Interim Decision #1247

MATTER OF

Box

In DEPORTATION Proceedings
A.-11068150
Decided by Board September 5,1962
(1)

Where respondent, a native and citiaon of Haiti, who, after having been

denied an immigrant visa, entered the United States in 1957 using an alias
and who, to escape physical persecution upon being returned to Haiti in 1958,
assumed a fictitious identity in which he was married, in which he secured
a delayed birth certificate with which ho obtained a passport and visa for

entry to Nassau where, in such assumed identity, he lived for 11/2 years and
made application in 1960 for a visa to come to the United States, his willful
misrepresentations as to place and date of birth, parentage, marital status,
prior residence, and use of an alias were not material under section 212(a) (19)

of the Immigration and Nationality Act because on the true facts a ground
of inadmissibility would not have been revealed nor would inquiry have resulted
in a proper determination of excludability. cf. Matter of Sarkissian, Int.
Dec. No. 1253.
(2) Where in a deportation proceeding a no passport charge under section
212(a) (20) of the Immigration and Nationality Act is linked to a visa charge
under section 212(a) (19) of that Act by the common ground of misrepresentation as to identity and the visa is found to have been validly issued despite the
existence of misrepresentations as to identity, the passport charge is merged
with the visa charge and falls.
CHARGES :

Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (I)]—Excludable at
entry under section 212(a) (19) of the Act of 1952 as an alien who
procured visa by fraud or willful misrepresentation of a material
fact.
Lodged : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Excludable
at entry under section 212(a) (20) as an alien immigrant not in
possession of a valid unexpired passport.

The examining officer has filed this appeal from the order of the
special inquiry officer terminating proceedings. The appeal will be
dismissed.
The respondent a 33-year-old married male, a native and citizen of
Haiti, was admitted to the United States for permanent residence on
July 20, 1960, upon surrender of a. nonquota immigrant visa, issued to
him on July 14, 1960, at Nassau, Bahamas. The Service alleges that
87

Interim Decision #1247
this visa was obtained by fraud because in obtaining it, respondent wilfully failed to furnish truthful information concerning material matters. The Service also contends that the respondent was not in possession of a valid passport when he applied for admission.
Respondent's testimony, which is uncontradicted, and which, as
far as this record shows, was given after he had voluntarily coma to
the Service, reveals the following: The respondent joined the army
in Haiti in 1949; he reached the rank of sergeant. In 1957, one Daniel
Fignole came to power by revolutionary means; within a few months,
he was arrested by the army and sent to exile. At the same time, respondent who was known to be a supporter of Fignole was arrested,
jailed, and discharged from the military service with orders to leave
the city. Respondent then attempted to obtain a visa to come to the
United States for permanent residence but was refused because he
did not have a sponsor. The period of a year and a half following the
attempt, respondent first alleged, had been spent in Haiti hiding;

however, he later, voluntarily informed the Service that he had spent
the time in the United States. He revealed that in September 1957,
using the alias Albert Bethol, he had flown to the United States
ostensibly in transit to Canada, but actually for the purpose of staying
in the United States. Respondent did manage to stay in the United
States until December 1958, when he was apprehended and placed in
the custody of the transportation company for return to Haiti.'
After this return, respondent went into hiding; he decided he must
escape because of the danger he was in. In February 1959, he secured
a delayed certificate of birth showing the birth of one Claude Charles,

a name he made up. Respondent used the birth certificate to secure
a Haitian passport and obtained a visa for entry into Nassau, Bahamas. Before leaving, he married using the name of Charles, and
then went to Nassau where, still using the name Charles, he obtained
employment. His wife joined him in Nassau on a visit. Two children were born of the union. One child is two years old, the other
a few months more than a year. The wife and children live in Haiti
where the wife uses the name Charles.
After a year and a half in Nassau, Bahamas, respondent applied
for a visa to come to the United States for permanent residence.
Application was made in the name of Claud Charles, and information
given about Charles to correspond with that given when respondent
applied for the delayed certificate of birth. Thus, falsely shown were
the city and date of respondent's birth, his parents' names, and the
2 It is assumed that no visa was involved since respondent was turned over to
the transportation company for return instead of being placed under deportation
proceedings (22 F.R. 9783 (1957) (now found in 8 O.F.R. 212.1(e) and 214.2
(e) (1) (1962 Supp.) ).

88

Interim Decision #1247
fact that his father was living. Furthermore the visa failed to show•
the existence of a wife and a child, residence in the United States, and
the use of an alias. Respondent stated that he assumed the identity
of Claud Charles only to escape from Haiti to Nassau, but that he
used the same name when applying for a visa both because it had
become the name by -which he was known and because he felt that if
he had told the truth he would have had trouble in getting a visa to
come to the United States.
Using the standards as to materiality laid down by the Attorney
General in Matter of B— an B—C—, Int. Dec. 1168 — standards
which place upon the applicant for the visa, the burden of establishing
that he was not excludable and that inquiry would not have resulted
in a proper determination that he was excludable the special inquiry officer held that the respondent had established that there were

no grounds upon which he was excludable and that had consul been
in possession of the actual facts, it did. not appear that a proper
determination of excludability could have been made upon them
or upon the results of any investigation which might have been
completed.
The examining officer maintains that respondent obtained his visa
by concealment of material facts concerning his true name, residence
in the United States and other matters, and by concealment of the fact
that he was excludable under section 212(a) (20) of the Immigration
and Nationality Act as one who was without a valid passport.
At oral argument, counsel for respondent contended that had the
true facts been known, inquiry would not have placed respondent in an
excludable class. Counsel points out that despite the misrepresent&
don on the visa application, true nationality was revealed by respond-•
ent, and that the misrepresentations were made by respondent not to
defraud the United States but to save his life which was threatened
by political persecution. Counsel points out that the name in which
the respondent received his -visa had been one used for over a year.
Counsel cites Mama v. U.S., 364 U.S. 350, 355;
ex rel. Leibowitz
v. Sehlotfeldt, 94 F. 2d 263 (7th Cir. 1938) ; and Matter of M-1?—,

Int. Dec. 1203.
We believe the special inquiry officer correctly disposed of this case.
If both the visa and the passport had reflected the truth concerning
respondent's place of birth, date of birth, parentage, prior residence,
and uses of aliases, there would have been no ground of inadmissibility
revealed nor would inquiry on the basis of the true facts have resulted
in a proper determination of excludability.

The examining officer contends that had an investigation been conducted, information might have been forthcoming which would have
raised a question as to respondent's admissibility. The Attorney Gen89

Interim Decision #1247
eral his carefully pointed out that the "theoretical possibilities" of
what an investigation made at the time of the application might have
uncovered are not sufficient to sustain a charge. The Attorney General

stated that the "available facts" must "indicate the existence of a substantial question as to the alien's eligibility to enter the United States"
before the impairment of investigative opportunity may operate to bar

an alien's entry (Matter of 8— and B—C—, supra, at p. 8). In the
absence of available facts here indicating the existence of a. substantial
question as to respondent's eligibility to enter and in view of the failure
of the Government to suggest the existence of a ground of exclusion
although afforded a reasonable opportunity for adequate investigation,
we do not believe it proper to hold that the impairment of investigation
here resulted in the obtaining of the visa by fraud.

The examining officer is of the belief that the respondent obtained
an advantage to which he would not have been entitled had the true
facts been lmown. We are aware of no bather to respondent's admission under the immigration laws which was concealed by his misrepresentations.
At oral argument, the Service Representative contended section
402 (a) of the Immigration and Nationality Act which amends 18
U.S.C. 1546 should be used as a guide in evaluating the misrepresentation of identity here. Materiality as to the use of a. false name must be
judged by the standards carefully laid down by the Attorney General
rather than by use of a comprehensive penal provision which concerns
many unlawful acts and which has not as yet been applied in deportation proceedings to determine whether a misrepresentation is material.
The Service Representative relies upon comment in the footnote on
page six of Matter of 5— and B—C—, Lit. Dec. 1168, which raises the
question as to whether a visa. issued in the name of another is a valid
visa under section 212 (a)(20) of the Act. Whatever may be the
meaning of this footnote, we do not believe it is applicable to the situation in. the instant Can since the respondent received the visa in a name
which had become his own by use over a substantial period of time.
The Service Representative relies upon Matter of 8—, Int. Dec. 1190.
Matter of 8—, did not concern a passport nor did the Attorney General
express an oninion there on the issue before us.
The service contends that section 212(a) (19) of the Act must be
considered as a separate and distinct count in no way dependent upon
the concealment of a ground of deportation and that even if the visa
had been valid, the passport charge could still be sustained because it
had been issued to a nonexistent person. The Service Representative
cities U.S. v. Rodriguez, 182 F. Supp. 479, 484 (S.D. Cal., 1960), aff'd
sal, num. Roc7107. U.S., 288 F. 2d 545 (9th Cir. 1961) certiorari denied
366 U.S. 948, and De Lucia v. Flagg, 297 F. 2d 58 (7th Cir. 1961)

