MATTER OF

Y —J --G—

In VISA PETITION Proceedings
VP 16-1-23207
Decided by Board October 4, 1960
Preference quota status—Transfer to nonquota status—Act of September 22,
1959—Retention of parent-child relationship not affected by marriage or age
of child.
(1) Approved third preference petition which lapsed on June 2, 1959, when
beneficiary "child" of resident alien petitioner attained age 21 may be revalidated ab initio under September 22, 1959 amendment to Immigration
and Nationality Act enlarging third preference category to include unmarried sons or daughters of resident aliens.
(2) Beneficiary is also eligible for transfer of third preference status to nonquota status under section 4 or 6 of Act of September 22, 1959. Proviso in
latter sections regarding retention of relationship and status Is satisfied so
long as the basic family relationship, which is unaffected by the age or
marriage of the child, continues unchanged.

BEFORE THE BOARD

DISCUSSION: The case was certified by the District Director,
Los Angeles District, to the Assistant Commissioner, Examinations,
who in turn has certified his decision of April 11, 1960, that the

beneficiary be considered a nonquota alien pursuant to section 6 of
the Act of September 22, 1959.
The petitioner, a native and citizen of China, 49 years old, a permanent resident alien, who was admitted to the United States on
Mai, 10, 1955, in possession of a special nonquota immigrant visa
issued under the Ref-Ogee Relief Act of 1953, as amended, filed a
visa petition on December 10, 1957, to accord the beneficiary preference status pursuant to section 203(a) (3) of the Immigration and
-

Nationality Act. The beneficiary is the male child of the petitioner,
a native and citizen of China, born ,Tuna 2, 1938. On January 31,
1958, the visa petition was approved for a third preference status
under section 203(a) (3) of the Immigration and Nationality Act
as the minor unmarried child of an alien lawfully admitted to the
United States for permanent residence. However, the beneficiary
became 21 years of age on June 2, 1959, and approval of the visa
petition was automatically revoked pursuant to 8 CFR 206.1(b) (5).

The beneficiary's name was removed from the third preference quota
waiting list and inserted on the waiting list of nonpreference quota

immigrants chargeable to the quota for Chinese persons.
Section 2 of the Act of September 22, 1959, amended section 203
(a) (3) of the Immigration and Nationality Act so as to extend
third preference eligibility to unmarried sons and daughters of permanent resident aliens. The term "sons and daughters" includes
persons over 21 years of age as well as a "child" as defined in section
101(b) (1) of the Immigration and Nationality Act.' Accordingly,
under the provisions of section 203(a) (3) of the Immigration and
Nationality Act as amended by section 2 of the Act of September
22, 1959, the beneficiary, who is now over 21 years of age, is under
the present law eligible for third preference quota status and approval of the petition may in any event be revalidated a initio for
that category.
While there is no doubt that the beneficiary is qualified for third
preference status, a further question to be resolved is whether he
may be considered as eligible for nonquota status under the provisions of section 4 or section 6 of the Act of September 22, 1959.
Section 4 of the amendatory Act of September 22, 1959 provides
as follows:
Any alien who (1) is registered on a consular waiting list pursuant to
section 203(c) of the Immigration and Nationality Act (66 Stat. 179) under
a priority date earlier than December 31, 1953, and (2) is eligible for a quota
immigrant status under the provisions of set:lion 203(a) (2), (3), or (4) of such
Act on the basis of a petition approved by the Attorney General prior to
January 1, 1959, and the spouse and the children of such alien, shall be held
to be nonquota immigrants and, if otherwise admissible under the provisions
of the Immigration and Nationality Act, shall be issued nonquota immigrant
visas: Provided, That, upon his application for an immigrant visa, and for his
admission into the United States, the alien is found to have retained his
relationship to the petitioner, and status, as established in the approved
petition.

Section 6 of the same Act provides as follows:
Notwithstanding the provisions of sections 3 and 20 of the Refugee Relief
Act of 1953, as amended, special nonquota immigrant visas may be issued to
aliens eligible to enter the United States for permanent residence under all
the applicable provisions of the Immigration and Nationality Act: Provided,
That each such alien is found to be the beneficiary of a visa petition approved by the .111.ttorney General pursuant to section 202(a) (2) and (2) and
section 205 of the Immigration and Nationality Act prior to January 1, 1959,
and such petition was filed by a person lawfully admitted into the United
States under the provisions of the Refugee Relief Act of 1953, as amended:
Prnoidad further, That, upon his application for an immigrant vies, and fur

his admission into the United States, the alien is found to have retained his
relationship to the petitioner, and status, as established in the approved
petition.
1

22 CFR 42.32.

93

The original visa petition according the beneficiary third preference status was initially approved on January 31, 1958, and it is
apparent that he satisfies the prerequisites of section 4 of the Act
of September 22, 1959. In addition, it has been established that the
petitioner was admitted to the United States under the provisions
of the Refugee Relief Act of 1953, as amended, and The requirements of section 6 of the same Act also appear to be satisfied. The
issue, however, is in the construction to be placed upon the provisos
to section 4 and to section 6, containing identical language to the
effect that it must be found that the alien has "retained his relationship to the petitioner, and status, as established in the approved
petition." There is no controversy as to the relationship which is
conceded to be established. The Service finds that the beneficiary

has the requisite status in that the significant word relevant to
status is "unmarried." The Assistant Commissioner in his order of
April 11, 1960, traces the history of the legislative action, the final
draft of section 4 changing "the unmarried son or daughter under
21 years of age" to "the children of such alien"; and section 2 of
which changes section 203(a) (3) of the Immigration and Nationality Act from "children" to "unmarried sons and daughters"
thereby granting adult unmarried beneficiaries the same preference
as minor unmarried children.
The Department of State in a memorandum dated June 30, 1960,
and in oral argument before this Board expresses the view that the
proper interpretation to be placed upon the word "status" contained
in the provisos to sections 4 and 6 of the Act of September 22, 1959
is that the beneficiary in order to qualify be not only unmarried but
also under 21 years of age. The State Department argument cites
the use of the terms "unmarried son or daughter under 21 years of
11.07" and "minor children" in several amendments, as well as the
legislative history, and contends a literal reading of the statutory
language requires that the unmarried adult sons or daughters of
aliens lawfully admitted for permanent residence cannot qualify for
the benefits of section 4 or section 6 of the Act of September 22,
1959, regardless of whether they attained the age of 21 years before
or after September 22, 1959.
The language contained in the proviso to sections 4 and 6 of the
Act of September 22, 1959 (Public Law 86-363) is not the first instance of the use of such language. Thus, the same proviso appears
in motion 12 of the Act of September 11, 1957.
Any alien eligible for a quota Immigrant status under the provisions of
section 203(a) (1), (2), or (3) of the Immigration and Nationality Act on the
basis of a petition approved by the Attorney General prior to July 1, 1957,
shall be held to be a nonquota immigrant and, if otherwise admissible under
the provisions of that Act, shall be issued a nonquota immigrant visa: Provided, That, upon his application for an Immigrant visa, and for admission to

94

tne United States, the alien is found to have retained his relationship to the
petitioner, and status, as established in the approved petition.

The legislative report on the Act of September 11, 1957 2 states
that the purpose of the bill was to grant nonquota immigrant status
in a limited number of cases to certain skilled specialists, alien
parents of United States citizens and the spouses and children of
aliens lawfully admitted for permanent residence on behalf of whom
a petition for the preference status under the Immigration and
Nationality Act was approved by the Attorney General prior to
July 1, 1957. It appears clear from this language that the class
eligible for advancing from oversubscribed first, second and third
preferences into nonquota status under section 12 of the Act of
September 11, 1957 was required to qualify for the first, second and
third preferences as of the cutoff approval date of July 1, 1957.
Similarly, section 4 of the Act of September 22, 1959 requires the
alien to have been registered on a consular waiting list under a
priority date earlier than December 31, 1953, and that he be eligible
for a quota immigrant status under the pruvisfoith of section 203
(a) (2), (3) or (4) of such Act on the basis of a petition approved
by the Attorney General prior to January 1, 1959, in order for the
alien, his spouse and children to qualify as nonquota immigrants.
In connection with this section, the House legislative report to
accompany H.R. 5896 3 which later became the Act of September 22,
1959, stated that a considerable number of prospective immigrants
remained registered under registration dates earlier than December 24, 1952, although preference status was made available to them
under the 1952 Act; and that it was considered equitable and in
accordance with the general family uniting principle , of the immigration laws to enable the beneficiaries of the preference petitions
filed by their relatives (within the statutory limits of consanguinity)
to be reclassified into nonquota status if their names appeared on
consular waiting lists under a date earlier than December 24, 1952;
and that this result was achieved by section 4 of H.R. 5896. The
amendment to this section included into the nonquota category the
accompanying spouses and minor children of the beneficiaries of
the approved preference petitions. The House Report also comments that section 6 of the bill was designed to complete the operation of the Refugee Relief Ant. of 1952, as amended, by permitting
the entry in a nonquota status by the members of immediate families (second and third preference quotas) of those beneficiaries of
the 1953 law who chose to come to the United States without their
close relatives and now desire to have their families reunited.

A careful consideration of the arguments advfinced by the oppos2

Senate Report . No. 1057 (85th Cong., lst Seas.), p. 3.

