
ID Act, the INA already required that an alien establish that she satisfies the
definition of a refugee, which requires persecution to be “on account of” the
alien’s protected status, 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A) (2005).
As the Supreme Court recognized, statutory phrases such as “on account of,”
“because of,” or “results from” all require but-for causation. See Univ. of
Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 351–57 (2013) (“because” in
Title VII of Civil Rights Act of 1964 requires plaintiffs to establish retaliation
claims according to traditional principles of but-for causation); Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (treating “because of” and “on
account of” as equivalents, which entail but-for causation); see also Burrage
v. United States, 571 U.S. 204, 212 (2014) (“Where there is no textual or
contextual indication to the contrary, courts regularly read phrases like
‘results from’ to require but-for causality.”). But-for causation is “the
minimum requirement for a finding of causation.” Burrage, 571 U.S. at 211.
Thus, in the asylum context, the phrase “on account of” in the INA’s
definition of refugee may require that an applicant’s protected status be a
but-for cause of the applicant’s persecution.
In the REAL ID Act, however, Congress layered on the additional
requirement that an alien show that her protected status is “at least one central
reason for persecuting the applicant.” See 8 U.S.C. § 1158(b)(1)(B)(i).
I believe that the best way to read this new requirement is that it requires
more than but-for causation. To conclude otherwise, as the Fourth Circuit
appears to do, would render the REAL ID Act’s additional language mere
surplusage. This is why the Board established a two-pronged test for proving
nexus: the applicant’s protected status must be both a but-for cause of her
persecution and it must play more than a minor role that is neither incidental
nor tangential to another reason for the harm or a means to a non-protected
end. See Matter of L-E-A- I, 27 I&N Dec. at 43–44.
My conclusion that this reflects the better interpretation of the REAL ID’s
Act’s “one central reason” requirement is further supported by the fact that
the Board’s test generally accords with a much greater swath of Federal court
of appeals precedent than does the Fourth Circuit’s approach. Other circuits
have taken an approach similar to that of the Board, declining to find the
necessary nexus when the alien’s protected status—despite being a but-for

211

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

cause of the harm she suffered or fears—is only incidental to the wrongdoer’s
primary motivation. 4
For these reasons, I conclude that the two-pronged test articulated by the
Board in Matter of L-E-A- I is the proper approach for determining whether
an asylum applicant has satisfied the nexus requirement in mixed-motive
cases.
4

See, e.g., Reyes Almendarez v. Barr, 817 F. App’x 35, 40 (6th Cir. 2020) (“Petitioners
fail to show that the familial connection was at least one central reason for persecuting
them, as opposed to, for instance, the gang’s actions being a result of its general, criminal
goal of enacting revenge on one who reports gang activities to the police. Put differently,
harming Lidia’s family was a means to achieve some other goal, not an end in itself.”
(internal quotation marks and citation omitted)); Zapata Suquilanda v. Att’y Gen. U.S., 816
F. App’x 723, 725 (3d Cir. 2020) (citing Matter of L-E-A- II and reasoning that family
membership was not a central reason, where it was just a means to an end of gaining land);
Contreras-Mejia v. Barr, 815 F. App’x 694, 699 (4th Cir. 2020) (per curiam) (“[T]he
record illustrates that Contreras’s past persecution was linked only to his refusal to join the
MS-13 gang, and not to his family membership.”); Ferreyra v. Barr, 962 F.3d 331, 338
(7th Cir. 2020) (“The evidence must show that family membership was the motivation for
the persecution . . . . The fact that [Ferreyra’s] membership in the family may have made
him more accessible is not sufficient.”); Gonzales-Veliz, 938 F.3d at 225, 234 (substantial
evidence supported finding that applicant’s ex-partner harmed her as retribution for suing
him for child support, not because of her status as a Honduran women who was unable to
leave a relationship); Rivas v. Sessions, 899 F.3d 537, 542 (8th Cir. 2018) (“The evidence
established only that gang members persecuted Rivas because she was a witness to her
brother’s shooting, was one of the last people to see him before he went into hiding, and
had information concerning his whereabouts. The record does not compel a conclusion
that family relationship—independent of these other factors—was a central reason for
persecution.”); Ruiz-Escobar v. Sessions, 881 F.3d 252, 260 (1st Cir. 2018) (affirming
holding of no nexus between family and persecution where the evidence showed that “Los
Cachiros sought to obtain the Ruiz family’s land, not that the narcotraffickers had a
continuing interest in harming the Ruiz family once they gained possession of that land.”);
Reyes v. Sessions, 750 F. App’x 656, 660–61 (10th Cir. 2018) (even assuming particular
social group of “females in El Salvador” was cognizable, gender was “tangential and even
subordinate” to the more important reason for the abuse—the applicant’s vulnerability);
Cruz v. U.S. Att’y Gen., 746 F. App’x 869, 872 (11th Cir. 2018) (per curiam) (“The fact
that a persecutor targets a family member as a means to an end is not, by itself, sufficient
to establish a claim, especially if the end is not connected to another protected ground.”).
But see Gonzalez Ruano v. Barr, 922 F.3d 346, 356 (7th Cir. 2019) (husband’s family
relationship to his wife was “the reason he, and not someone else, was targeted” (citing
Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015))); Ayala v. Sessions, 855
F.3d 1012, 1020 (9th Cir. 2017) (extortion could constitute persecution on account of a
family, where criminals selected the applicant for extortion because her family owned
hotels); Paloka v. Holder, 762 F.3d 191, 198 (2d Cir. 2014) (“[B]eing a victim of a crime
or even being a likely target for criminal opportunistic behavior does not necessarily
preclude the existence of a valid asylum claim if the claimant would likely be targeted
because of her membership in a sufficiently defined social group.”).