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Interim Decision #1247

certiorari denied 369 U.S. 837, in support of his contention that the
passport is invalid.
On this issue, counsel for respondent points out that respondent used
his own photograph on the passport and revealed his true identity
in that sense, that the passport did show the country of birth and
origin, that it is not shown that the passport is invalid for return to
Haiti and that presumptive credit should be given to the passport.
As to the passport charge, the special inquiry officer held that the
Attorney General had ruled that a misrepresentation as to identity was
not necessarily material and since in the instant case the misrepresentation as to identity was not in fact material, it should not make respondent deportable. Otherwise, the special inquiry officer held, identity
would always become material although the Attorney General had
ruled to the contrary. We agree with the special inquiry officer. A
charge based upon. possession of a passport in an assumed name may
or may not be material. If it is linked to a visa charge and the visa
is found to have been validly issued despite the existence of misrepresentations as to identity, then the passport charge should be merged
with it and should fall. The essential purpose of the passport is to
insure the return of an alien to a foreign country if for some reason
he is not admitted on his visa. Since the visa is valid and admission
will not be challenged, the existence of a valid passport becomes a
matter of lesser importance. (See U.S. ere rel. Leibowitz v. Schlof &Lt.,
94 F. 2d 263 (7th Cir. 1936), Matter of 31—R—, Int. Dec. 1203.) In.
fact, there is nothing in this record to show that the Government of
Haiti would not have honored the passport.
The Service Representative contended that Leibowitz no long r
applies because of the present existence of specific laws making °the
procurement of a visa by misrepresentation a matter of fraud (sections 212 (a) (19) of the Act and 402(a) of the Act). The existence
of section 212 (a) (19) of the Act was considered by the Attorney
General, in establishing the standards in misrepresentation cases; criminal provisions similar to those found in section 402(a) of the Act
have been in existence since 1924 (see Act of May 26, 1924, c. 190, sec.
22, 43 Stat. 165).
Rodriguez, cited by the service, is not apposite. It concerned a
matter of jurisdiction in a criminal case. De Lucia concerned a person who was inadmissible to the United States under his true identity
and who, moreover, had not lived under the name in which the passport was issued. Furthermore, De Lucia made use of the false name
to avoid the immigration laws, while respondent adopted false name
to escape from physical persecution.
ORDER: It is ordered that the appeal of the examining officer be
and the same is hereby dismissed.
.

91


Interim Decision #2860

MATTER OF THORNHILL
In Visa Petition Proceedings
A-22738718
Decided by Commissioner March 17, 1981
(1) Sixth-preference immigrant status under section 203(a)(6) of the Immigration and
Nationality Act, 8 U.S.C. 1153(a)(6), requires that the beneficiary have a permanent
employment offer from the petitioner.
(2) A petitioner, who is a nonimmigrant temporary worker as defined in section 101(a)
(15)(H)(i) of the Act, 8 U.S.C. 1101(a)(15)(H)(i), is not competent to offer permanent
employment to an alien beneficiary for the purpose of obtaining an immigrant visa for
the beneficiary under section 203(a)(6) of the Immigration and Nationality Act.
ON BEHALF OF-PETITIONER: Pro se

This matter is before the Commissioner on an order of certification
under 8 C.F.R. 103.4. The Regional Commissioner (Acting) upheld the
revocation of the visa petition to accord sixth-preference status to the
beneficiary under section 203(a)(6) of the Immigration and Nationality
Act, 8 U.S.C. 1153(a)(6), for issuance of an immigrant visa on the basis
of her occupation as a live-in domestic service worker. The certification
is predicated on the need to modify the Regional Commissioner's decision so that it will be suitable for designation as a precedent.

The petitioner is a private individual who heads a household of four,
including two young children. He is employed by Monsanto Company
and earns approximately $26,000 per year. The petitioner is a native
and citizen of Guyana. His status in the United States is that of nonimmigrant temporary worker of distinguished merit and ability. He last
entered the Unite'd States on May 21, 1978, and was authorized to
remain until January 31, 1980. Since this petition was filed, his employer

has transferred him to California. The petitioner is presently living and
working in Corona, California, still as a nonimmigrant.
The beneficiary is a 46-year-old native and citizen of Guyana. She was
employed by the petitioner as a housekeeper while in Guyana from
December 1970 through February 1978, which was until the month that
the petitioner and his family came to the United States in connection
with his temporary assignment. The petitioner now seeks to re-employ
34

Interim Decision #2860
the beneficiary as a domestic worker in his household at a salary of
$6,240 per year, plus room and board.
On September 21, 1979, the petitioner applied for certification from
the Department of Labor that the employment of the beneficiary as a
domestic in the St. Louis area at a salary of $3.00 per hour would
neither displace local workers looking for similar employment nor depress
the wages or working conditions of other domestic workers in that area.
This certification was granted on Octobez.29, 1979. Approval of the
petition would result in according the beneficiary a priority date for
sixth-preference immigrant visa issuance of September 21, 1979.
It is noted that the certification was granted only after the petitioner

established that his wife, a professional teacher, would enter the labor
market and probably earn a salary of at least $14,000 per year as soon as
the beneficiary is permitted to enter the United States and take over
housekeeping and child care duties from the petitioner's wife. This second salary would raise the petitioner's family income to $40,000 — a
level which the labor certifying official found acceptable th support a
live-in domettic worker at an expense in excess of $6,000 per year. It is
inferred from the record that the petitioner's salary alone would not
have supported such a conclusion and that the labor certification would
not have been issued absent this additional income.
The District Director approved the visa petition on December 7, 1979.
However, on May 9, 1980, he informed the petitioner of his intention to
revoke the approval on the ground that ; as the petitioner's status in the
United States was as a nonimmigrant temporary worker, he was not
entitled to offer other-than-temporary employment to the beneficiary.
The District Director, citing Matter of Sun, 12 I&N Dec. 800 (BIA
1968), concluded that the proposed employment of the beneficiary in the
United States did not qualify as employment "not of a temporary or
seasonal nature" as required by section 203(a)(6) of the Act; therefore,
she was not entitled to sixth-preference immigrant classification based
on the petitioner's job offer. The petitioner did not make a timely response

to this notice of intent to revoke the visa petition; therefore, the District
Director entered an order revoking the petition on May 28, 1980.
In appealing the revocation decision, the petitioner stated that his
employer, Monsanto Corporation, is in the process of filing for a certification for him as a first step toward according him lawful permanent
resident status in the United States. He asked that his immigrant visa
petition for the beneficiary be held in abeyance to be considered after he
acquires permanent status here; or that it be converted to a request for
temporary employment as a nonimmigrant B-1 visitor.
We are not able to grant the petitioner's requests. First, the petitioner,
as an alien in a nonimmigrant temporary worker classification, is nut
competent to create a job offer for employment for another alien which
35

Interim Decision #2860
would act as the basis for issuance of an immigrant visa to that person.
Such a job offer must be permanent in character and not of a seasonal or
temporary nature (see section 202(a)(6))_ The present status of the petitioner is that of nonimmigrant worker which by definition at section

101(a)(15)(H)(i) of the Act is temporary in that it requires him to have "a
residence in a foreign country which he has no intention of abandoning."
Thus the petitioner's present status is not settled notwithstanding his
intention to apply for permanent residence at some time in the future.
The conclusion reached in Matter of Sun, supra, applies here. Sun
found that because the status of the petitioner (in that case, an alien

under an order of deportation) was neither settled, stabilized, nor
permanent, the offer of employment to a domestic was without basis of
permanency and did not warrant approval of a visa petition to accord
immigrant status. It follows that the current visa petition having been
approved improvidently, was properly revoked.
Concerning the petitioner's second request, there is no basis in law or
regulation to allow for the holding of a petition in abeyance. Finally, this
petition may not be converted into a request for temporary worker
classification. Such status (H-2) has very different criteria for eligibility,
must be made on a separate petition I-129B, and may preclude the
designation of that job offer as one which might also accord sixthpreference status to the beneficiary at a later date.
ORDER: Appeal dismissed.

36


MATTER

or P-

In SECTION 245 Proceedings
A-6819635
Decided by Assistant Commissioner April 19, 1959
Adjustment of status—Section 245 of the 1952 act, as amended--None pro tune
exercise of section 212(d)(3) of act to legalize nonimmigrant entry—Grant
of "defector" status to cure present inadmissibility.
Alien who was inadmissible to the United States at time of nonimmigrant
entry in 1947 by reason of prior membership in Communist Party of Czechoslovakia is qualified for adjustment of status under section 245 of the act,
as amended, upon discretionary exercise none pro tune of waiver under
ocction 212(4) (3) or the act and finding of present eligibility for "defector"
status under section 212(a) (28) (I) (ii) of the act.
Airmanknot: For the benefits of section 212(a) (28)
tion cola Nation...1;4y ,so, ;MU waiver
of the Immigration and Nationality
adjustment of status under section
Immigration and Nationality Act.