House Report No. 582 (86th Cong.,

1st sess.),
95

pp. 3 4.
-

ing parties indicates that the difficulty arises because of an apparent
confusion occasioned by the language of section 2 of the Act of September 22, 1959 changing third preference status under section 203
(a) (3) of the Immigration and Nationality Act from "children"
to "unmarried sons and daughters"; and those portions of sections 4
and 6 of the Act of September 22, 1959 moving into nonquota status
relative-designated preference visa petitions approved prior to January 1, 1959; and section 4 which also covered into the nonquota
classification the spouse and minor children of the beneficiary of the
previously approved second and third preference visa petition. Section 203(a) (3) as amended by section 2 of the Act of September 22,
1959 has no connection with sections 4 and 6 of the amendatory act.
The beneficiaries referred to in sections 4 and 6 are the beneficiaries
of old visa petitions approved prior to January 1, 1959, who retain
that relationship and status. The spouse and children of such beneficiaries referred to in section 4 of the Act of September 22, 1959
are the spouse and children acquired by the beneficiary after approval of the visa petition, such approval having been prior to
January 1, 1959.
A study of the language of section 12 of the Act of September 11,
1957 and of sections 4 and 6 of the Act of September 22, 1959, as
well as the legislative history as set forth above, leads to the conclusion that the proviso regarding retention of relationship to the
petitioner and status refers not to the beneficiary's present marital
status or his age, but refers to the consanguinity which gave the
alien beneficiary second. third or fourth preference status as the
result of the approval of his visa petition prior to January 1, 1959. 4
Sincesto4fhASepmbr2,195itshenfciary of the petition approved prior to January 1, 1959, and who
has been on a waiting list since December 31, 1953, to bring in his
accompanying wife and children, it is apparent that the marital
status of the beneficiary or his minority is not involved in the words
in the proviso regarding wetention of relationship and status. All
that is required is that the beneficiary retain the relationship which
gave the beneficiary the preference status, such as a child, including
a stepchild or adopted child, or a parent, including a stepparent or
adoptive parent, to the petitioner at the time the visa petition was

approved prior to January 1, 1959.. As long as the beneficiary remains in the eligible class in which he qualified for the second or
third preference prior to January 1, 1959, he complies with the prowas
4 Prior to January 1, 1959, preference status under section 203(a) (2)
available to parents of citizens of the United States, such citizens being at
least 21 years of age; preference under section 203(a) (3) was available for
immigrants who were the spouses or the children of aliens lawfully admitted
for permanent residence, and preference under section 203(a) (4) was granted
to brothers, sisters, sons or daughters of citizens.

96

VISO regarding relationship and status_ Tf, for exa mple, an adoption

has been terminated or the marriage creating a stepchild relationship has been dissolved, such a person would no longer have the
relationship which qualified him initially for the second or third
preference status.
In the instant case it has been established that the beneficiary
was the subject of an approved third preference quota classification
under section ‘203(a) (3) of the Immigration and Nationality Act
prior to January 1, 1959, and there has been no interruption in his
relationship or status. It has also been established that the petitioner was admitted to the United States for permanent residence
under the Refugee Relief Act of 1953, as amended, thereby qualifying the beneficiary under the provisions of section 6 of the Act of
September 22, 1959. The beneficiary, therefore, may be approved
for nonquota status either under section 4 or section 6 of the Act of
September 22, 1959. The visa petition has been revalidated ab
initio. We will approve the visa petition for nonquota status.
ORDER: Tt, is ordered that the visa petition he -approved for non-

quota status under sections 4 and 6 of the Act of September 22, 1959.

97
654377-- 63 —s


Cite as 27 I&N Dec. 733 (BIA 2020)

Interim Decision #3972

Matter of Haji Osman SALAD, Respondent
Decided January 2, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of making terroristic threats in violation of section 609.713, subdivision 1,
of the Minnesota Statutes is categorically a crime involving moral turpitude.
FOR RESPONDENT: John Robert Bruning, Esquire, St. Paul, Minnesota
FOR THE DEPARTMENT OF HOMELAND SECURITY: Laura W. Trosen, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, Acting Chairman; LIEBOWITZ, Board Member;
NOFERI, Temporary Board Member.
NOFERI, Temporary Board Member:

In a decision dated January 17, 2019, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(ii) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2012), as an alien who has
been convicted of two or more crimes involving moral turpitude not arising
out of a single scheme of misconduct, and denied his applications for relief
from removal. The respondent has appealed from that decision. The
Department of Homeland Security (“DHS”) has also appealed, challenging
the Immigration Judge’s determination that one of the respondent’s offenses
was not a crime involving moral turpitude. The DHS’s appeal will be
sustained, and the record will be remanded to the Immigration Judge for
further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Somalia, who was admitted to
the United States as a refugee in 2001 and adjusted his status to that of a
lawful permanent resident on October 4, 2005. On June 15, 2010, he was
convicted of burglary in violation of section 609.582, subdivision 3, of the
Minnesota Statutes, and of making terroristic threats in violation of section
609.713, subdivision 1. He was convicted on June 29, 2010, of giving a false
name to a police officer in violation of section 171.22, subdivision 1(8).

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Interim Decision #3972

The Immigration Judge’s finding of removability was based on the
respondent’s convictions for burglary and giving a false name to a police
officer. The respondent challenges that finding, arguing that the offense of
giving a false name to a police officer is not a crime involving moral
turpitude. The DHS asserts that the Immigration Judge improperly held that
the crime of making terroristic threats does not categorically involve moral
turpitude.
During the pendency of the appeal, the respondent filed a motion
to remand and terminate the proceedings, accompanied by supporting
documentation. He argues that because the two convictions that the
Immigration Judge found were for crimes involving moral turpitude have
since been vacated by the Minnesota criminal courts, we should terminate
his proceedings or remand with instructions to terminate. The DHS opposes
termination and seeks a remand for the Immigration Judge to make findings
in the first instance regarding the vacatur of those two convictions. With its
opposition, the DHS also lodged an additional charge that the respondent is
removable as an alien convicted of an aggravated felony under section
237(a)(2)(A)(iii) of the Act based on a fourth conviction, and it requested a
remand. See 8 C.F.R. § 1003.30 (2019) (providing that the DHS may lodge
additional charges at any time during removal proceedings).
We will address the unsettled issue appealed by the DHS. In light of our
determination that the offense of making terroristic threats in violation of
section 609.713, subdivision 1, of the Minnesota Statutes is categorically a
crime involving moral turpitude, we will remand the record to the
Immigration Judge for further proceedings to address the respondent’s
removability under section 237(a)(2)(A)(ii) of the Act, as well as any
amended charges or other issues presented. 1

II. ANALYSIS
A. Crimes Involving Moral Turpitude
To determine whether a particular offense involves moral turpitude, we
employ the categorical approach, which requires us to focus on the elements
of the offense and the minimum conduct that has a realistic probability of
being prosecuted under the statute at issue, rather than the alien’s actual
conduct. Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA 2016); accord
Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1058 (8th Cir. 2016). Under this
1

The respondent also states on appeal that he “apprises the Board that the [current
Immigration Judge] may have had an inherent conflict of interest requiring recusal.” On
remand, the respondent may raise the issue of recusal before the Immigration Judge in the
first instance.

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Interim Decision #3972

test, assessing the minimum conduct criminalized by the statute is “not an
invitation to apply ‘legal imagination’ to the state offense.” Moncrieffe
v. Holder, 569 U.S. 184, 191 (2013) (quoting Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007)). Specifically, there must be “a realistic
probability, not a theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of a crime.” Id. “If a
violation of the statute of conviction is not categorically a crime involving
moral turpitude, the next step is to determine whether the statute is divisible
so that the modified categorical approach may be applied.” Matter of
Mendez, 27 I&N Dec. 219, 221 (BIA 2018) (citing Matter of Silva-Trevino,
26 I&N Dec. at 833; Matter of Chairez, 26 I&N Dec. 819, 822 (BIA 2016)).
A crime involves moral turpitude if its elements require reprehensible
conduct and a culpable mental state. Matter of Silva-Trevino, 26 I&N Dec.
at 834; accord Alonzo v. Lynch, 821 F.3d 951, 958 (8th Cir. 2016). Conduct
is “reprehensible” if it is “inherently base, vile, or depraved, and contrary to
the accepted rules of morality and the duties owed between persons or to
society in general.” Matter of Leal, 26 I&N Dec. 20, 25 (BIA 2012) (citation
omitted); accord Adame-Hernandez v. Barr, 929 F.3d 1020, 1022 (8th Cir.
2019) (quoting Guardado-Garcia v. Holder, 615 F.3d 900, 902 (8th Cir.
2010)).
A culpable mental state requires “some degree of scienter, either specific
intent, deliberateness, willfulness, or recklessness.” Matter of Louissaint,
24 I&N Dec. 754, 756–57 (BIA 2009). Crimes that require specific intent
are more likely to be considered to involve moral turpitude because they are
committed with the evil intent or depraved mind associated with moral
turpitude. See Matter of Ajami, 22 I&N Dec. 949, 950 (BIA 1999) (“Among
the tests to determine if a crime involves moral turpitude is whether the act
is accompanied by a vicious motive or a corrupt mind.”); see also Matter of
J-G-P-, 27 I&N Dec. 642, 650 (BIA 2019) (finding that the crime of
menacing involved moral turpitude because it required “the specific intent to
cause fear of imminent serious physical injury”); cf. Matter of Solon, 24 I&N
Dec. 239, 241 (BIA 2007) (stating that simple assault crimes “are generally
not considered to be crimes involving moral turpitude . . . because they
require general intent only”).
However, we have held that “[m]oral turpitude may also inhere in
criminally reckless conduct.” Matter of Solon, 24 I&N Dec. at 240; see also
Matter of Torres-Varela, 23 I&N Dec. 78, 83 (BIA 2001) (collecting cases
and stating that “a specific intent is not a prerequisite to finding that a crime
involves moral turpitude”). Recklessness is a sufficiently “culpable mental
state for moral turpitude purposes where it entails a conscious disregard of a
substantial and unjustifiable risk posed by one’s conduct.” Matter of Leal,
26 I&N Dec. at 23 (collecting cases).
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Interim Decision #3972

B. Minnesota Terroristic Threats Statute
At all relevant times, section 609.713, subdivision 1, of the Minnesota
Statutes has provided as follows:
Whoever threatens, directly or indirectly, to commit any crime of violence with
purpose to terrorize another or to cause evacuation of a building, place of assembly,
vehicle or facility of public transportation or otherwise to cause serious public
inconvenience, or in a reckless disregard of the risk of causing such terror or
inconvenience may be sentenced to imprisonment for not more than five years or to
payment of a fine of not more than $10,000, or both. As used in this subdivision,
“crime of violence” has the meaning given “violent crime” in section 609.1095,
subdivision 1, paragraph (d). 2

Minnesota model jury instructions distill this offense into the following
actus reus and mens rea elements: (1) a direct or indirect threat to commit a
crime of violence, which was (2) made with the intent to terrorize another—
or in reckless disregard of the risk of causing such terror, or with the purpose
to cause evacuation of a building, place of assembly, or facility of
public transportation, or to cause serious public inconvenience—or in
reckless disregard of the risk of causing such evacuation or inconvenience.
10 Minnesota Practice, CRIMJIG 13.107; see also State v. Schweppe, 237
N.W.2d 609, 613 (Minn. 1975) (reviewing and addressing the “essential
elements of this offense”). The statute is patterned after the relevant Model
Penal Code section, which remains substantively similar today. Schweppe,
237 N.W.2d at 613 (citing Model Penal Code § 211.3 (1971)). 3
The Minnesota Supreme Court has defined the element of “threat” as a
“declaration of an intention to injure another or his property by some
unlawful act.” Id. The threat is not limited to spoken or written threats and
includes “communication” that, when perceived in context, would “have a
reasonable tendency to create apprehension that its originator will act
according to its tenor.” Id. (citation omitted); see also State v. Murphy, 545
N.W.2d 909, 915 (Minn. 1996) (per curiam). As the Minnesota terroristic
2

Subsequent to the date of the respondent’s conviction, the Minnesota legislature
changed the title of section 609.713 from “Terroristic Threats” to “Threats of Violence.”
2015 Minn. Sess. Law Serv. ch. 21 (S.F. No. 1218), art. 1, sec. 109, subd. 10 (West).
3
Section 211.3 of the Model Penal Code, titled “Terroristic Threats,” provides:
A person is guilty of a felony of the third degree if he threatens to commit any crime
of violence with purpose to terrorize another or to cause evacuation of a building,
place of assembly, or facility of public transportation, or otherwise to cause serious
public inconvenience, or in reckless disregard of the risk of causing such terror or
inconvenience.