212

Cite as 28 I&N Dec. 199 (A.G. 2021)

Interim Decision #4006

IV.
As explained above, I understand that existing case law in certain circuits
may conflict with my conclusions that (1) Matter of A-B- reiterated and did
not change the legal standard for determining when “persecution” by third
parties may be attributed to the government; and (2) more than but-for
causation is required to show that the alien’s protected characteristic is “at
least one central reason” for the persecution. In my view, however, those
decisions were made without the benefit of clear and controlling
interpretations of the statutory “unable or unwilling,” “persecution,” and
“one central reason” requirements. See Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (“A court’s prior
judicial construction of a statute trumps an agency construction otherwise
entitled to Chevron deference only if the prior court decision holds that its
construction follows from the unambiguous terms of the statute and thus
leaves no room for agency discretion.”). The statutory language of the INA
and the REAL ID Act do not unambiguously resolve these issues. See, e.g.,
Grace, 965 F.3d at 897 (“persecution” is ambiguous); Sanchez v. U.S. Att’y
Gen., 523 F. App’x 682, 684 (11th Cir. 2013) (per curiam) (phrase “one
central reason” is ambiguous). The Attorney General “has primary
responsibility for construing ambiguous provisions in immigration laws” and
his “reasonable construction” of such ambiguous terms “is entitled to
deference” under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984). Matter of A-B-, 27 I&N Dec. at 326. With this in
mind, I have exercised my discretion in choosing what I view as the best
interpretation of the statute.
I remand this matter to the Board to issue a new opinion consistent with
this opinion.

213


Interim Decision #1856

MAI-Luc

or

PEREZ

In Visa Petition Proceedings
A-18187416
Decided by District Director March, 22, .1968
Benenclary, who has a B.A. degree with a major in journalism and more than 3
years experience as a journalist, is a qualified journalist within the meaning

of sections 101(a) (32) and 203 (a) (3) of the Immigration and Nationality Act,
as amended.

The petition was filed by the beneficiary for third preference classification as a member of the professions based upon his qualifications as
a journalist.
He is married, a native and citizen of the Philippines, presently
residing with his spouse in the Philippines. In 1961, following four
years of study, he was graduated from San Beda College, Manila,
Philippines, with a bachelor of arts degree. His major field of study
was in journalism, his minor field was in English. He was employed
from July 1964 to date, by the Department of Agriculture and Natural

Resources, Quezon City, Philippines, as an Information Writer. His
duties include that of acting copy editor of the Philippine Journal of
Animal Industry; article research; and the writing of leaflets, pamphlets, brochures, press releases, and other publications for the
Department.
Section 203 (a) (3) of the Act, as amended, relates to issuance of immigrant visas "to qualified immigrants who are members of the professions, or who because of their exceptional ability in the sciences or
the arts will substantially benefit prospectively the national economy,
cultural interests, or welfare of the United States." The term "profession" is defined in section 101 (a) (32) of the Act as including but
not being limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary schools, colleges, academies, or
seminaries.
The Occupational Outlook Handbook, 1966-67 edition, published by
the Department of Labor Statistics, United States Department of
Labor, contains on pages 231-234, a discussion of the employment of
701

Interim Decision *1856
persons in newspaper writing occupations. In discussing the nature,
training and qualifications for this work, the handbook includes the
following statements:
Specialized reporters, who are well-versed in a subject matter field as well as
in writing, are increasingly interpreting and analyzing the news in subject
fields such as medicine, politics, science, education, business, labor, and religion.
Although talented writers with little or no academic training beyond high
school sometimes become reporters, an increasing number of newspapers will
consider only applicants with college education; graduate work is also becoming
increasingly important Some editors prefer those with a degree in journalism;
other consider a degree in liberal arts as equally desirable.
Young people who wish to prepare for newspaper work through a liberal arts
curriculum should take English courses that include some journalism, as well as
such subjects as sociology, political science, economics, history, and psychology.
%%vie who look forward to becoming technical writers, or to reporting in a special such as science, should concentrate on course work in their subject matter
areas to the maximum extent possible.
Some experienced reporters advance to positions such as columnist, correspondent, or editor ; but these positions represent the top of the field and eompe.
tition for them is keen.