(I) (11) of the Immigra-

miner section 212( d) (3)
Act, in connection with
245, as amended, of the

BEFORE TILE ASSISTANT COMMISSIONER

Discussion: The applicant is a single male, aged 58, a native of
Czechoslovakia, now stateless, whose only entry into the United.
States was at the port of New York on December 10, 1947, as a,
passenger on the SS. Queen Al (Try. He was then admitted temporarily until October 30, 1948, as a student under section 4(e) of the
immigration Act of 1924. He entered under the auspices of the
Rockefeller Foundation as a -research fellow and intended to return
to Czechoslovakia, where he owned and maintained his residence,
upon the completion of his studies. He did research work in economics at the Institute for Advanced Study, Princeton, and at
Harvard University. In February 1948, he heard of the "coup
d'emt" by the Communist, Party hi his native country, and then
decided not to return to that country.
The alien has been the subject of various proceedings before this
Service, records of which are incorporated in the current proceeding.
On October 19, 1948, he filed an application for adjustment of status
under section 4 of the Displaced Persons Act of 1948 which was
denied February 13, 1952, for the reason that he was inadmissible
under section 1(2) (C) of the Act of October 16, 1918, because of
5119

prior membership in the Communist Party of Czechoslovakia. On
December 13, 1954, a warrant of arrest in deportation proceedings
was issued on the charge that at the time of entry he was excludable
we an HEAT who had been a member of the Communist Party of
Czechoslovakia. The special inquiry officer in this order of April 11,
1955, found the charge sustained, granted voluntary departure with
an alternative order of deportation in the event respondent failed
to comply with the voluntary departure provision. The decision
became final when an appeal was dismissed by the Board of Immigration Appeals on August 4, 1955. A warrant of deportation was
issued on March 19, 1931, and the respondent phreed on nutlet, of
intended deportation to Czechoslovakia. Subject filed on October 14,
1957, an application for a stay of deportation under section 243(h)

of the Immigration end Nationality Act, alleging he world he subject to physical persecution because of his anti-Communist activity.
After interrogation, the special inquiry officer on December 27, 1957,
recommended that deportation to Czechoslovakia be withheld indefinitely, and this recommendation was approved by the Acting Regional Commissioner on March 4, 1958.
The applicant is an associate professor of economics at Ricker
College, Houlton, Maine. That institution filed a visa petition in
his behalf under section 203(a) (1) of the Immigration and Nationality Act which was approved on May 20, 1958.

Subsequent to the amendment. of

section 215 of the 1052 act by tho

Act of August 21, 1958 (72 Stat. 699), the current application was
filed. An immigrant visa appears to be immediately available to
the applicant and he has established that he is a person of good
moral character. It remains to be established whether he may be
considered to have been lawfully admitted to the United States as
a bona fide nonimmigrant and whether he is presently admissible to
the United States for permanent residence.
. His admission as a nonquota immigrant under section 4(e) of the
Immigration Act of 1924 can properly be considered an admission
as a nonimmigrant (Hatter of H , 6 I. & N. Dec. 458). He has
clearly established that, at time of entry, it was his intention to
return to Czechoslovakia. Consequently, he was a bona fide nonimmigrant at time of entry. However, he was inadmissible at that
time under the provisions of section 1(2) (C) of the Act of October
16, 1918, as amended by the Act of June 28, 1940, by reason of his
prior membership in the Communist Party of Czechoslovakia.

There

is no indication that the applicant's failure to disclose his prior
Membership when applying for a visa was willful. The ground of
inadmissibility then existing may be waived by the exercise, nuns
pro tune, of the discretionary authority contained in section 212(d)
(3) of the Immigration and Nationality Act (Matter of Al—,
303

A-10296535, Interim Decision No. 990). In view of the meritorious
factors in this case, this relief will be granted. Therefore, his admission on December 10, 1947, is found to be a lawful admission as a
bona fide nonimmigrant.
The next issue to be considered is whether the applicant can qualify for status as a defector under the provisions of section 212(a)
(28) (I) (ii) of the 1952 act, thereby removing the present ground
of inadmissibility under section 212(a) (28) (C) of the act. To be
eligible for such status the applicant must establish that he is, and
has been for at least the past five years, actively opposed to the
doctrines, programs, principles, and ideology of the Communist
Party, and it must be found that his admission into the United States
would be in the public., interest.
Throughout the proceedings before this Service, aubsequent, to
entry, the applicant has freely admitted that he voluntarily joined
the Communist Party of Czechoslovakia about February 1946; that
he paid dues and held a Party card; and that he terminated his
membership about December 1946. He has maintained, however,
that he has never believed in Communism. His testimony is to the
effect that he was a member of the Central Planning Commission in
Prague; that in 1943 President Benes had signed a pact with Russia; that following World War H Czechoslovakia was left in the
sphere of Russia ; that in 1946 the Communist Party was one of a
number of parties represented in the coalition government; that the
Communist Party of Czechoslovakia was then a nationalist party;
that the people were led to believe that this Communist Party was a
democratic party and would accomplish reforms by peaceful methods; that he believed Czechoslovakia, a highly developed country,
could proceed towards socialism in a peaceful way; and that he
further believed that by joining the Party, he could best influence
the future of the country. There was included in the deportation
record "Special Report No. 8 of the Select Committee on Communist Aggression, House of Representatives, Communist Takeover and
Occupation of Czechoslovakia," which tends to lend credence to subject's testimony.
The applicant has testified that even before he left the Communist
Party in December 1946, he was openly critical of the program of
the Party; that he wrote critical articles for which he was termed a
traitor by the Secretariat of the Party; and that his divergent views
led to his break with the Party. He states that immediately following the Communist coup in his home country, he gave intelligence
information to officials of the United States. In March 1948, he
placed himself at the disposal of the former Czechoslovakian Ambassador to the United States, a representative of "true democratic
Czechoslovakia." With his present application he presents, among
other supporting documents:
304

1. Copy of series of lectures he delivered at Wichita University entitled
"Method of Social Service which concluded with his statements that Christian culture is at stake, that America is the last stronghold of Western civilization and that time is running short.
2. Copy of a speech he delivered to a religious council at Wichita university
on January 17, 1950, on the subject, "How Can Christianity Combat Communism?"
3. Copy of the Summer 1955 issue of "Faith and Freedom, A Journal of
Progressive Religion," published at Manchester College, Oxford, England, containing his article on "Ethics in a Business Society."
4. Notes of a commencement speech he delivered at Lenox School, Lenox,
Massachusetts, in June 1957, in which he warned of the conflict between the
East and the West, and the possibility of a knockout blow to civilization.

The applicant has stated that he lias not been successful in having
articles published in the United States. He testified, however, that
whenever the opportunity arises, in his daily contacts, classrooms,
lectures and speeches, he speaks against Communism. In January
1959, he spoke to a group at the local Methodist church, comparing
Christmas in the West with the "no-Christ" Christmas in presentday Russia. He has appeared recently on WAGM—TV, Presque Isle,
Maine, on a panel discussion of the "International Look at Comparative Educational. Systems" and this panel discussion was repeated in four nearby communities.
The records of the various immigration proceedings present a
comprehensive record of the subject's activities in the United States
since his arrival in 1947. Police reports from all places in which
he has lived, and current national agency checks are negative. Independent character investigations conducted in 1949 and 1951 indicated he was definitely anti-Communist and developed no derogatory
information.
The applicant completed a four-year course in law at Charles
University in Prague in 1921 and continued hie studies in philosophy

at that university, except for one year at the University of Sorbonne,
completing the academic work for his Ph. D. degree in 1927. The
Service, in approving the visa petition, determined that his services
were urgently needed in the United States because of his high education and experience and would "be substantially beneficial prospectively to the national economy, cultural interests, or welfare of
the United States." Clearly, his admission would be in the public
interest.
It is concluded that the applicant has satisfactorily established
his present eligibility for status as a defector under section 212(a)
(28) (I) (ii) of the act.
Order: It is ordered that the ground of exclusion under section
1(2)(C) of the Act of October 16, 1918, as amended by the Act of
June 28, 1940, existing at the time of the applicant's admission at
the port of New York on December 10, 1947, be waived nuns pro
305

twee under section 212(d) (3) of the Immigration and Nationality
Act.
15 io further ordered that the application for status as a defector
pursuant to section 212(a) (28)(I)(11) of tho Immigration and Nationality Act be granted.
It is further ordered that the application for status as a permanent resident be granted.

306


Interim Decision #1349

MATTER OF ADAM)

In RESCISSION Proceedings
A-12312321
Decided by Board June 4, 1984
(1) Conviction of "aggravated embezzlement" under Article 646 and Article 61,
No. 11, of the Italian Penal Code, is conviction of a crime involving moral
turpitude and is not classifiable as a "petty offense" since the; equivalent of
tense under section 22-1210, District of Columbia Code, is "Embezzlement by
executors or other fiduciaries," punishable by a possible sentence of 10 years
in jail.
(2)

Although the above crime was committed in the United States, the record

of foreign conviction in Italy showing that it was a penal conviction is conclusive evidence of the nature thereof. Inquiry dehors the record of conviction
as to, the legal status of the tribunal which rendered the judgment of conviction is precluded, other than with rare exceptions relating to convictions in
absentia for convictions for political offenses.