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Interim Decision #3972

threats statute provides, the term “‘crime of violence’ has the meaning given
‘violent crime,’” defined in section 609.1095, subdivision 1, paragraph (d),
as “a violation of or an attempt or conspiracy to violate any of [45 specific]
laws of this state or any similar laws of the United States or any other state.” 4
The Minnesota statute’s two possible forms of scienter are “purpose,”
which “in this context means aim, objective, or intention,” Schweppe, 237
N.W.2d at 614, and “recklessness,” which “requires deliberate action in
disregard of a known, substantial risk,” State v. Bjergum, 771 N.W.2d 53,
57 (Minn. App. 2009). The term “terrorize” has been construed as meaning
“to cause extreme fear by use of violence or threats.” State v. Franks, 765
N.W.2d 68, 74 (Minn. 2009) (quoting Schweppe, 237 N.W.2d at 614). The
Minnesota courts have not had occasion to construe the terms “cause
evacuation” or “otherwise to cause serious public inconvenience.”
Applying the categorical analysis articulated in Matter of Silva-Trevino
for determining whether a crime involves moral turpitude, we conclude that
making terroristic threats in violation of section 609.713, subdivision 1, of
the Minnesota Statutes is categorically a crime involving moral turpitude.
C. Eighth Circuit Case Law
In reaching our conclusion, we do not write on a blank slate. The United
States Court of Appeals for the Eighth Circuit, in whose jurisdiction this
matter arises, has twice issued precedential decisions holding that in certain
instances, the conduct prohibited under section 609.713, subdivision 1, of the
Minnesota Statutes constitutes a crime involving moral turpitude. In
Chanmouny v. Ashcroft, 376 F.3d 810, 814 (8th Cir. 2004), the Eighth Circuit
held that moral turpitude necessarily inheres in a violation of this provision
where the threat is made with the purpose of terrorizing a victim, stating that
“threatening a crime of violence against another person with the purpose of

4

The “crimes of violence” incorporated under Minnesota law include first degree murder
(section 609.185); first degree manslaughter (section 609.20); first degree assault (section
609.221, subdivision 1); robbery (section 609.24); and first degree criminal sexual conduct
(section 609.342), as well as dangerous crimes that do not include the use of physical
force as an element, such as manufacturing methamphetamine in the presence of a child
(section 152.137, subdivision 2(a)(1)); kidnapping (section 609.25); child neglect (section
609.378); arson of an unoccupied building (section 609.562); stalking (section 609.749);
and shooting in a public transit vehicle (section 609.855, subdivision 5). Cf. United States
v. Sanchez-Martinez, 633 F.3d 658, 660 (8th Cir. 2011) (stating, in the context of the U.S.
Sentencing Guidelines, that “[u]nder Minnesota law, ‘crime of violence’ as used in
§ 609.713(1) includes some offenses that do not have as an element the use of physical
force against another”).

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Interim Decision #3972

causing extreme fear . . . falls within the category of offenses requiring a
vicious motive or evil intent.” 5
More recently, the Eighth Circuit affirmed that acting with reckless
disregard of the risk of terrorizing a victim was also “sufficient to satisfy
the scienter requirement for turpitudinous offenses.” Avendano v. Holder,
770 F.3d 731, 735 (8th Cir. 2014). In so holding, the court noted that it
had previously found reasonable our determination that crimes involving
moral turpitude “encompass offenses committed with a mental state of
recklessness” and need not necessarily be accompanied by a vicious motive
or a corrupt mind or an “aggravating factor.” 6 Id. at 735–36 (citing Franklin
v. INS, 72 F.3d 571, 573 (8th Cir. 1995)).
We understand Chanmouny and Avendano to stand for the proposition
that threatening to commit a crime of violence is also inherently
reprehensible when the purpose or natural tendency of the threat is “to
terrorize another,” regardless of whether anyone is actually terrorized by it.
However, the Avendano court did not address whether threatening a crime of
violence with reckless disregard of the risk of causing terror is “reprehensible
conduct,” because the petitioner waived that issue. Avendano, 770 F.3d
at 736. Likewise, the Eighth Circuit has left open whether it is necessarily
reprehensible to violate that part of the Minnesota statute that prohibits
making threats “with purpose . . . to cause evacuation of a building, place of
assembly, vehicle or facility of public transportation or otherwise to cause
serious public inconvenience, or in a reckless disregard of the risk of causing
such . . . inconvenience.” Id.; see also Chanmouny, 376 F.3d at 812–13.
We hold that the full range of conduct prohibited by section 609.713,
subdivision 1, of the Minnesota Statutes entails “reprehensible” conduct.
D. Threats to Terrorize Another
First, we conclude that the communication of an intent to injure another
by use of violence involves sufficiently reprehensible conduct to constitute a
crime involving moral turpitude. We have previously held that crimes
involving the intentional transmission of threats entail turpitudinous conduct.
See Matter of Ajami, 22 I&N Dec. at 952; see also Matter of C-, 5 I&N Dec.
5

This holding is consistent with the views of other circuits and our own precedent. See
Javier v. Att’y Gen. of U.S., 826 F.3d 127, 131 (3d Cir. 2016); Latter-Singh v. Holder, 668
F.3d 1156, 1163 (9th Cir. 2012); Matter of J-G-P-, 27 I&N Dec. at 644–50; Matter of
Ajami, 22 I&N Dec. at 952.
6
The Avendano court noted our statement that “when we have held that a ‘reckless’ mens
rea required either serious bodily injury or some other aggravating factor to establish moral
turpitude,” it has generally been “in the specific context of assault offenses.” Avendano,
770 F.3d at 736 (quoting Matter of Ruiz-Lopez, 25 I&N Dec. 551, 554 (BIA 2011)).

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370, 376 (BIA 1953) (threats to take property by force); Matter of G-T-,
4 I&N Dec. 446, 447 (BIA 1951) (sending threatening letters with the intent
to extort money); Matter of F-, 3 I&N Dec. 361, 362–63 (C.O. 1948; BIA
1949) (mailing menacing letters that demanded property and threatened
violence to the recipient).
We conclude that the transmission of threats to commit a crime of
violence, made either with the specific intent to “terrorize” another or with a
conscious disregard of a substantial and unjustifiable risk of terrorizing
another, is reprehensible conduct. Matter of Ajami, 22 I&N Dec. at 950, 952.
In Matter of J-G-P-, 27 I&N Dec. at 647, we held that menacing under
Oregon law is categorically a crime involving moral turpitude, in part
because “the level of threatened harm, or magnitude of menace implicit in
the threat, is serious and immediate.” Similarly, the Minnesota statute at
issue here necessarily entails reprehensible conduct, because “terrorizing”
has been defined as involving a level of fear that is “extreme,” caused by use
of violence or threats. See Javier v. Att’y Gen. of U.S., 826 F.3d 127, 131
(3d Cir. 2016) (stating that the purpose of statutes criminalizing terroristic
threats is to prevent the harm of “psychological distress that follows from an
invasion of another’s sense of personal security” (citations omitted)).
In this regard, we clarify that making a threat to commit a crime of
violence in violation of Minnesota’s terroristic threats statute is a crime
involving moral turpitude, even if the threatened crime would not necessarily
qualify as a crime involving moral turpitude. 7 The Immigration Judge’s
7

In United States v. Mcfee, 842 F.3d 572, 574–77 (8th Cir. 2016), the Eighth Circuit
found that the term “crime of violence” in the Minnesota statute was not divisible, in the
context of determining whether a predicate offense existed under the Armed Career
Criminal Act (“ACCA”) under the “force clause”—that is, whether the defendant had three
previous convictions for a violent felony under 18 U.S.C. § 924(e)(1) (2012). A “violent
felony” is defined by the ACCA “to include any federal or state offense punishable by
imprisonment of more than one year that[, inter alia,] ‘has as an element the use, attempted
use, or threatened use of physical force against the person of another.’” Id. at 574 (quoting
18 U.S.C. § 924(e)(2)(B)). The Eighth Circuit concluded that the term “crime of violence”
was intended to be an element and the list of violent crimes in the statute to be the means
of committing that element. Mcfee, 842 F.3d at 575. Accordingly, the court did not apply
the modified categorical approach in determining whether a “crime of violence” existed.
Previously, before the Supreme Court decided Mathis v. United States, 136 S. Ct. 2243
(2016), a different Eighth Circuit panel had applied the modified categorical approach in
determining whether a violation of Minnesota’s terroristic threats statute constituted a
“crime of violence” under 18 U.S.C. § 16(a) (2012), and thus an aggravated felony under
section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2012). Olmsted v. Holder,
588 F.3d 556, 559–60 (8th Cir. 2009).
Assuming that in this jurisdiction the term “crime of violence” is not divisible, we find
that the offense of making terroristic threats encompasses sufficient culpability to be a

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analysis centered upon whether moral turpitude inheres in the underlying
threatened “crime of violence.” 8 But this overlooks the reprehensibility of a
terroristic threat itself, which exists regardless of the particular underlying
threatened crime. As the Third Circuit explained,
Our focus in determining whether [a terroristic threat] is categorically a crime
involving moral turpitude is not the threatened ‘crime of violence,’ but the
communication of the threat and its requisite scienter. After all, the harm that [a
terroristic threat statute] seeks to prevent is not the ‘crime of violence,’ but rather the
consequences of the threat . . . .