Section 212(a) (14) of the Immigration and Nationality Act, as
amended, provides that third preference aliens must be issued a certification by the Secretary of Labor to the effect that qualified workers
in the "United States are unavailable, and that the alien's employment
would not have an adverse effect on wages and working conditions of
workers similarly employed in this country. Under 8 CFR 2042(f)
the Secretary of Labor's determination with respect to the issuance of
the required certification is obtained before any third preference petition may be approved. In view of his degree, and because his major
field of study was not one listed in Schedule A, Group II, 29 CFR,
his credentials were referred to the Department of Labor for consideration of issuance of the required certification under Schedule C, Group
II, 29 CFR. The certification was issued in the instant case, under
Schedule 0, Group II, 29 CFR, indicating that in the Department of
Labor's opinion the beneficiary qualified as a professional person in
his field.
Although formerly, and possibly even today, a talented, experienced
person without a degree in journalism could find employment in that
field, it appears the opportunities for such persons are becoming less
and less. From the foregoing it is -apparent that a baccalaureate degree
is now the accepted educational requirement for entry into the field of
journalism, and consequently that occupation, meeting the high educa
tional level of other professions, likewise qualifies as a professional
occupation.

702

Interim Decision #1856
The record reflects that the beneficiary possesses a bachelor of arts
degree, with a major field of study in journalism, and a minor field in
English, both fields being highly desirable for a journalist, and he has
had more than three years of experience as a journalist. We concur
in the opinion of the Department of Labor concerning his qualification
for classification as a professional person under section 203(a) (3) of
the Act.

ORDER: It is ordered that the petition to accord the beneficiary
third preference classification be and hereby is approved.

703


Interim Decision 4E2671

MATTER

OF

BAUTISTA

In Visa Petition Proceedings
A-21307895

Decided by Board Septemixr 12, 1978
(1) The marriage of the petitioner and the beneficiary, second cousins, will be recognized
for Immigration purposes only if it is valid under the law of the Philippines, the place of
celebration.
(2) Article 81 of the Civil Code of the Philippines proscribes marriage between collateral
relatives within the fourth civil degree. Since the beneficiary, the child of the petitioner's cousin, is related to the petitioner in, the fifth degree, her marriage to the
petitioner is not proscribed by Article 81 of the Philippine Code and will be deemed
valid for immigration purposes. Compare Matter of Dela Cruz, 14 I. & N. Dec. 686 (BIA
$.974).

ON BEHALF OF PETITIONER: Pro se
BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

The petitioner has appealed from the decision of the Immigration
Officer, dated April 20, 1978, denying the visa petition filed on behalf of
the beneficiary as his wife under section 203(a)(2) of, the Immigration
and Nationality Act, 8 U.S.C. 1153(a)(2). The appeal will be sustained:
The petitioner, a 32-year-old native of the Philippines, was admitted
to the United States as a lawful permanent resident on November 29,
1977. On December 18, 1977, he married the beneficiary, a 22-year-old
native and citizen of the Philippines. On December 29, 1977, the petitioner filed a visa petition, seeking to accord his wife second preference
status for the issuance of an immigrant visa.
In his decision denying the visa petition, the Immigration Officer
round that the marriage between the petitioner and the beneficiary
would not be recognized for immigration purposes because they were
related within the degree of kinship prohibited from marrying under
Philippine Law. In reaching this conclusion, the Immigration Officer
1-died upon Article 81 of the Civil Code of the Philippines, which pro"ides:
Marriages between the following are incestuous and void from their performance,
whether the relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree;
602

Interim Decision #2671
***

(2) Between collateral relatives by blood within the fourth civil degree.

The Immigration Officer found that the petitioner's marriage to the
beneficiary was proscribed under subsection 1 of Article 81. However, it
appears from the record that the parties are collateral relatives 1, and
their relationship should be governed by subsection 2 of Article 81,
which proscribes marriages within the fourth civil degree.
The general rule governing recognition of marriages for immigration
purposes is that the validity of a marriage is governed by the law of the
place where the marriage was celebrated. Matter of Arenas, Interim
Decision 2343 (BIA 1975). The petitioner's marriage to the beneficiary,
therefore, is valid for immigration purposes only if it would be valid
under Philippine Law, the law of the place of celebration.
In computing the degree of the relationship between the parties in
this case, we look to the rule of the civil law, as Article 81 of the
Philippine Code proscribes marriages between collateral relatives
within the fourth civil degree. The fourth degree of relationship includes
first cousins, great-uncles and great-aunts. Children of a cousin are
related in the fifth degree. See 23 Am. Jur. 2d Descent and Distribution
ยง 48. Since the beneficiary in this case, the child of the petitioner's
cousin, is related to the petitioner in the fifth degree, her marriage to
the petitioner is not proscribed by Article 81 of the Philippine Code, and
will be deemed valid for immigration purposes. Compare Matter of Dela
Cruz, 14 I. & N. Dec. 686 (BIA 1974). We will, therefore, sustain the
appeal filed in this case, and approve the visa petition filed on the
beneficiary's behalf.
ORDER: The decision of the Immigration Officer is reversed, and the
visa petition is approved.

The petitioner is the first cousin of the beneficiary's mother, thereby making the
relationship between the parties that of second +=blob. In his Notice of Appeal, the
petitioner incorrectly categorizes his relationship to his wife as that of an uncle and niece.

603