The case comes forward on appeal from the order of the special inquiry officer dated February 28, 1964, ordering that the status of permanent residence in the United States granted by the Immigration and
Naturalization Service pursuant to section 245 of the Immigration and
Nationality Act be rescinded.
The record relates to a native and citizen of Italy, 51 years old, male,
who entered the United States in November 1960 at the Port of New
York on the SS "Cristoforo Colombo" and was admitted as a visitor
under section 101(a) (15) (B) of the Immigration and Nationality Act.
On January 15, 1962, he filed an application for status as a permanent
resident pursuant to section 245 of the Immigration and Nationality

Act and on March 13, 1962, the Service created a record of lawful admission for permanent residence.
On March 29, 1963, the Service instituted this proceeding under the
provisions of section 246 of the Immigration and Nationality Act to
rescind the status of permanent resident previously accorded the respondent. It contends that the respondent was convicted of a crime
involving moral turpitude which disqualifies him for the status of

permanent resident at the time it was granted to him. Inasmuch as the
768-498 66 39

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Interim Decision #1349
respondent had stated in his answer to Question 10 of the application
form, "I have not been charged with a violation of law," the Service
also contends that he concealed his criminal record and obtained documentation as a permanent resident by fraud or by willfully misrepresenting a material fact. Since one of the basic requirements for status
as a permanent resident under section 245 is that the person applying
be admissible to the United States, if the respondent was in fact convicted of a crime involving moral turpitude not classifiable as a petty
offense, he was not so admissible.
The respondent was convicted in the Court of Osimo, Province of
Ancona, Italy, on January 20, 1951, of the crime of embezzlement,
pursuant to Article 646 of the Italian Penal Code and Article 61, No.
11, of the Italian Penal Codo. A. copy of the record of conviction and
the statute are a part of the record. Differences have arisen in the
translation of the record of conviction, the translator for the respondent translating it as "embezzlement" and the translator for the Government interpreting the phrase as "misappropriation." Counsel for
the respondent wishes to accept the Service translation. According
to the Service translation, Article 646 of the Italian Penal Code is
entitled "Misappropriation" and provides that "Anyone who, in order
to obtain for himself or others an unjust profit, misappropriates money
or someone else's property, which he is holding under any condition,
is punishable, upon being sued by the offended person, to imprisonment
of up to three years and to a fine of up to 10,000 lire." If the act is
committed ,upon articles held necessarily on deposit (c. 1864.$) the
penalty is increased. Legal action will be instituted, if the circumstances indicated in the preceding paragraph apply or any of the circumstances indicated in No. 11 of Article 61 of the Italian Penal Code.
Article 61, No. 11, provides that when someone commits the deed with
the abuse of authority or domestic relations, or else with abusing relations of office, relation of employment, of cohabitation, or of
hospitality.
The translation of the record of conviction against the respondent
(Exhibit 5) shows that in the Police Magistrate's Court of Osimo,
in penal proceeding against the respondent, he was charged with the

crime of aggravated embezzlement, he having misappropriated in
order to obtain an unjust profit 24 accordions intrusted to him for
business or commercial purposes while he was in the United States,
and that he appropriated the money received from the sale of these
accordions in the amount of $1421, as a result of which on January 20,
1951, he was convicted of the crime of aggravated embezzlement or
misappropriation and was sentenced to two months imprisonment and
to 10,000 lire fine plus the payment of the costs of trial; it was further
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Interim Decision #1349
ordered that the execution of this sentence be suspended according to
law and that no mention be made of the conviction in the certificate of

penal records.
The significance of this language does not appear and it may be that
this language meant that the respondent could receive a "nolo" penal
record from Italy. However, the records pertaining to the crime were
still in existence and were readily obtainable, and it is obvious that
the record of conviction was not meant to be extinguished. Certificates
showing the conviction were readily obtained many years later. It
is believed that whether the crime mentioned in the record of conviction and the statute is translated "embezzlement" or "misappropriation," the result is in principle the same because the words are
essentially synonymous.)
In determining whether an offense committed in a foreign country
shall be considered a misdemeanor classifiable as a petty offense under
section 4 of the Act of September 3, 1954, or under section 212(a) (9)
of the Immigration and Nationality Act, recourse may be had to the
equivalent offense under the United States law, Title 18 of the United
States Code or if not found therein, Title 22 of the District of Columbia Code; after the equivalent offense under United States law has
been identified for the purpose of determining whether an offense
committed abroad shall be considered a misdemeanor classifiable as
a petty offense, the deftnitions of 18 U.S.O. 1 are to be applied. This
section provides in 18 U.S.C. 1(3) that any misdemeanor, the penalty
for which does not exceed imprisonment for a period of six months dr
a fine of not more than $500 or both, is a petty offense.
Comparing the offense under consideration with the comparable
crime in the United States, the crime appears to fall, under section
22 1210, District of Columbia Code, entitled "Embezzlement by ex-

ecutors or other fiduciaries." In the instant case the relationship was

clearly that of a principal and agent or fiduciary. Conviction under
the District of Columbia Code could have led to a sentence of ten
years in jail. It is not believed that the contention of counsel that
section 22-1211, District of Columbia Code, entitled "Taking property
without right" applies to this conviction.
Defense has been made that the respondent is entitled to the benefits
of Articles 163 and 167 of the Italian Penal Code which by its term
extinguishes the crime after a passage of a period of time during
which the respondent is not convicted of any other crime. In addition,
the respondent's conviction was declared amnestied by a Government
decree dated December 19, 1953. The questions of foreign extinction
or expungement statutes and amnesty declarations were previously
2

Black's Law Dictionary, 4th Edition; Cassell's Italian-Ent/Wit Dictionary.

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Interim Decision #1949
considered by this Board. 2 We have held that the extinction or expungement of a record of conviction in Italy or an amnesty is not
effective under the immigration laws, since it constitutes no more than
a legislative or executive pardon from a foreign governments
Counsel for respondent also asserts that the conviction of the respondent was not a penal conviction but constituted a civil action;
and that, inasmuch as the crime was committed in the United States,
the court in Italy had no jurisdiction. The record of the foreign conviction showing that it was a penal conviction is conclusive evidence
of the nature of the conviction. Nor can we go behind the record
of conviction to inquire into the legal status of the tribunal whose
judgment of conviction is before us other than with rare exceptions
relating to convictions in. absentia or convictions for political offenses,
neither consideration being present in the instant case. 4
The special inquiry officer has rested his decision solely on the ground
that the respondent was inadmissible under section 212(a) (9) of the
Immigration and Nationality Act at the thus his status was adjusted
to that of a permanent resident as an alien who had been convicted on
January 20, 1951, of a crime involving moral turpitude, to wit, embezzlement or misappropriation in violation of Article 646 of the
Italian Penal Code. As a consequence, he was not eligible for adjustment of status pursuant to section 245. The special inquiry officer
ends it unnecessary to pass upon the other charge of obtaining documentation as a permanent resident by fraud or willful misrepresentation of a material fact by concealing his conviction. Counsel objects
to the fact that the respondent was not permitted to testify regarding
the circumstances of the conviction and his understanding of the
sentence or amnesty. Inasmuch as the charge of obtaining documentation by fraud or willful misrepresentation of a material fact was not
considered by the special inquiry officer, it is felt that such testimony
is not relevant. The appeal will be dismissed.
ORDER: It is ordered that the appeal from the order of the spa'
dal inquiry officer rescinding under section 246 of the Immigration
and Nationality Act the permanent resident status previously granted
the respondent pursuant to section 245 of the Immigration and Nationality Act be and the same is hereby dismissed.
Matter of It—,7 & N. Dec. 100 ; Matter of G—, 5 I. & N. Dec. 129.
a Mercer v. Lew, 98 1`. 2d 122 (10 (Sr., 1938), cat den. 305 'U.S. 611; Weeddn
v. Hempel, 28 F. 2d 603 (9 Cir., 1928) ; United States ex rel. Palermo v. Smith,
17 F. 2d (2 Cir., 1927).
United Stater es, rel. Myliae v. Uhl, 203 P. 2d 152 sird. 210 P. 2d 860 (2 (Sr.,
1914) ; Gientmario v. Harney, 311 F. 2d 285 (3 Oir., 1062) ; Matter of P—,
&N. Dee. 4.64.
2

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Interim Decision #3959

Matter of L-E-A-, Respondent
Decided by Attorney General July 29, 2019
U.S. Department of Justice
Office of the Attorney General
(1) In Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), the Board of Immigration
Appeals improperly recognized the respondent’s father’s immediate family as a
“particular social group” for purposes of qualifying for asylum under the
Immigration and Nationality Act.
(2) All asylum applicants seeking to establish membership in a “particular social
group,” including groups defined by family or kinship ties, must establish that
the group is (1) composed of members who share a common immutable
characteristic; (2) defined with particularity; and (3) socially distinct within the
society in question.
(3) While the Board has recognized certain clans and subclans as “particular social
groups,” most nuclear families are not inherently socially distinct and therefore
do not qualify as “particular social groups.”
(4) The portion of the Board’s decision recognizing the respondent’s proposed
particular social group is overruled. See Matter of L-E-A-, 27 I&N Dec. at 42–
43 (Part II.A). The rest of the Board’s decision, including its analysis of the
required nexus between alleged persecution and the alleged protected ground, is
affirmed. See id. at 43–47 (Part II.B).