Javier, 826 F.3d at 131. We believe this complements the Eighth Circuit’s
analysis in Chanmouny and Avendano, which rested on the tendency of a
threat to terrorize the victim, rather than on the underlying threatened “crime
of violence.” See id. at 131–32 (citing Chanmouny, 376 F.3d at 814–15).
Our review of Minnesota case law bears out our determination that
making terroristic threats with a specific intent or recklessness towards
terrorizing another person is reprehensible conduct and that there is no
realistic probability that the State would successfully prosecute conduct that
is not reprehensible. See, e.g., State v. Smith, 825 N.W.2d 131, 135–37
(Minn. 2012) (upholding a conviction where the defendant’s conduct during
an ongoing confrontation—waving a knife four feet away from the victim
and demanding money—constituted a “threat” to the assault victim in the
future if he did not give the defendant money); State v. Dick, 638 N.W.2d
486 (Minn. 2002) (upholding a conviction where the defendant threatened to
kill the arresting police officers, to find out where they lived, and to “skin”
an officer while spitting and trying to bite and kick him); State v. Begbie, 415
N.W.2d 103 (Minn. 1987) (upholding a conviction where the defendant
telephoned his victims at home and made threats that, unless they assumed
his debt, a member of Australian Mafia organization would execute them).
crime involving moral turpitude, for the reasons stated above. The Immigration Judge
found that the statute is divisible as to the two mens rea prongs but indivisible as to the
term “crime of violence,” and he analyzed whether moral turpitude inheres in the particular
underlying “crime of violence” in section 609.1095, subdivision 1(d), of the Minnesota
Statutes that the respondent threatened to commit. Because we conclude that a threat to
commit any of the listed crimes of violence may be a crime involving moral turpitude even
if the threatened crime would not so qualify, we find that analysis unnecessary.
8
In addressing Minnesota’s “crimes of violence,” the Immigration Judge noted that the
definition of a “crime of violence” includes a drug possession crime that he found was not
a crime involving moral turpitude. However, in reviewing the State case law, we cannot
discern a “realistic probability” that Minnesota would successfully prosecute a threat to
possess hallucinogenics under section 152.024, subdivision 2(1) of the Minnesota Statutes,
for the purpose of terrorizing another or causing an evacuation or public inconvenience, or
with reckless disregard of the risk of causing such terror or inconvenience.

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The respondent cited his own case to argue that Minnesota would
prosecute conduct that does not involve moral turpitude, but we consider his
conviction to be within the State precedent. It is undisputed that the
respondent jumped the counter at a Walmart and pointed a pair of scissors at
a clerk in an attempt to retrieve his identification card from the clerk, who,
suspecting that the respondent was using a fraudulent bank card, was taking
down information from his identification card. The respondent’s suggestion
on appeal, made without any legal or evidentiary support, that the Walmart
clerk was “confiscating” his cards “unlawfully” and may have intended to
“destroy one or both cards” does not justify, lessen, or eliminate the
reprehensibility of his actions.
Nor are we persuaded that the cases cited by the Immigration Judge and
the respondent demonstrate a realistic probability that the Minnesota
terroristic threats statute would be applied to conduct that is not
reprehensible. See Avendano, 770 F.3d at 739 (Kelly, J., concurring and
dissenting in part) (raising similar concerns). In State v. Balster, No.
A06-1742, 2008 WL 134984 at *1–2 & n.3 (Minn. Ct. App. Jan. 15, 2008),
the defendant, angry about his arrest, threatened to harm the arresting police
officer in a recorded phone call and later, when the same officer served
the defendant with a forfeiture notice for his truck, told him, “You’re a
dead [expletive] when I get out!”
In State v. Sailee, No. C3-98-1744, 1999 WL 486597, at *1 (Minn. Ct.
App. July 13, 1999), the defendant threatened a police officer at the
courthouse that he was “going to be hung after this” and later, in the parking
lot, flashed a gang sign at him, which an expert witness testified was “meant
to show that the threat was serious.” Although the Immigration Judge
described the defendant’s conduct as “vague hand gestures,” the court
concluded that his “words and his hand gesture, considered together and in
context, had a reasonable tendency to cause fear of a future act of violence.”
Id. at *2. Finally, in State v. Rund, 896 N.W.2d 527, 530 (Minn. 2017), the
defendant tweeted a series of threats to “hunt and kill cops,” to find the
trooper with whom he had a disagreement during a vehicle stop, and to throw
a grenade at police officers. Contrary to the respondent’s assertion, these
were not mere “sophomoric threats.” 9 We consider the conduct in the above
cases to be “inherently base, vile, or depraved.” Matter of Leal, 26 I&N Dec.
at 25.

9
The respondent also cited, without further elaboration, Schweppe, involving the
communication of threats to kill a teenaged boy, and Bjergum, upholding the defendant’s
conviction for recklessly making terroristic threats where he threatened to bring guns to his
workplace and open fire. In both cases, the defendant was prosecuted for turpitudinous
conduct.

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E. Threats To Cause Evacuation or Serious Public Inconvenience
We further hold that making threats “with purpose . . . to cause evacuation
of a building, place of assembly, vehicle or facility of public transportation
or otherwise to cause serious public inconvenience, or in a reckless disregard
of the risk of causing such . . . inconvenience” is reprehensible conduct.
From the beginning of our jurisprudence on “moral turpitude,” we have
defined that term as a violation of the “duties owed between persons or to
society in general.” Matter of Leal, 26 I&N Dec. at 25; see also, e.g., Matter
of Serna, 20 I&N Dec. 579, 582 (BIA 1992); Matter of Danesh, 19 I&N Dec.
669, 670 (BIA 1988); accord Adame-Hernandez, 929 F.3d at 1022. 10
Here, we find that making terroristic threats under Minnesota law with
the specific intent or recklessness to cause evacuation or serious public
inconvenience categorically violates the accepted rules of morality and
duties owed between persons or to society in general, to an extent that
necessarily entails reprehensible conduct. Cf. Schenck v. United States, 249
U.S. 47, 52 (1919) (Holmes, J.) (stating that “falsely shouting fire in a theatre
and causing a panic” is not constitutionally protected behavior because the
words are “used in such circumstances and are of such a nature as to create a
clear and present danger”). We have previously held that conspiracy to
defraud the United States by impeding or obstructing lawful Government
functions is a crime involving moral turpitude. See Matter of Flores, 17 I&N
Dec. 225, 229–30 (BIA 1980); Matter of E-, 9 I&N Dec. 421, 427 (BIA 1961)
(collecting cases). The nature of that crime is similar to the respondent’s
offense in that it entails interference with societal public order serious enough
to violate the duties owed to society.
We note that the Minnesota statute requires either evacuation or “serious”
public inconvenience, which ensures that threats resulting in minor societal
interference are not criminalized. Indeed, our review of Minnesota case law
indicates that convictions that could fall under this prong of this statute
involve, at minimum, reckless disregard that deployment of significant
public resources would result from the violators’ actions. Cf. State v. Tanis,
10

While the precise formulation has changed, the concept that crimes involving moral
turpitude encompass violations of duties to society has remained constant. See, e.g., Matter
of Serna, 20 I&N Dec. at 582 (stating that the Attorney General defined moral turpitude as
“anything done contrary to justice, honesty, principle, or good morals; an act of baseness,
vileness or depravity in the private and social duties which a man owes to his fellow man,
or to society in general contrary to the accepted and customary rule of right and duty
between man and man” (quoting 37 Op. Att’y Gen. at 294)); Matter of Danesh, 19 I&N
Dec. at 670 (stating that moral turpitude “refers generally to conduct that shocks the public
conscience as being inherently base, vile, or depraved, contrary to the rules of morality and
the duties owed between man and man, either one’s fellow man or society in general”);
Matter of G-, 1 I&N Dec. 73, 76 (BIA, A.G. 1941) (quoting 41 Corpus Juris 212).

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247 S.W.3d 610, 614–15 (Mo. Ct. App. 2008) (affirming a conviction under
an analogous terroristic threats statute where the defendant made a false
report that explosives were in his parked truck in the middle of a college
campus “with reckless disregard of the risk of causing the evacuation of [the]
University.”). For example, in State v. Morris, 609 N.W.2d 242, 247 (Minn.
Ct. App. 2000), the appeals court upheld a conviction under the Minnesota
statute where the defendant precipitated a lengthy “standoff” with dozens of
police officers dispatched to address the hostage situation he created by
barricading himself inside a house and threatening to shoot officers if they
entered, forcing the evacuation of residences and creating an immediate risk
of physical harm to police officers and his neighbors.
Again, we are not persuaded that the cases cited by the Immigration Judge
and the respondent demonstrate a realistic probability that Minnesota would
successfully prosecute conduct that is not reprehensible under the statute. In
In re J.P.M., No. C9-99-1760, 2000 WL 665682, at *1–3 (Minn. Ct. App.
May 23, 2000), a juvenile told students that he was bringing a gun to school,
which he had threatened to bomb, and he knew or had reason to know that
his comments might cause terror or evacuation of the school because he was
aware of the Columbine High School shooting the day before. Id. at *3. 11
Moreover, while these convictions fall under the “evacuation” or “serious
public inconvenience” prong of the statute, it is significant that each
conviction also involved a threat to terrorize a victim or victims. Neither the
Immigration Judge nor the respondent has identified, and we have not found,
any Minnesota case where the conviction under section 609.713, subdivision
1, did not also involve a threat made with either the purpose to terrorize or
conscious disregard of a substantial and unjustifiable risk of terrorizing, that
is, causing extreme fear. See Matter of Lopez-Mesa, 22 I&N Dec. 1188, 1196
(BIA 1999) (“The finding of moral turpitude . . . results from a building
together of elements by which the criminalized conduct deviates further and
further from the private and social duties that persons owe to one another and
to society in general.”). Clearly, terrorizing a neighborhood or school
community is at least as reprehensible as terrorizing an individual. Cf.
Matter of McNaughton, 16 I&N Dec. 569, 574 (BIA 1978) (“Intent to
defraud the investing public, which is an entire segment of society, is at least
as heinous as intent to defraud an individual or the Government . . . .”). Thus,
11
Similarly, in In re M.J.S., No. C3-00-76, 2000 WL 1015886 (Minn. Ct. App. July 25,
2000), a juvenile was witnessed writing the words “Bomb on Monday” on the locker room
walls in the wake of the Columbine High School shooting and two prior school evacuations
following bomb threats. Despite his claim that this writing was nothing more than a “joke
or a flippant remark,” the court found that he recklessly disregarded the terror his statement
would cause under the circumstances. Id. at *2. Although that case involved a charge
under subdivision 2 of section 609.713, it is nevertheless instructive. Id. at *1.