BEFORE THE ATTORNEY GENERAL
The Immigration and Nationality Act (“INA”) authorizes the Attorney
General to grant asylum, in his discretion, if an alien establishes that he is
unable or unwilling to return to his country of origin because he has suffered
past persecution or has a well-founded fear of future persecution on account
of “race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A), (B)(i). This
case once again requires interpretation of what it means to suffer persecution
on account of “membership in a particular social group,” an ambiguous term
that has required repeated construction by the Board of Immigration Appeals
(the “Board”), the Attorney General, and the U.S. Courts of Appeals.
The respondent contends that he was persecuted by a criminal gang on
account of his membership in the “particular social group” defined as the
“immediate family of his father,” who owned a store targeted by a local drug
cartel. Under existing Board precedent, a particular social group must share
“a common immutable characteristic” that is defined with particularity and
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“set apart, or distinct, from other persons within the society in some
significant way.” Matter of M-E-V-G-, 26 I&N Dec. 227, 238 (BIA 2014);
see also Matter of W-G-R-, 26 I&N Dec. 208, 217 (BIA 2014). The alien
bears the burden of showing that his proposed group meets these criteria, see
8 U.S.C. § 1158(b)(1)(B)(i), and he will not satisfy that burden solely by
showing that his social group has been the target of private criminal activity.
The fact that a criminal group—such as a drug cartel, gang, or guerrilla
force—targets a group of people does not, standing alone, transform those
people into a particular social group. See, e.g., Matter of S-E-G-, 24 I&N
Dec. 579, 586–87 (BIA 2008) (concluding that respondents who feared harm
from their refusal to join MS-13 were not a “particular social group”; they
were “not in a substantially different situation from anyone [else] who has
crossed the gang, or who is perceived to be a threat to the gang’s interests”);
Matter of Acosta, 19 I&N Dec. 211, 234 (BIA 1985) (working as a taxi driver
and “refusing to participate in guerrilla-sponsored work stoppages” at risk to
personal safety did not create “particular social group” status).
At the same time, the Board has recognized that a clan or similar group
bound together by common ancestry, cultural ties, or language may constitute
a “particular social group.” Matter of H-, 21 I&N Dec. 337, 343 (BIA 1996)
(describing the relevant “distinct and recognizable clans and subclans in
Somalia”); Acosta, 19 I&N Dec. at 233 (calling for a case-by-case
determination of whether innate characteristics like “sex, color, or kinship
ties” qualify as “particular social group” characteristics). But what qualifies
certain clans or kinship groups as particular social groups is not merely the
genetic ties among the members. Rather, it is that those ties or other salient
factors establish the kinship group, on its own terms, as a “recognized
component of the society in question.” W-G-R-, 26 I&N Dec. at 217. In that
respect, the large and prominent kinship and clan groups that have been
recognized by the Board as cognizable particular social groups stand on a
very different footing from an alien’s immediate family, which generally will
not be distinct on a societal scale, whether or not it attracts the attention of
criminals who seek to exploit that family relationship in the service of their
crimes.
Consistent with these prior decisions, I conclude that an alien’s familybased group will not constitute a particular social group unless it has been
shown to be socially distinct in the eyes of its society, not just those of its
alleged persecutor. See M-E-V-G-, 26 I&N Dec. at 237; W-G-R-, 26 I&N
Dec. at 215–18. Because the record does not support the determination in
this case that the immediate family of the respondent’s father constituted a
particular social group, I reverse the Board’s conclusion to the contrary.

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I.
In 1998, the respondent, a Mexican citizen, illegally entered the United
States. After a criminal conviction for driving under the influence, the
Department of Homeland Security (“DHS”) initiated removal proceedings.
The respondent accepted voluntary departure and returned to Mexico in May
2011. But he did not stay there long. By August 2011, the respondent had
again illegally returned to the United States. DHS apprehended him and
commenced removal proceedings. The respondent conceded removability,
but this time sought asylum based upon a claim of persecution allegedly
suffered during his brief return to Mexico.
According to the respondent, upon returning to Mexico, he had gone to
live with his parents in Mexico City. His father operated a neighborhood
general store there, but he had run afoul of La Familia Michoacana, a
Mexican drug cartel. Because his father refused to sell the cartel’s drugs out
of his store, the drug dealers evidently decided to retaliate against the
respondent upon his return. About a week after returning to Mexico City,
the respondent was walking a few blocks from his home when he heard
gunshots coming out of a black sport-utility vehicle. He dropped down to
the ground and was unharmed. Although the respondent did not initially
believe that he was the target of the shooting, he later concluded that he was,
based upon the cartel’s subsequent actions.
About a week later, four armed cartel members, driving the same black
sport-utility vehicle, approached the respondent and asked him to agree to
sell the cartel’s drugs at his father’s store. When the respondent declined,
the cartel members threatened him and advised him to reconsider. Shortly
thereafter, four masked men, in the same sport-utility vehicle, attempted to
kidnap the respondent, but he managed to escape. After that incident, the
respondent left Mexico City for Tijuana, where two months later, he illegally
crossed back into the United States and was thereafter apprehended.
In his removal proceeding, the respondent claimed persecution in Mexico
based on his membership in the particular social group comprising his
father’s immediate family. The immigration judge denied relief on the
ground that the respondent had not shown he was the victim of anything more
than criminal activity.
On appeal, the Board found that the respondent’s relationship with his
father established membership in a particular social group, namely “his
father’s immediate family.” Matter of L-E-A-, 27 I&N Dec. 40, 43 (BIA
2017). In reaching that conclusion, the Board relied upon DHS’s concession
“that the immediate family unit of the respondent’s father qualifies as a
cognizable social group.” Id. at 42; see also DHS Supplemental Brief at 20
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(“In this case, the Department stipulates that the immediate family unit of the
respondent’s father qualifies as a cognizable particular social group.”). The
Board recognized that, under the relevant precedents, a family-related group
must satisfy the requirements of particularity and social distinction to qualify
as a “particular social group” under the INA. L-E-A-, 27 I&N Dec. at 42.
And the Board noted that such a determination requires “a fact-based inquiry
made on a case-by-case basis,” and will not be satisfied by “all social groups
that involve family members.” Id. at 42–43. But the Board did not perform
such an inquiry; instead, it summarily concluded that “[i]n consideration of
the facts of this case and the agreement of the parties, we have no difficulty
identifying the respondent, a son residing in his father’s home, as being a
member of the particular social group comprised of his father’s immediate
family.” Id. (emphasis added).
Although it approved the claimed social group, the Board denied the
respondent’s asylum application because of the absence of the necessary
nexus between his membership in the group and the persecution. Id. at 43–
47. The Board explained that “[a] persecution claim cannot be established if
there is no proof that the applicant or other members of the family were
targeted because of the family relationship.” Id. at 43. Here, the Board
concluded, the respondent was approached by the cartel “because he was in
a position to provide access to the store, not because of his family
membership.” Id. at 46. He “was targeted only as a means to achieve the
cartel’s objective to increase its profits by selling drugs in the store owned
by his father,” and “[a]ny motive to harm the respondent because he was a
member of his family was, at most, incidental.” Id. As the Board noted, “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.
The Board remanded the matter to the immigration judge for
consideration of the respondent’s additional claim for protection under the
U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”). Id. at 47.
On December 3, 2018, Acting Attorney General Whitaker directed the
Board to refer its decision for review, see 8 C.F.R. § 1003.1(h)(1)(i), staying
the proceedings and inviting briefing on whether, and under what
circumstances, an alien may establish persecution on account of membership
in a “particular social group” based on the alien’s membership in a family
unit. Matter of L-E-A-, 27 I&N Dec. 494, 494 (A.G. 2018).

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II.
Before turning to the merits, I address several threshold arguments raised
by the respondent about my authority to review this case. First, the
respondent argues that the Acting Attorney General could not certify this
matter for review because the Board had remanded the case to the
immigration judge for further proceedings. As Matter of A-B- recognized,
“[n]othing in the INA or the implementing regulations precludes the
Attorney General from referring a case for review simply because the Board
has remanded the case for further proceedings before an immigration judge.”
27 I&N Dec. 316, 323–24 (A.G. 2018). I therefore reject this argument for
the reasons stated in that opinion.
Second, the respondent argues that the Acting Attorney General had no
authority to refer this case because he was not properly appointed to his
position. But the President’s designation of Mr. Whitaker as Acting Attorney
General was expressly authorized by the Federal Vacancies Reform Act of
1998, 5 U.S.C. §§ 3345–3349d, and was consistent with the Appointments
Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2. See Designating an
Acting Attorney General, 42 Op. O.L.C. __ (Nov. 14, 2018). In any event,
that question is now moot, because the respondent has not argued, and cannot
argue, that my appointment as Attorney General is subject to such a
challenge. As Attorney General, I have the authority to ratify the initial
certification (which I hereby do), and I have decided this case based upon my
own independent review of the record. See Wilkes-Barre Hosp. v. NLRB,
857 F.3d 364, 371 (D.C. Cir. 2017) (“[R]atification can remedy a defect
arising from the decision of ‘an improperly appointed official . . . when . . .
a properly appointed official has the power to conduct an independent
evaluation of the merits and does so.’” (quoting Intercollegiate Broad. Sys.,
Inc. v Copyright Royalty Bd., 796 F.3d 111, 117 (D.C. Cir. 2015))).
Therefore, the validity of the Acting Attorney General’s appointment is not
relevant to my disposition of this case.
Third, the respondent contends that my prior statements regarding asylum
and immigration issues prevent me from acting as an unbiased adjudicator.
But I “have made no public statements regarding the facts of respondent’s
case, and I have no ‘personal interest in the outcome of the proceedings.’”
A-B-, 27 I&N Dec. at 325 (quoting Strivers v. Pierce, 71 F.3d 732, 741 (9th
Cir. 1995)); see also Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151,
1168 (D.C. Cir. 1979) (finding that policymakers do not have to retreat from
“interchange and discussion about important issues”).
Finally, the respondent argues that I do not have jurisdiction to render a
decision because the immigration judge never properly acquired jurisdiction.
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The respondent contends that jurisdiction never vested because the charging
document lacked all of the information required by the INA and 8 C.F.R.
§ 1003.15—namely, the notice to appear did not include the time and place
of the first hearing in this matter. But the Board has previously ruled that
similar notices are adequate to establish jurisdiction, so long as subsequent
notices provide that information. Matter of Bermudez-Cota, 27 I&N Dec.
441 (BIA 2018); see also Karingithi v. Whitaker, 913 F.3d 1158, 1161 (9th
Cir. 2019) (holding that Bermudez-Cota permissibly interpreted the relevant
regulations). Further, neither the INA nor 8 C.F.R. § 1003.15 specifies that
the notice to appear must contain such details about the first hearing. See id.
§ 1003.15(b).
And the relevant jurisdictional regulation, 8 C.F.R.
§ 1003.14(a), “does not specify what information must be contained in a
‘charging document’ at the time it is filed with an Immigration Court, nor
does it mandate that the document specify the time and date of the initial
hearing before jurisdiction will vest.” Bermudez-Cota, 27 I&N Dec. at 445.
Although that information was not contained in the initial notice to appear,
the immigration court subsequently issued a notice of hearing with all the
required information. See Matter of L-E-A-, Notice of Hearing (Immig. Ct.
Aug. 17, 2011). Therefore, this jurisdictional challenge does not block my
review.
III.
Turning now to the merits, I conclude that the Board erred in finding that
the respondent’s purported social group—the members of his father’s
immediate family—qualified as a “particular social group” under the INA.
All particular social groups must satisfy the criteria set forth in Matter of
M-E-V-G- and Matter of W-G-R-, and a proposed family-based group is no
different. An applicant must establish that his specific family group is
defined with sufficient particularity and is socially distinct in his society. In
the ordinary case, a family group will not meet that standard, because it will
not have the kind of identifying characteristics that render the family socially
distinct within the society in question. The Board here did not perform the
required fact-based inquiry to determine whether the respondent had satisfied
his burden of establishing the existence of a particular social group within
the legal requirements of the statute. The Board’s summary conclusions,
based on DHS’s stipulation rather than its own legal analysis, must therefore
be reversed.

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A.
An applicant for asylum bears the burden of establishing that he “is a
refugee, within the meaning of section 1101(a)(42)(A)” of the INA. 8 U.S.C.
§§ 1158(b)(1)(A), (B)(i). To meet that definition, the applicant must
demonstrate that he is an alien outside his country of nationality “who is
unable or unwilling to return to, and is unable or unwilling to avail himself
. . . of the protection of, that country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A)
(emphasis added). No statute or regulation defines what constitutes a
“particular social group.”
The Board first interpreted “persecution on account of membership in a
particular social group” in Acosta, 19 I&N Dec. at 232–34. Noting that this
provision “was added as an afterthought” to the CAT and that “Congress
[similarly] did not indicate what it understood this ground of persecution to
mean,” id. at 232, the Board turned to the language itself:
A purely linguistic analysis of this ground of persecution suggests that it
may encompass persecution seeking to punish either people in a certain
relation, or having a certain degree of similarity, to one another or people
of like class or kindred interests, such as shared ethnic, cultural, or
linguistic origins, education, family background, or perhaps economic
activity.

Id. at 232–33. Applying the doctrine of ejusdem generis, the Board read
“particular social group” in a manner consistent with the other statutory
grounds for persecution: race, religion, nationality, and political opinion. Id.
at 233. Because each of these terms describes “a characteristic that either is
beyond the power of an individual to change or is so fundamental to an
individual’s identity or conscience that it ought not be required to be
changed,” the Board concluded that “membership in a particular social
group” must similarly involve the sharing of a “common, immutable
characteristic.” Id. According to the Board, “[t]he shared characteristic
might be an innate one such as sex, color, or kinship ties,” and immigration
judges should engage in a case-by-case analysis to determine whether a
particular innate characteristic would qualify. Id. The Board did not clarify
whether the sharing of a “common, immutable characteristic” was a
sufficient, as opposed to just a necessary, condition for qualifying as a
particular social group under the statutory definition of “refugee.” See id.
In Matter of H-, 21 I&N Dec. 337, 342–43 (BIA 1996), the Board
addressed the kind of kinship ties that might constitute membership in a
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particular social group. There, the Board found that the record established
credible evidence that the Somali Marehan subclan constituted a “particular
social group,” because the subclan was “distinct and recognizable” in Somali
society with distinguishing “linguistic commonalities.” Id. at 343. The
Board relied on a legal opinion by the General Counsel of the Immigration
and Naturalization Service, who stated that Somali “[c]lan membership is a
highly recognizable, immutable characteristic;” that Somali clans are
“defined by discrete criteria”; and that “membership in a clan is at the essence
of a Somali’s identity in determining his or her relations to others in and
outside of the clan,” Whether Somali Clan Membership May Meet the
Definition of Membership in a Particular Social Group under the INA,
Genco Op. No. 93–91 (INS), 1993 WL 1504038, at *1–*2 (Dec. 9, 1993).
See H-, 21 I&N Dec. at 342. The Board also recognized that annual reports
issued by the Department of State spoke specifically to the “presence of
distinct and recognizable clans and subclans in Somalia and the oncepreferred position of the applicant’s Marehan subclan,” due to its association
with former Somali President Siad Barre. Id. at 342–43.
Over the decades since, the Board has refined the standard for identifying
social groups that qualify for protection under the asylum statute. See
M-E-V-G-, 26 I&N Dec. at 236–49; W-G-R-, 26 I&N Dec. 209–21; see also
Reyes v. Lynch, 842 F.3d 1125, 1134–35 (9th Cir. 2016) (recognizing the
Board’s refinement of its “particular social group” framework); OrellanaMonson v. Holder, 685 F.3d 511, 521 (5th Cir. 2012) (“The [Board] may
make adjustments to its definition of ‘particular social group’ and often does
so in response to the changing claims of applicants. Deference to published
[Board] decisions is warranted as [the Board] gives ambiguous statutory
terms concrete meaning through a process of case-by-case adjudication.”
(internal quotation marks and citations omitted)). Specifically, in two
complementary opinions issued in 2014, the Board held that an asylum
applicant claiming membership in a particular social group must “establish
that the group is: (1) composed of members who share a common immutable
characteristic; (2) defined with particularity; and (3) socially distinct within
the society in question.” M-E-V-G-, 26 I&N Dec. at 237; see W-G-R-, 26
I&N Dec. at 212. The Board explained that this definition was a continuation
of its earlier interpretations of “particular social group,” see, e.g., Acosta, 19
I&N Dec. 211, clarifying how the definition of “particular social group” had
been refined through the process of case-by-case adjudication. See W-G-R-,
26 I&N Dec. at 212; M-E-V-G-, 26 I&N Dec. at 244–47.
In Matter of A-B-, Attorney General Sessions reaffirmed this approach
and emphasized the importance of a rigorous application of that legal

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standard. 27 I&N Dec. at 333–36. 1 Respondents must present facts to
establish each of the required elements for asylum status, and the asylum
officer, immigration judge, or Board must determine whether those facts
satisfy the required elements. See id. at 340 (citing 8 C.F.R. § 208.13(a)).
Matter of A-B- reiterated that, “[t]o be cognizable, a particular social group
must ‘exist independently’ of the harm asserted.” Id. at 334 (citing, interalia, M-E-V-G-, 26 I&N Dec. at 237 n.11, 243). Based upon these
immigration decisions, in the ordinary case, a nuclear family will not,
without more, constitute a “particular social group” because most nuclear
families are not inherently socially distinct.
I recognize that a number of courts of appeals have issued opinions that
recognize a family-based social group as a “particular social group” under
the asylum statute. In some of these cases, the courts may have been willing
(as the Board was in this case) to accept, or assume with little analysis, the
existence of a particular social group because the court went on to deny
asylum on other grounds. See, e.g., Cruz-Guzman v. Barr, 920 F.3d 1033,
1037 (6th Cir. 2019); Rivas v. Sessions, 899 F.3d 537, 542 (8th Cir. 2018);
Bernal-Rendon v. Gonzales, 419 F.3d 877, 881 (8th Cir. 2005). In other
cases, the parties stipulated to the validity of the applicant’s particular social
group definition and the applicant’s membership therein. See, e.g., K.H. v.
Barr, 920 F.3d 470, 474 (6th Cir. 2019). Consequently, these cases do not
reflect the thorough, case-specific analysis of the three Matter of
M-E-V-G- factors that the Board’s precedents generally require. And I do
not believe that a cursory analysis of a question that was either uncontested,
or not dispositive to the outcome, should be taken to undermine the Board
requirement that asylum applicants claiming “membership in a particular
social group” must establish that their group shares a common immutable
characteristic, is defined with particularity, and is socially distinct. See
M-E-V-G-, 26 I&N Dec. at 237–38; see W-G-R-, 26 I&N Dec. at 212.
I also recognize that certain courts of appeals have considered the
requisite elements of a “particular social group” and, despite the
requirements set forth in M-E-V-G- and W-G-R-, have nonetheless suggested
that shared family ties alone are sufficient to satisfy the INA’s definition of
“refugee”—regardless of whether the applicant’s specific family is defined
with particularity or is socially distinct in his society. For instance, in Rios
v. Lynch¸ the Ninth Circuit expressly observed that under the “refined
1

The U.S. District Court for the District of Columbia has called into question some aspects
of Matter of A-B- that are not relevant here. See Grace v. Whitaker, 344 F. Supp. 3d 96
(D.D.C. 2018). The Department of Justice has appealed that decision, which is the subject
of ongoing litigation. See Notice of Appeal, Grace v. Whitaker, No. 19-5013 (D.C. Cir.
Jan. 30, 2019).