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we find no realistic probability that the Minnesota statute would successfully
be used to criminalize conduct that is not reprehensible. We therefore hold
that the Minnesota terroristic threats statute categorically involves
reprehensible conduct that is “contrary to accepted rules of morality and the
duties owed between persons or to society in general.” Chanmouny, 376
F.3d at 812 (quoting Matter of Ajami, 22 I&N Dec. at 950).
Finally, we note that in his motion to terminate, the respondent cited cases
that did not result in a successful prosecution, either because the case
never proceeded beyond charging or the conviction was ultimately vacated
by a reviewing court for insufficient evidence. See State v. Thulin, No.
K1-01-2048, 2002 WL 34091879 (Minn. Dist. Ct. Mar. 26, 2002); see also
State v. Graf, No. A11-617, 2012 WL 987282 (Minn. Ct. App. Mar. 26,
2012). Such evidence is not sufficient to demonstrate a realistic probability.
See Matter of Mendoza Osorio, 26 I&N Dec. 703, 707 & nn.3–4 (BIA 2016)
(providing that only evidence of a successful prosecution establishes a
realistic probability of prosecution and that a conviction vacated on appeal
or evidence regarding the initiation of charges is insufficient).
In sum, having considered the case law implementing the “terrorizing,”
and “evacuation or . . . serious public inconvenience” prongs of section
609.713, subdivision 1, we are convinced that moral turpitude inheres in the
least culpable conduct that has a realistic probability of being prosecuted
under the statute. A violation of the statute, which entails making threats to
commit a crime of violence with the purpose or reckless disregard of
terrorizing another or of causing an evacuation or other serious public
inconvenience, is categorically a crime involving moral turpitude.
F. Remand
The respondent has filed a motion to remand and to terminate his removal
proceedings, and the DHS has lodged an additional charge of removability
on appeal. We will remand the record for further proceedings to consider the
respondent’s removability based on the original charges and any amended
charges. On remand, both parties may proffer evidence of the current status
of the respondent’s criminal convictions and any other admissible evidence
relevant to the issue of removability. In view of our disposition, we need not
now address the respondent’s challenge to the Immigration Judge’s decision
denying his applications for relief from removal.
ORDER: The appeal of the Department of Homeland Security is
sustained and the decision of the Immigration Judge is vacated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
744


Interim Decision #2172

MATTER OF SIPUS
In Deportation Proceedings

A-14293683
Decided by Board November 10, 1972
(1) A mere showing that an alien has achieved the minimum statutory period of
continuous physical presence for suspension of deportation does not, without
more, justify granting a motion to reopen the deportation proceedings to
permit an application for suspension.
(2) A motion to reopen the proceedings should disclose all prior and pending
judicial litigation in the case.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant
visitor—remained longer than permitted.
ON BEHALF OF RESPONDENT:
Hiram W. Kwan, Esquire
840 North Broadway
Los Angeles, California 90012

ON BEHALF OF SERVICE:

William S. Howell
Trial Attorney

(Brief filed)

This is an appeal from an order of a special inquiry officer
denying the respondent's motion to reopen the deportation proceedings to allow her to file an application for suspension of
deportation under section 24.41(aX1) of the Immigration and Nationality Act. Oral argument, which is requested, is no longer available

as a matter of right on such an appeal, 8 CFR 3.1(e). Oral
argument will be denied and the appeal will be dismissed.
Respondent is a 51-year-old married female alien, a native and
citizen of the Philippines, who was admitted to the TiTnited States
on July 26, 1965 as a nonimmigrant visitor and remained longer
than permitted. At a hearing before a special inquiry officer on

January 28, 1969, she admitted the factual allegations of the order
to show cause, conceded deportability and applied for voluntary
departure. The special inquiry officer found her deportable and
granted voluntary departure to March 1, 1969. She failed to
depart.
On April 29, 1972, counsel filed a motion to reopen the proceed229

Interim Decision #21'72
ings so that respondent might file an application for suspension of
deportation. Attached to the motion was a filled-out suspension
application. The motion to reopen, which is unsupported by any
affidavit or other evidence, is extremely brief. Its essence is
contained in two short paragraphs:
[III] Respondent is statutorily eligible for suspension of deportation having
first entered the United States in March 1962. It is believed her case falls
squarely within 12 I. & N. Dec. 271.
[IV] Counsel is prepared to present the necessary evidence at the time of
hearing.

The suspension application recites that respondent first entered
the United States as a visitor on March 27, 1962 and was absent
thereafter but once, from December 1964 to the date of her last
entry on July 26, 1965. The Service's trial attorney opposed the
motion on the ground that this absence of almost eight months
broke the continuity of the seven years' physical presence required
by section 244(a)(1) of the Act. The special inquiry officer agreed
and denied the motion in his order dated May 23, 1972, now before
us on appeal.
The issue raised on appeal is now moot. More than seven years
have now elapsed since respondent's last entry on July 26, 1965.
We therefore need not consider whether her preceding absence
broke the continuity of her physical presence following the 1962
entry. Since she can now establish the minimum required period of
physical presence, we would ordinarily reopen and remand if her
motion papers made out a prima facie case for reopening in other
regards. In our view, they do not.
The motion to reopen, as we have noted, is singularly lacking in
factual detail. The suspension application reflects that respondent's husband, whom she married on December 24, 1942, is a selfemployed farmer in the Philippines. Respondent's five children,
ranging in age from 9 to 27, are natives and citizens of the
Philippines and presumably now reside there since their present
residence is not indicated. Neither the husband nor any of the
children is listed as a permanenL resident alien. Respondent also
lists six brothers and sisters, all natives and citizens of the
Philippines, now also presumably residing there. Since December
1966 respondent has been employed as a domestic and now earns
$125 a week. She states she cannot return to her native land
because of "financial hardship."
As we pointed out in Matter of Lam, Interim Decision No. 2136
(B IA, 1972), continuous physical presence for the minimum statutory period is only one of the eligibility requirements for suspension of deportation. There are others, including a showing that the
alien's deportation would result in extreme hardship to the alien

230

Interim Decision #2172
or other specified family members who are citizens or legally
resident aliens. The pertinent regulations' require that a motion
to reopen shall state the new facts to be proved at the reopened
hearing and shall be supported by affidavits or other evidentiary
material.
No hard and fast rule can be laid down as to what constitutes a
sufficient showing of a prima facie case for reopening. Much
depends on the nature of the case and the force of the evidence
already appearing in the record sought to be reopened. Where that
record is negative or contains adverse factors, a mere statement of
conclusory allegations with respect to the statutory' prerequisites

is seldom enough. Where reopening for suspension purposes is
sought, a mere showing that the alien has at last achieved the
minimum statutory period of continuous physical presence does
not ordinarily, without more, establish the other statutory prerequisites sufficiently to warrant reopening for a plenary hearing. On
the other hand, we have on occasion overlooked the technical
inadequacy of a motion to reopen where the new facts alleged,
when coupled with the facts already of record, satisfy us that it
would be worthwhile to develop the issues further at a plenary
hearing on reopening.

On the record now before us, we cannot infer from the mere fact
that respondent can now establish seven years' continuous physical presence that she may also be able to prove the prerequisite
extreme hardship if given a chance at a reopened hearing. From
what already appears, it is clear that all her close relatives are in
the Philippines. Respondent's deportation there, far from causing
extreme hardship by separating her from her family, would serve
to reunite her with them. Insofar as concerns the "financial
hardship" which she asserts in her application, it has been consistently held that mere economic detriment, without more, is not
enough to make out the extreme hardship required by the statute,
Kasravi v. INS, 400 F.2d 675 (CA. 9, 1968); Kwan Shick Myung v.
INS, 368 F.2d 330 (C.A. 7, 1966).
If there are other facts in counsel's possession which would tend
to make out a case of extreme hardship, he has not made them
known. The special inquiry officer cannot be expected to act on
conjecture. Counsel's unsupported and conclusory assertion in the

motion that he "is prepared to present the necessary evidence at
the time of hearing" does not tell us or the special inquiry officer
what evidence he is prepared to present and does not satisfy us
that the additional delay entailed in a reopening would likely be
1 Reopening before the Service is governed by 8 CFR 242.22 and 103.5.
Reopening before the Board is governed by 8 CFR 3.2 and 3.8.

231

Interim Decision #2172
worthwhile. We conclude that the special inquiry officer properly
denied the motion to reopen.
One further aspect of this case should be mentioned. From the
record now before us, it appears that on May 11, 1972, after he had
filed the motion to reopen but before the special inquiry officer had
ruled on it, counsel for respondent filed a petition under section
106(a) of the Immigration and Nationality Act to review the
original deportation order, Sip-us v. INS, 9 Cir., No. 72-1838. On

June 16, 1972, the court entered an order dismissing the petition
for review and dissolving the statutory stay of deportation automatically available under section 106(aX3) of the Act. On June 21,
1972, counsel petitioned the court for rehearing. In his supporting
memorandum, counsel challenged the special inquiry officer's
order now before us on appeal and argued, on the "extreme
hardship" issue, that "[Respondent], at the age of 51 and with no
recent employment history in her native country, would experience extreme difficulty in finding work of any kind if she were
deported to the Philippines." On June 28, 1972 the court denied the
petition for rehearing.
We mention the court proceedings for two reasons: First, in
court, counsel went into considerably more detail in defining the
extreme hardship claim than he did either before the special
inquiry officer or before this Board on appeal. Even with these
additional details, we are satisfied that a prima facie case for
reopening is not made out.
Second, we note that neither in his notice of appeal dated June
3, 1972, nor in his brief on appeal to this Board bearing the same
date, did counsel mention the proceedings for judicial review then
pending. We have previously pointed out how important it is that
we be informed of court litigation brought by a party to a
proceeding before us which might affect our decision in that
proceeding. See Matter of Wong, 13 I. & N. Dec. 258; 8 CFR 3.8(a).
Prior litigation is important because, among other things, the
judgment entered therein may have res judicator effect. It is
equally necessary that we be informed of pending litigation, so

that we may either withhold or shape our decision in such a way
as not to impinge upon the jurisdiction of the court. If counsel
deliberately withheld this information from us, we could only
regard it as a lack of the good faith which we are entitled to expect
from attorneys who appear before us.
We have no reason to believe that either of the Ninth Circuit's
judgments has conclusive effect on the issue now before us. The
petition for review dismissed by the court's order of June 16, 1972
dealt with the original deportation order and not the special
inquiry officer's order now before us. While counsel sought to draw

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Interim Decision #2172
the latter order into the court proceedings in his petition for
rehearing, it is clear that he did not succeed. In denying the
petition for rehearing, the court wrote no opinion. It is fairly
inferable, however, that the court's refusal to entertain respondent's challenge to the special inquiry officer's order was due to
respondent's failure to exhaust her administrative remedy of
appeal to this Board, as required by section 106(c) of the Act. We
see no reason to regard the court's order of June 28, 1972 as an
adjudication on the merits of the issue now before us. Accordingly,
we shall enter an order disposing of the appeal before us on its
merits.