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framework” of Matter of M-E-V-G-, “the family . . . [is] the quintessential
particular social group.” 807 F.3d 1123, 1128 (9th Cir. 2015). In addition,
three other circuits have expressed the same view, but without explicitly
evaluating whether that position is consistent with Matter of M-E-V-G- and
Matter of W-G-R-. See, e.g., Velasquez v. Sessions, 866 F.3d 188, 194 (4th
Cir. 2017) (“We have recognized that an individual’s membership in her
nuclear family is a particular social group.”); Villalta-Martinez v. Sessions,
882 F.3d 20, 26 (1st Cir. 2018) (“[I]t is well established that the nuclear
family constitutes a recognizable social group . . . .”); Torres v. Mukasey,
551 F.3d 616, 629 (7th Cir. 2008) (“Our prior opinions make it clear that we
consider family to be a cognizable social group . . . .”).
These decisions do not purport to contradict the Board’s “particular social
group” framework and, in my view, they have relied upon outdated dicta
from the Board’s early cases. For example, the First Circuit has long relied
on precedent that derives from Matter of Acosta’s vague statement that
kinship ties “might” be the kind of innate characteristic that could form the
basis of a particular social group. See, e.g., Gebremichael v. INS, 10 F.3d
28, 36 (1st Cir. 1993) (citing Acosta to support broad recognition of
particular social groups based on the nuclear family). But the reference to
“kinship ties” in Matter of Acosta provides no justification for a broad
assumption that an applicant’s nuclear family will constitute a valid
particular social group in his society. The Board there did not define what it
meant by “kinship ties,” since the respondent had described his relevant
social group instead as persons “engaged in the transportation industry” in
his country. See 19 I&N Dec. at 232, 233.
Similarly, the Seventh Circuit has declined to apply the particularity and
social distinction requirements, requiring only that members of particular
social groups share a common, immutable characteristic, as recognized in
Matter of Acosta, 19 I&N Dec. at 233. See, e.g., Melnik v. Sessions, 891 F.3d
278, 286 n.22 (7th Cir. 2018) (noting the circuit’s rejection of the Board’s
initial articulations of the particularity and social distinction requirements).
The Seventh Circuit’s refusal to reconsider its position in light of Matter of
M-E-V-G- and Matter of W-G-R- has left in place circuit precedent dating
from the 1990s positing, without analysis, that every family would constitute
a cognizable social group under the INA. See Torres, 551 F.3d at 629 (citing
Iliev v. INS, 127 F.3d 638, 642 & n.4 (7th Cir. 1997) (noting that “[o]ur case
law has suggested, with some certainty, that a family constitutes a cognizable
‘particular social group’ within the meaning of the law,” but citing only cases
in which the court determined that the alien had failed to establish
persecution on account of family ties (emphases added))).

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Finally, the Fourth Circuit based its conclusion that nuclear families could
be particular social groups on a passing suggestion by the Board that
“‘[s]ocial groups based on innate characteristics such as . . . family
relationship are generally easily recognizable and understood by others to
constitute social groups.’” Crespin-Valladares v. Holder, 632 F.3d 117,
126–27 (4th Cir. 2011) (quoting Matter of C-A-, 23 I&N Dec. 951, 959 (BIA
2006)). But Matter of C-A- did not concern a family-based social group, and
in fact expressly cautioned against broad recognition of family-based social
groups, noting that a particular social group must be recognizable as a
separate, distinct group within the alien’s home country. 23 I&N Dec. at
959. Therefore, the Board’s passing suggestion that nuclear families always
constitute “particular social group[s]” was subsequently qualified within the
text of the opinion itself.
To the extent, however, that any court of appeals decision is best
interpreted as adopting a categorical rule that any nuclear family could
constitute a cognizable “particular social group,” I believe that such a holding
is inconsistent with both the asylum laws and the long-standing precedents
of the Board. Since Matter of Acosta, the Board has emphasized that a
“particular social group” must be particular and socially distinct in the
society at question, which itself requires a fact-specific inquiry based on the
evidence in a particular case. Compare Acosta, 19 I&N Dec. at 233, and
C-A-, 23 I&N Dec. at 955, with M-E-V-G-, 26 I&N Dec. at 231, and W-G-R-,
26 I&N Dec at 210; see also Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th
Cir. 2014) (“To determine whether a group is a particular social group for
the purposes of an asylum claim, the agency must make a case-by-case
determination as to whether the group is recognized by the particular society
in question.”); Miranda v. Sessions, 892 F.3d 940, 943 (8th Cir. 2018)
(applicant “did not present evidence that he shared [the defining]
characteristic with others or that the characteristic was commonly recognized
as defining a particular social group”). The application of contradictory rules
by the courts of appeals is inappropriate because whether a specific family
group constitutes a “particular social group” should be determined by the
immigration courts in the first instance, as an exercise of the Attorney
General’s delegated authority to interpret the INA. See Gonzales v. Thomas,
547 U.S. 183, 185–87 (2006).
The Attorney General has primary responsibility for construing and
applying provisions in the immigration laws. See M-E-V-G-, 26 I&N Dec.
at 230. The INA provides that, within the Executive Branch, the
“determination and ruling by the Attorney General with respect to all
questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1). Plainly, the
term “particular social group” is ambiguous, and every court of appeals to
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address the proper application of the phrase “particular social group” has
deferred to decisions of the Board in the phrase’s application. See A-B-, 27
I&N Dec. at 327 & n.6 (collecting cases). Congress thus delegated to the
Attorney General the discretion to reasonably interpret the meaning of
“membership in a particular social group,” and such reasonable
interpretations are entitled to deference. Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). As the Supreme Court
has recognized, “‘ambiguities in statutes within an agency’s jurisdiction to
administer are delegations of authority to the agency to fill the statutory gap
in reasonable fashion. Filling these gaps . . . involves difficult policy choices
that agencies are better equipped to make than courts.’” Negusie v. Holder,
555 U.S. 511, 523 (2009) (quoting Nat’l Cable & Telecomms. Ass’n v. Brand
X Internet Servs., 545 U.S. 967, 980 (2005)). This principle holds even in
cases where the courts of appeals might have interpreted the phrase
differently in the first instance. See Brand X Internet Servs., 545 U.S. at 980.
I therefore interpret the ambiguous term “particular social group” in the
manner that I believe to be the most faithful to the text, purpose, and policies
underlying the asylum statute.
B.
The Board has recognized that “kinship ties” may be one of the kinds of
common, immutable characteristics that might form the basis for a
“particular social group” under the INA. Acosta, 19 I&N Dec. at 233. But
the Board has never held that every type of family grouping would be
cognizable as a particular social group. Cf. C-A-, 23 I&N Dec. at 959 (“In
considering clan membership in [a prior decision] we did not rule
categorically that membership in any clan would suffice.”). Here, the
respondent argues that the immediate family of his father constitutes a
particular social group because a local drug cartel had a dispute with his
father, and the cartel chose to take that dispute out upon his family members.
But the respondent did not show that anyone, other than perhaps the cartel,
viewed the respondent’s family to be distinct in Mexican society. If cartels
or other criminals created a cognizable family social group every time they
victimized someone, then the social-distinction requirement would be
effectively eliminated.
Under the ejusdem generis canon, the term “particular social group” must
be read in conjunction with the terms preceding it, which cabin its reach, see
Acosta, 19 I&N Dec. at 233, rather than as an “omnibus catch-all” for
everyone who does not qualify under one of the other grounds for asylum,
see Velasquez, 866 F.3d at 198 (Wilkinson, J., concurring). The INA
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expressly grants asylum to spouses and children of aliens who receive asylum
if those family members are accompanying or following the original
applicant to the United States. 8 U.S.C. § 1158(b)(3)(A). By contrast, the
INA does not specify family ties alone as an independent basis for qualifying
for asylum relief. Cf. In re A-K-, 24 I&N Dec. 275, 278 (BIA 2007)
(“Automatically treating harm to a family member as being persecution to
others within the family is inconsistent with the derivative asylum provisions,
as it would obviate the need for these provisions in many respects.”).
Further, as almost every alien is a member of a family of some kind,
categorically recognizing families as particular social groups would render
virtually every alien a member of a particular social group. There is no
evidence that Congress intended the term “particular social group” to cast so
wide a net. Moreover, 8 U.S.C. § 1101, within which the definition of
“refugee” appears, uses the term family (or families) ten times in the
definitions of other terms. See, e.g., 8 U.S.C. § 1101(a)(15)(A), (G)
(including members of “immediate famil[ies]” within eight separate classes
of nonimmigrant aliens); id. § 1101(a)(27)(I)(iv) (referencing members of an
immigrant’s “immediate family” within a category of “special immigrant”);
id. § 1101(b)(1)(E)(i) (referencing “family member[s]” within a definition of
the term “child”). If Congress intended for refugee status to turn on one’s
suffering of persecution “on account of” family membership, Congress
would have included family identity as one of the expressly enumerated
covered grounds for persecution.
Thus, by the terms of the statutory definition of “refugee,” as well as
according to long-standing principles set forth in BIA precedent, to qualify
as a “particular social group,” an applicant must demonstrate that his family
group meets each of the immutability, particularity, and social distinction
requirements. While many family relationships will be immutable, some
family-based group definitions may be too vague or amorphous to meet the
particularity requirement—i.e., where an applicant cannot show discernible
boundaries to the group. See, e.g., S-E-G-, 24 I&N Dec. at 585 (noting that
the “proposed group of ‘family members,’ which could include fathers,
mothers, siblings, uncles, aunts, nieces, nephews, grandparents, cousins, and
others, is . . . too amorphous a category” to satisfy the particularity
requirement). Further, many family-based social groups will have trouble
qualifying as “socially distinct,” a requirement that contemplates that the
applicant’s proposed group be “set apart, or distinct, from other persons
within the society in some significant way.” M-E-V-G-, 26 I&N Dec. at 238
(“In other words, if the common immutable characteristic were known, those
with the characteristic in the society in question would be meaningfully
distinguished from those who do not have it.”). “To have the ‘social
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distinction’ necessary to establish a particular social group, there must be
evidence showing that society in general perceives, considers, or recognizes
persons sharing the particular characteristic to be a group.” W-G-R-, 26 I&N
Dec. at 217.
Asylum applicants generally seek to establish family-based groups as
“particular social groups” by raising one of two principal arguments. First,
many applicants assert a specific family unit as their “particular social
group.” See, e.g., Hernandez-Avalos v. Lynch, 784 F.3d 944, 949–50 (4th
Cir. 2015) (social group defined as appellant’s nuclear family); Rios, 807
F.3d at 1126 (social group defined as appellant’s “family”); Perecki v. U.S.
Att’y Gen., 446 F. App’x 236, 239 (11th Cir. 2011) (social group defined as
“Perkeci family, as targets of a blood feud”). But to qualify under the statute
and Board precedent, when an applicant proposes a group composed of a
specific family unit, he must show that his proposed group has some greater
meaning in society. It is not enough that the family be set apart in the eye of
the persecutor, because it is the perception of the relevant society—rather
than the perception of the alien’s actual or potential persecutors—that
matters. W-G-R-, 26 I&N Dec. at 217.
In analyzing these claims, adjudicators must be careful to focus on the
particular social group as it is defined by the applicant and ask whether that
group is distinct in the society in question. If an applicant claims persecution
based on membership in his father’s immediate family, then the adjudicator
must ask whether that specific family is “set apart, or distinct, from other
persons within the society in some significant way.” M-E-V-G-, 26 I&N Dec.
at 238. It is not sufficient to observe that the applicant’s society (or societies
in general) place great significance on the concept of the family. If this were
the case, virtually everyone in that society would be a member of a
cognizable particular social group. The fact that “nuclear families” or some
other widely recognized family unit generally carry societal importance says
nothing about whether a specific nuclear family would be “recognizable by
society at large.” A-B-, 27 I&N Dec. at 336; see also Castellano-Chacon v.
INS, 341 F.3d 533, 548 (6th Cir. 2003) (noting that a country or society’s
reaction to a group is a factor in establishing whether it is a cognizable
particular social group). The average family—even if it would otherwise
satisfy the immutability and particularity requirements—is unlikely to be so
recognized.
Second, other applicants define the relevant “particular social group” as
a collection of familial relatives of persons who have certain shared
characteristics. See, e.g., S.E.R.L. v. Att’y Gen. U.S.A., 894 F.3d 535, 541
(3d Cir. 2018) (social group defined as “immediate family members of
Honduran women unable to leave a domestic relationship”); Cordova v.
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Holder, 759 F.3d 332, 336 (4th Cir. 2014) (social group defined as “family
members of persons who have been killed by rival gang members”); Vumi v.
Gonzales, 502 F.3d 150, 152 (2d Cir. 2007) (social group defined as
“relatives of assassination suspects”). This is a common approach in asylum
cases concerning gang violence. See, e.g., Orellana-Monson v. Holder, 685
F.3d 511, 517 (5th Cir. 2012) (social group defined to include families of
Salvadoran young adults who were subjected to, and rejected, gang
recruitment); Crespin-Valladares, 632 F.3d at 120–21 (social group defined
as “consisting of family members of those who actively oppose gangs in El
Salvador by agreeing to be prosecutorial witnesses”); Poroj-Mejia v. Holder,
397 F. App’x 234, 236 (7th Cir. 2010) (social group defined as “members of
families who sought police assistance against the Mara 18”). Often, this
category of family classifications fails the social distinction requirement
because there is little evidence to indicate that families sharing these
characteristics are seen in society as cohesive and identifiable groups. See,
e.g., S-E-G-, 24 I&N Dec. at 585–88 (holding that there was little to
distinguish purported social group comprising “family members of
Salvadoran youth . . . who have rejected or resisted membership in [MS-13]”
from members of Salvadoran society at large, who were also threatened by
gang violence). Furthermore, when proposing these kinds of groups,
applicants risk impermissibly defining their purported social group in terms
of the persecution it has suffered or that it fears. See M-E-V-G-, 26 I&N Dec.
at 236 n.11 (particular social groups must exist independently of the harm
asserted); see also, e.g., Poroj-Mejia, 397 F. App’x at 237 (denying asylum
claim of applicant whose proposed social group “has no existence
independent of” the alleged persecutors); Rodriguez v. U.S. Att’y Gen., 735
F.3d 1302, 1310 (11th Cir. 2013) (concluding that the defining attribute of
applicant’s proposed family member group was its persecution by the drugtrafficking organization, and the risk of persecution alone can never create a
particular social group).
This opinion does not bar all family-based social groups from qualifying
for asylum. To the contrary, in some societies, an applicant may present
specific kinship groups or clans that, based on the evidence in the applicant’s
case, are particular and socially distinct. See, e.g., Ali v. Ashcroft, 394 F.3d
780, 785 (9th Cir. 2005) (holding that the “persecution Ali suffered was
clearly on account of . . . her membership in a particular social group, her
clan”); H-, 21 I&N Dec. at 343 (recognizing a Somali subclan as a “particular
social group”). But unless an immediate family carries greater societal
import, it is unlikely that a proposed family-based group will be “distinct” in
the way required by the INA for purposes of asylum. Moreover, adjudicators
should be skeptical of social groups that appear to be “defined principally, if
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not exclusively, for the purposes of [litigation] . . . without regard to the
question of whether anyone in [a given country] perceives [those] group[s]
to exist in any form whatsoever.” In re R-A-, 22 I&N Dec. 906, 918 (BIA
1999; A.G. 2001), remanded for recons. in Matter of R-A-, 24 I&N Dec. 629
(A.G. 2008). 2
Here, the Board’s particular social group analysis merely cited past Board
and federal court precedents recognizing family-based groups and then
agreed with the parties’ stipulations. The Board summarily concluded that
“the facts of this case present a valid particular social group,” without
explaining how the facts supported this finding or satisfied the particularity
and social visibility requirements. L-E-A-, 27 I&N Dec. at 42–43. This
cursory treatment could not, and did not, satisfy the Board’s duty to ensure
that the respondent satisfied the statutory requirements to qualify for asylum.
The Board’s conclusion that the respondent’s proposed group presents a
valid “particular social group” under the INA must be reversed.
IV.
As Attorney General Sessions previously explained, “[a]n alien may
suffer threats and violence in a foreign country for any number of reasons
relating to her social, economic, family, or other personal circumstances.
Yet, the asylum statute does not provide redress for all misfortune.” A-B-,
27 I&N Dec. at 318. The term “particular social group” may not receive such
an elastic and unbound meaning that it includes all immediate-family units,
regardless of whether the applicant’s proposed family is particular and
socially distinct in his society.
For the reasons stated above, I overrule the portion of Matter of
L-E-A- discussing whether the proposed particular social group is
2

Some proposed group definitions appear, on their face, to be convoluted and to lack any
greater importance in society. See, e.g., Franco-Reyes v. Sessions, 740 F. App’x 420, 421
(5th Cir. 2018) (proposed group comprising Salvadoran “nuclear fami[ies] headed by a
woman with a partner who is perceived as being absent and who is perceived as having
expatriated himself”); Solomon-Membreno v. Holder, 578 F. App’x 300, 301 (4th Cir. 2014)
(proposed group comprising “young female students who are related to an individual who
opposes gang practices and values”); Rodriguez, 735 F.3d at 1306–07 (proposed group
comprising “Mexican farmers in the State of Michoacán, owning . . . farmland suitable for
producing high yields of illegal drug crops (cannabis), who are subject to Drug Trafficking
Organizations’ (DTOs’) extortion tactics on account of their ownership of said farmland
and unwillingness to collaborate with the DTOs by refusing to grow and produce illegal
drug crops or participate in illegal drug trafficking” (ellipses in original)); Zavala v. Holder,
353 F. App’x 631, 633 (2d Cir. 2009) (proposed group comprising “all persons who the
Maras have targeted for revenge or recruitment as a form of repayment for that person’s
family’s failure to support the guerrillas during the civil war”).

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cognizable. 27 I&N Dec. at 42–43 (Part II.A). Furthermore, I abrogate all
cases inconsistent with this opinion.
Although the Board relied on the parties’ concessions to find the
existence of a particular social group in this case, it ultimately concluded that
the respondent failed to establish a nexus between his purported particular
social group and the persecution that he alleged and feared. I leave the
Board’s analysis of the nexus requirement undisturbed and remand this
matter to the immigration judge for further proceedings consistent with this
opinion and the remaining portions of the Board’s decision below.

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