ORDER: The appeal is dismissed.
Warren R. Torrington, Member, Concurring:

I concur in the result, but not in the unnecessary, inaccurate,
and misleading statements which appear in the following paragraph quoted from the Board opinion.
No hard and fast rule can be laid down as to what constitutes a sufficient
showing of a prima facie case for reopening. Much depends on the nature of the
case and the force of the evidence already appearing in the record sought to
reopened. Where that record is negative or contains adverse factors, a mere
statement of conclusory allegations with respect to the statutory prerequisites is
seldom enough. Where reopening for suspension purposes is sought, a mere
showing that the alien has at last achieved the , minimum statutory Period of
continuous physical presence does not ordinarily, without more, establish the
other statutory prerequisites sufficiently to warrant reopening for a plenary
hearing. On the other hand, we have on occasion overlooked the technical
inadequacy of a motion to reopen where the new facts alleged, when coupled
with the facts already of record, satisfy us that it would be worthwhile to
develop the issues further at a plenary hearing on reopening.

They might create the—wrong—impression that we have the
right to ignore the regulations which govern motions to reopen,

and which are cited in footnote 1 of the Board opinion. We have no
such right. The regulations have the force of law; and it is our
duty to enforce them_ Thus, "a mere statement of conclusory
allegations with respect to the statutory prerequisites" for the
relief sought is not "seldom enough;" it is never enough. The
quoted dictum is in sharp conflict with the letter and spirit of the
clear provisions of the pertinent regulations. Section 3.8 of Title 8
of the Code of Federal Regulations expressly provides in subsection (a) as follows: ".... Motions to reopen shall state the new facts
to be proved at the reopened hearing and shall be supported by
affidavits or other evidentiary material...." [Emphasis supplied.]
Almost identical provisions govern motions to reopen directed to
an officer of the Service and, in particular, in deportation proceedings to a special inquiry officer. 8 CFR 103.5 and 8 CFR 242.22.
233

Interim Decision #2172
Similarly, where "reopening for suspension purposes is sought, a
mere showing that the alien has at last achieved the minimum
statutory period of continuous physical presence does not" ever,
"without more, establish the other statutory prerequisites sufficiently to warrant reopening for a plenary hearing." The use of
the word "ordinarily" in the Board opinion appears to me to be
quite misleading.

Finally, the following statement quoted from the Board opinion
is far too broad and general, and is therefore not a correct
exposition of what we can lawfully do: "On the other hand, we
have on occasion overlooked the technical inadequacy of a motion
to reopen where the new facts alleged, when coupled with the facts
already of record, satisfy us that it would be worthwhile to develop
the issues further at a plenary hearing on reopening."
Obviously, a motion to reopen will always be granted where a
failure to reopen the proceedings might result in a gross miscarriage of justice. For example, in a matter involving an alien's
application for withholding of deportation to a country in which he
allegedly would be subject to persecution on account of race,
religion, or political opinion, neither a special inquiry officer nor
this Board would dream of denying a motion to reopen because of

some. "technical inadequacy" (as the Board opinion puts it). That,
however, does not mean that we have the general authority to
"overlook" clear violations of, or non -compliance with, the applicable laws and regulations of the United States.

234


Interim Decision #1947

MATTER OF

Lim

In Deportation Proceedings
A-11422036
Decided by Bowrd March 13, 1969
Respondent, who innocently entered as a nonquots: immigrant without knowledge that her petitioning husband's representation to be a U.S. citizen was
fraudulent, comes within the purview of section 241 (f) of the Immigration
and Nationality Act, as amended, in the light of In re Yuen Lan Hon,
289 F. Supp. 204 (S.D. N.Y., 1968), holding that an innocent falsehood
constitutes a "misrepresentation" within the meaning of the statute. [Matter of Lint, 12 L We N. Dec. 671, superseded.]
CHARGE:

Order: Act of 1962—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)1--Excludable at entry—not nonquota immigrant as specified
in visa—section 211(a) (3).
ON BEHALF or

SERVICE:

Sam I. Feldman
Trial Attorney
(Brief filed)

This case is before us on motion of the Immigration and Naturalization Service to reconsider and withdraw our prior orders
and terminate these proceedings in light of the intervening decision in In re Yuen Lan Horn., 289 F. Supp. 204 (S.D. N.Y., 1968).
The motion will be granted and the proceedings terminated.
The facts and pertinent legal principles were discussed in our
prior orders, now reported in Matter of Lint, 12 I. & N. Dec. 671,
and need not be repeated at length. The question is whether the
respondent, who innocently achieved nonquota status on her husband's fradulent representation that he was a United States citizen, is saved from deportation by section 241(f) of the Immigration and Nationality Act. In our prior decisions, we concluded
that, anomalous as it might seem, the bounty of section 241(f)
extended only to those guilty of fraud, and not to the innocent.
In the Ham case, supra, the same issue was presented in a naturalization setting. The district court emphatically rejected our

169

Interim Decision #1947
reading of the statute and concluded that section 241 (f) applies
to such a situation. The court held that a liberal construction was
warranted by the underlying congressional intent to unite families ; and that, in any event, an innocent falsehood literally consti-

tutes a "misrepresentation" within the meaning of the statute.
The Government did not appeal.

The fact that a lower federal court has rejected a legal conclusion of this Board does not of itself require us to recede from
that conclusion. The Service's jurisdiction is nationwide and we
hear appeals from Service decisions in all parts of the country.
The contrary ruling of a reviewing court in one district is not
necessarily dispositive of the issue; a conflicting view may be expressed by a court in another jurisdiction. See, e.g., Errieo v.
INS, 349 F2d 541 (9 Cir., 1965) and Scott v. INS, 350 F.2d 894
(2 Cir., 1965) .
Similarly, the Government's failure to appeal from a lower
court's adverse decision does not of itself indicate acquiescence.
The determination not to appeal may be based on other considerations, such as the inadequacy of the record as a vehicle for appeal
or factors outside the record which render an appeal undesirable.
In the Horn case, however, it is clear from the Department's
file that the decision not to appeal was based on the conclusion
that the district court's reading of the statute is correct. We will,
therefore, recede from the position we had heretofore taken in
the instant case. Accordingly, we will grant the Service's motion,
withdraw our prior orders, and sustain the order of the special
inquiry officer terminating the proceedings.
ORDER: It is ordered that the prior orders of the Board dated
March 7, 1968 and December 13, 1967, respectively, and published
as Interim Decision No. 1847 (now 12 I. & N. Dec. 671), be and
they are hereby withdrawn.
It is further ordered that the decision of the special inquiry 'officer dated September 27, 1967, terminating the proceedings, be
and it is hereby sustained.

170


MAFFER OF P—

In VISA PETITION Proceedings
A-12472655
Decided by Board June 21, 1962
Nonquota status—Orphans—Limitation of two to a family.

provision of section 205(c) limiting to two the number of petitions which
may be approved for one petitioner in behalf of a child as defined in section
101(b) (1) (E) or (F) does not include those children issued special nonquota visas without a petition under betaluu 4 of the Act of Septcmbor 11,
(Overrules
1957, prior to its amendment by the Act of September 9, 1959.
Matter of M—, 9-542.
BEFORE- THE BOARD

DISCUSSION: The petition herein was denied on April 17, 1962.
The case came forward to the Board for review and final decision
pursuant to certification by the Officer in Charge, Tokyo, Japan.
Appeal by the petitioner was received subsequently.
The petitioner is a native-born United States citizen. He is serving in the United States Armed Forces in Japan. He filed this
petition pursuant to section 205 (b) of the Immigration and Nationality Act, as amended, requesting approval for nonquota immigrant
visa status in behalf of the beneficiary, an adopted alien son, under section 101(a) (27) (A) of the Immigration and Nationality Act.
The petitioner states that the beneficiary was born August 15, 1959,
at Yokohama, Japan; and that the adoptive parents have had legal
custody of such child during a period of two years after adoption,
all of which time the child has resided with them. A court document showing the adoption is attached to the petition. The beneficiary is now in Tokyo, Japan, with the petitioner and his spouse.
The family will come to the United States soon and reside in the

State of Connecticut.
The issue presented is whether the petitioner is precluded, as a
matter of law and precedent, from haying this petition approved
for nonquota immigrant visa status under section 101 (a) (27) (A)
of the Immigration and Nationality Act in behalf of the beneficiary,
his adopted child (section 101(b) (1) (E) of the Immigration and
Nationality Act, as amended), in view of the factual situation to
be noted and the provisions of current law.
750

The evidence herein in our opinion shows [here has been a valid
adoption of the beneficiary. The petition has been denied on evidence of record showing that nonquota immigration visas were
issued previously (on applications by this petitioner) for two alien
children that were "eligible orphans" adopted by the petitioner and
his spouse. The visas were issued on May 29, 1959, pursuant to section 4(a) and (b) of the Act of September 11, 1957 (Public Law
p5 316). 1 The orphan children are still in. Japan. The Officer in
Charge has decided that the provisions of the immigration laws,
specifically section 205(c) of the Immigration and Nationality Act
as amended on September 26, 1961 (Public Law 87-301), limit the
number of nonquota visas that may be issued and/or the number of
visa petitions that may be approved for one petitioner in behalf of
a "child" as the term is defined in section 101(b)(1)(E) and (F)
of the Immigration and Nationality Act to two, and has denied the
petition on that basis. 2
-

1 This petitioner obtained two special nonquota visas on May 29, 1959. At
that time the term "eligible orphan" was defined in section 4(b) of the Act
of September 11, 1957, and the procedure to obtain a special nonquota visa
was set forth in section 4(a) of the Act. Under that statute an orphan
adopted by an American citizen automatically became entitled to a special
nonquota visa on application of the citizen petitioner to the United States
consular service. (Note 3.1 Montgomery v. Pireach, 299 F.2d 730 (C.C.A. 8,
1362)) Section 4(a) (repealed by section 24(a) of the Act of September 26,
1961) reads as follows:
On or before June 30, 1959, spacial nonquota immigrant visas may be issued
to eligible orphans as defined in this section who are under fourteen years of
age at the time the visa is issued. Not more than two such special nonquota
immigrant visas may be issued to eligible orphans adopted or to be adopted
by any one United States citizen and spouse, unless necessary to prevent the
separation of brothers and sisters.
2 The pertinent statute defining "adopted child" and a "child who is an eligible orphan" is section 101(b) (1; (E) and (F) of the Immigration and Nationality Act, as amended by section 2 of the Act of September 11, 1957
(Public Law 85-4116) ; also, as further amended by section 2 of the Act of
September 26, 1961 (Public Law 87-301). Category "E" was added to section
101(b) (1) for the first time in 1957. Category "F" was added by the amendment on September 26, 1961. The statute, as amended, provides :
(b) As used in titles I and II—
(1) The term "child" means an unmarried person under twenty-one years
of age who is•
•
(l) a child adopted while under the age of fourteen 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: • • •
(F) a child who is an eligible orphan. adopted abroad by a United States
citizen and spouse or coming to the United States for adoption by a United
States citizen and spouse: • • •
The term "parent" is defined in subsection (2) as follows :
(2) The terms "parent'.', "fathet", or "mother" mean a parent, father, or
wetter only where the relationship exists by reason of any of the circumstances set forth in (1) above.

751

This petition, filed March 7, 1962, is to be adjudicated under current law, that is, the Immigration and Nationality Act as amended
on September 26, 1961. The procedure for obtaining nonquota or
preference quota status in behalf of an alien is outlined in section
205(b) of the Immigration and Nationality Act, as amended, which
currently provides in part as follows:
(b) Any citizen of the United States claiming that any immigrant is his
• * • child and that such immigrant is entitled to a nonquota immigrant
status under section 101(a) (27) (A), • • • may file a petition with the Attorney General. • • •

This petitioner has not heretofore filed a visa petition under section
205(b) in behalf of a "child adopted" as the term is defined in section 101(b) (1) (E) of the Immigration and Nationality Act,. Nor
.1„s he filed a visa petition in behalf of an eligible orphan child as
defined in section 101(b) (1) (F) and section 101(b) (6) of the Act.
The question we must decide is whether this petition may be approved when two nonquota visas have already been issued for orphan children on req sect of the petitioner on May 29, 1959. We
emphasize the fact that nonquota visas for those children were obtained without approved visa petitions filed pursuant to section
205(b) of the Immigration and Nationality Act, as amended. The
question is narrowed to a determination whether those children are
to be included in the limitation in section '205(c) of the Immigration and Nationality Act, as amended by section
\'`b) of the Act of
September 26, 1961 (Public Law 87-301), to forbid the approval of
the instant petition. Section 205(c) currently reads:
* * * Not more than two such petitions may be approved for one petitioner in
behalf of a child as defined in section 101(b) (1) (E) or (F), unless necessary
to prevent the separation of brothers and sisters. • * *

At the outset it is important to note that the provisions of section
205(c), Immigration and Nationality Act, quoted in the preceding
paragraph, with respect to a child who is an eligible orphan as
defined in section 101(b) (1) (F), relate to visa petition procedure
under section 205(b) and is new legislation. As such, we do not
believe the limitation therein was intended to revert hack and inelude eligible orphan ehildien'to whom special nonquota visas were
issued under special legislation, now repealed, under which a visa
petition was not required. It is our opinion that Congress intended,
through visa petition procedure, to establish safeguards for alien

orphan children in each case before a child could be brought to the
United States; and that only those children who are beneficiaries
of visa petitions come within the limitation allowing only two orphans to each petitioner. The language in section 205(c), therefore,
should be literally construed so that the benefits intended under the
752

new legislation will result.' This interpretation of the wording in
section 205(c) is drawn from the fact that the emphasis is clearly
on the number of visa petitions that may be approved for one citizen in behalf of a child in category "F" of section 101(b) (1), and
not on the number of nonquota visas that have been issued to eligible orphans where no visa petitions were filed and approved.*
We, therefore, construe the context of section 205(c) of the Immigration and Nationality Act to mean simply that a limitation of
two is placed on the number of visa petitions that may be approved
by the Attorney General for one petitioner in behalf of a child

adopted, or an eligible orphan child, as those terms are defined in
section 101(b) (1) (E) and (F) of the Act. We find that Congress
has, in current legislation, provided a visa petition procedure for
eligible orphan children by reason of relationship; and that only
orphan children who are the beneficiaries of visa petitions come
within the provisions of section 205(c) to limit two orphan children
to each petitioner. Any other interpretation or construction of the
language in the statute, it semis to us, would he leading meaning

into it that is not there. In this connection we have not overlooked
the distinction between the procedure under the 1957 Act to obtain
nonquota status for an eligible orphan and the procedure requiring
approval of a visa petition in every case. The definition of the
term "eligible orphan" was added to section 101(b), contemporaneously with the amendment to section 205(c) on September 26, 1961
(Public Law 87-301) . That definition states that an "eligible or3 In Matter of M—, 9-542, the Assistant Commissioner, Immigration and
Naturalization Service, denied a visa petition in behalf of an eligible orphan
child, presented for approval under current law by interpreting the provisions
of section 205(c) to be a continuance of the limitations in prior legislation
relating to eligible orphan children and to forbid a citizen to obtain nonquota
status for more than two orphans. M—, the petitioner, had obtained nonquota
visas for two orphans previously, one under the Itefugee Act of 1953, and one
under section 4 of the Act of September 11, 1957. Petition for nonquota status
for a third child was denied. However, the decisions of the Immigration and
Naturalization Service as precedents are not binding on the Board.
4 Section 4 of the Act of September 11, 1957, was amended September 9,
1959 (Public Law 86-253) to require a petition for an orphan child. Under
the rule of the instant case, two such approved petitions would, of course,
preclude any further petition under section 205(c), as amended by section
3 (b) of the Act of September 26, 1961 (Public Law 87-301).
5 Section 101(b) (6) reads as follows:
(6) The term "eligible orphan" means any alien child under the age of
fourteen at the time at which the visa petition is filed pursuant to section
MVO) wno is an orphan oecause or toe death or disappearance of both parents, or because of abandonment, or desertion by, or separation or loss from,
both parents, or who has only one parent due to the death or disappearance
of, abandonment, or desertion by, or separation or loss from the other parent,
and the remaining parent is incapable or providing care for such orphan and
has in writing irrevocably released him for emigration and adoption.
753
6254377—RS

phan" means any alien child who is under the age of 11 years at
the time at which the visa petition is filed pursuant to section
205 (b) who is an orphan. The distinction is that an eligible orphan child under current law does not mean a child who has been
issued a nonquota visa.
Construing the pertinent current legislation as we do, and applying fair humanitarian standards in the administrative adjudication

of the issue so that the family unit will not be dissolved, we see no
reason to preclude the approval of this petition.
.ORDER: It is ordered that the petition be approved for nonquota
visa status.

754


Interim Decision #2618

MATTER OF BOURNE

In Visa Petition Proceedings
A-22149716
Decided by Board October 12, 1977
(1) In order to support the claimed "brother/sister" relationship under section 203(a)(5) of
the Immigration and Nationality Act, the petitioner has to establish that both she and
the beneficiary once qualified as "children" of a corrunon "parent" within the meaning of
"
sections 101(b)(1) and (2) of the Act.
(2) Under the case law interpretation of section 101(b)(1)(B) of the Act, the legitimation of
the beneficiary and petitioner by their natural father is not required in order for-the
beneficiary to obtain immigration benefits.
(3) Through the operation of section 101(b)(1)(B) of the Act, the beneficiary and the
petitioner may qualify as children of a common stepmother within the meaning of
sections 101(b)(I) and (2) of the Act, and therefore, they may be regarded as sister and
brother for the purposes of section 203(a)(5) of the Act.
(4) The petitioner must meet her burden of proving the claimed stepchild-stepparent
relationship within the meaning of section 101(b)(1)(B) of the Act by showing the
existence of a close family unit.
ON BEHALF OF P

ONER:

Franklin S. Abrams, Esquire
Abrams and Abrams
One Penn Plaza
New York, New York 10001

BY: Hilhollan, Chairman; Wilson, Maniatis, Applernan, and Maguire, Board Members

The United States citizen petitioner applied for preference classification for the beneficiary as her brother under section 203(a)(5) of the
Immigration and Nationality Act. In a decision dated March 17, 1977,
the District Director denied that petition. The petitioner has appealed
from that denial. The record will be remanded.

The petitioner is a 44-year-old female who is a native of Barbados and
a naturalized citizen of the United States. The beneficiary is a 46-yearold married male alien who is a native and citizen of Barbados.
The District Director predicated his denial of the visa petition upon a
finding that the beneficiary and the petitioner were illegitimate at birth
and that the record fails to show that they were legitimated by the
marriage of their respective natural parents.
On appeal, counsel for the respondent submits that the beneficiary
367

Interim Decision #2618
and the petitioner have a common natural father and a common stepmother; that they have lived as a family unit; and that, therefore, they
should be considered as brother and sister.
The facts of this case reveal that the petitioner and the beneficiary
were born out of wedlock; that the petitioner and the beneficiary have a
common natural father; and that the petitioner and the beneficiary do
not have the same natural mother. The record also indicates that the
beneficiary and the petitioner were reared by their natural father and
his wife; and that their father's wife is not the natural mother of either
the beneficiary or the petitioner.
In visa petition cases, the petitioner bears the burden to establish
eligibility. Matter of Brantigan, 11 I. & N. Dec. 493, 495 (MA 1966). In
order to support the claimed "brother/sister" relationship under section
203(a)(5) of the Immigration and Nationality Act, the petitioner has to
establish that both she and the beneficiary once qualified as "children" of
a common "parent" within the meaning of sections 101(b)(1) and (2) of
the Act. Matter of Gur, Interim Decision 2560 (BIA 1977); Matter of
Rehman, Interim Decision 2450 (BIA 1975); Matter of Garner, Interim
Decision 2367 (BIA. 1076); Matter of Hueng, Interim Decision 2334 (BIA

1974).
In this case, the petitioner is not claiming immigration benefits for the
beneficiary through a relationship to their natural father. It is clear that
the petitioner is seeking to confer preference status on the beneficiary
by virtue of their relationship to a common stepmother. Under the case
law interpretation of section 101(b)(1)(B) 1 of the Act, the legitimation of
the beneficiary and the petitioner by their natural father is not required
in order for the beneficiary to obtain immigration benefits. See generally
Matter of Stoltz, Interim Decision 2401 (BIA 1974, 1975; A.G. 1975);
Matter of Harris, Interim Decision 2208 (BIA 1970); Matter of Amado

and Manteiro, 13 I. & N. Dec. 179 (BIA 1969).
In Matter of Hueng, supra, we held that through the operation of

section 101(b)(1)(B) of the Act, the child (beneficiary) of a person who
married the petitioner's mother became the stepchild of the petitioner's
another by virtue of that marriage. We further held in that case that the
petitioner and the beneficiary were children of a common parent within
the meaning of section 101(b)(1) and (2) of the Act, and that, therefore,

they may be regarded as brother and sister for purposes of section
2()3(a)(5). See also Matter of Gur, supra.
"Upon review of the evidence in support of the visa petition in this
c ase, we find that the petitioner has failed to show the existence of a
Under section 101(b)(1)(B) of the Act, the term "child" means an unmarried person
Irlider 21 years of age who is a stepchild, whether or not born out of wedlock, provided the
child has not reached the age of 18 years at that time the marriage creating the status of
stepchild occurred.
368

Interim Decision #2618
close family unit between the petitioner, the petitioner's father, the wife
of the petitioner's father, and the beneficiary. Matter of Stultz, supra;
Matter of Harris, supra; Matter of Amado and Monteiro, supra. Hence,
she has not met her burden of proving the claimed stepchild-stepparent
relationship within the meaning of section 101(b)(1)(B) of the Act.
In view of the circumstances of this case, we may accept secondary
evidence to establish the existence of a close family unit. The petitioner
may be able to obtain sworn statements from persons who were dose to
the petitioner and her family in Barbados and who were in a position to
have personal knowledge of the petitioner's family life and her relationship to the beneficiary, her stepmother, and her natural father.
Accordingly, we shall remand the record of these proceedings to the
District Director, in order to afford the petitioner an opportunity to
submit additional affidavits and documeiits in support of her visa petition. Before returning the record to the Board, the District Director
should enter a new decision, stating his reasons, and make appropriate
service on the interested parties in accordance with Matter of To, 14 I..
& N. Dec. 679 (BIA 1974); Matter of Li Gcmoza, Interim Decision 2475
,

(DIA 1976).

ORDER: The record is remanded to the District Director for further
action in accordance with the above opinion and for entry of a new
decision.

369


Interim Decision 112792

MATTER OF MOREIRA

In Visa Petition Proceedings
A-22211458

Decided by Board Nay 6, 1980
(1) In order to establish a steprelationship under the Immigration and Nationality Act,
there must be a showing that the stepparent has, prior to the stepchild's eighteenth
birthday, evinced an active parental concern for the stepchild's support, instruction,
and general welfare. Matter of Mareira, Interim Decision 2720 (BIA 1979).
(2) Where the marriage creating a technical steprelationship takes place shortly before
a stepchild's eighteenth birthday, inquiry may properly be made into what occurred

between the stepparent and stepchild before the marriage, or after the child reached
the age of 18, in order to determine if the standards set forth in Matter of Moreira, id.,
have been met.
(8) Although a simple wan-lame ceremony will not be itself create genuine familial

bonds between ateprelatives, where such bonds can be shown, Matter of Moreira, id.,

should be broadly construed in order to give effect to the goal of encouraging and
preserving bonafide family relationships.
(4) Where petitioner, wife of the beneficiary's natural father, knew of the beneficiary's
existence from the time she first met her husband, a year before they were married,
where she and her husband have sent money to the beneficiary from their shared
income, and where the petitioner has always been willing to accept the beneficiary,
take responsibility for him, and consider him as her own child, the petitioner's
parental interest in the beneficiary was sufficiently active and timely to warrant
granting the visa petition, despite the fact that the marriage creating the steprelationship occurred only 4 months before the beneficiary's eighteenth birthday.
(5) It is not a denial of equal protection to have different rules of law in different judicial
districts. Castillo-Felix v. INS, 601 F.2d 459 (9 Cir. 1979).
(6) In the Board of Immigration Appeals' prior decision in Matter of Moreira, supra, the
decision in Andrade v. Esperdp, 270 F.Sunp. 5146 (S.D1sT.Y.1967), was not rejected, but
rather was interpreted to mean that some evidence of genuine familial bonds was
required in order to establish a steprelationship for immigration purposes, even
though a "close family unit" need not be shown.
(7) The standards in Matter of Moreira, supra, apply nationwide, including in the
Southern District in New York.
ON BEHALF OF SERVICE:

ON BEHALF OF PETITIONER:,

Jim Torn Haynes
Appellate Trial
Attorney

James J. Orlow, Esquire
Public Ledger Building, Suite 936
Sixth & Chestnut Streets
Philadelphia, Pennsylvania 19106
370

Interim Decision #2792
BY:

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

This is the second time this case has been before us. In a prior
decision, dated July 16, 1979, we remanded the record to the District

Director to give the petitioner an opportunity to show that the beneficiary qualified as her "stepchild" under the Immigration and Nationality A et, as that term was defined in our prior decision, which was
designated as a precedent. Matter of Moreira, Interim Decision 2720
(BIA 1979). The District Director, in a decision dated October 30, 1979,
determined that the beneficiary did not qualify as the petitioner's
stepchild as we had interpreted that term. In accordance with our
previous order, the District Director then certified his decision back to
this Board for review. Oral argument was heard before this Board on
February 21, 1980. The decision of the District Director is reversed.
The petitioner in this case is a 52-year-old native of Argentina and
citizen of the United States. The beneficiary is a 25-year-old native and
citizen of Argentina who was born out of wedlock to the petitioner's
husband and a woman he never married. The petitioner married the
beneficiary's father in 1972, when the beneficiary was 17 years old.
Thus, a purely technical steprelationship came into existence prior to
the beneficiary's eighteenth birthday. However, in our prior precedent

decision in this case, we held that more than a merely technical
relationship was required in order to establish a steprelationship
under the Act. After a careful review of the legislative history of the
stepchild provision, as well as of the case law, both from this Board and
from the courts, we held that a steprelationship exists for immigration
purposes where the stepparent has, prior to the child's eighteenth
birthday, evinced an active concern for the stepchild's support, instruction, and general welfare. While such an interest can be demonstrated by taking the child into the home and caring for him as a
parent, it can also be shown, we held, by a stepparent's continuing and

genuine interest in the well-being of a stepchild who may, due to
distance, immigration restrictions, or national boundaries, be unable
to actually live with the stepparent. Matter of Moreira, id.
The petitioner in the present case has submitted an affidavit which

indicates that she knew of and accepted the existence of the beneficiary
from the time she first met her husband, approximately one year
before they were married. She states that because the beneficiary had
always been a great concern of her husband's, he became a concern of
her's also, and that she and her husband sent money to the beneficiary
from their shared income. The petitioner states that she knew that

when she married her husband, the beneficiary and the beneficiary's
sister would become her children "as fully and completely as if they
371

Interim Decision #2792

were mine by blood...." She acknowledges twice in the affidavit that
she has am "obligation" to the beneficiary.
The special problem presented by this case lies in the fact that the
petitioner's marriage to the beneficiary's father occurred only 4
months before the beneficiary reached his eighteenth birthday. The
Immigration and Naturalization Service argues, and counsel for the
petitioner has all but conceded, that the requirements of our precedent
decision could not have been, and were not, met in those 4 months. We
believe that the interpretation given to our decision by both counsel
and by the Service is too narrow. What we sought in our prior decision
was to encourage and preserve relationships where genuine familial
bonds existed, but also to recognize the fact that a simple marriage
ceremony not in every case serve to create such genuine bonds
between persons who have come steprelatives. Our decision in
Moreira, id., should be broadly construed where, as here, a bona fide
family relationship has been shown.
The fact that the marriag6 creating a relationship occurs shortly
before a stepchild's eighteenth birthday should not be fatal to a finding
that the Moreira standards have been satisfied. Each case must be
decided on its own facts. If, as in the present case, there is very little
time between the marriage and the birthday, it is not improper to
inquire into what occurred between the stepchild and stepparent
before the marriage, or to inquire into what occurred after the child
reached th.e age of 18. In both Nation v. Esperdy, 239 F.Supp. 531
(S.D.N.Y. 1965) and Andrade v. Esperdy, 270 F.Supp 516 (S.D.N.Y.
1967), for example, the Court emphasized that the stepmothers evinced
an active parental interest in their future stepchildren even before
they married the children's fathers. In the present ease, the record
indicates that the petitioner showed concern for the beneficiary prior
to her marriage to the beneficiary's father, and it is quite clear that
this interest continued, even grew, up until the beneficiary reached his
eighteenth birthday, and beyond. As we do not consider our inquiry
into the relationship to be strictly limited to the time between the
marriage a.nd the time of the child's eighteenth birthday, we are able
to find that the requirements set forth for a steprelationship have been
satisfied in this case. We are convinced that the timely parental
interest the petitioner showed in the beneficiary was "active" in the
particular circumstances of this case.
We do not by our decision today write out Moreira's requirement
that the bona fide steprelationship be established prior to the
stepchild's eighteenth birthday. It would not be sufficient, for example,
if the marriage creating the relationship occurred prior to the child's
eighteenth birthday, but the stepparent either did not know of, or
accept a genuine and continuing parental interest in, the child in any
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way before the child turned 18, even if afterwards great concern for the
child was shown. We emphasize that each case must be decided on its
own facts, and the key question must always be whether a bona fide
parent-child relationship exists.
In his brief on appeal, and at oral argument, counsel strongly
objected to the criteria set forth in Matter of Moreira, supra, and
argued that the proper standard should be that set forth in Andrade,
supra. He argues that to apply Andrade only in the Southern District

of New York is a denial of equal protection to persons who live outside
that judicial district. In the first place, it is not a denial of equal
protection to have differing rules in different judicial districts. See
Castillo-Felix v. INS, 601 F.2d 459 (9 Cir. 1979). More important, in our
decision in Moreira, supra., we did not reject Andrade, supra, but
rather we interpreted that decision to mean that while a "close family
unit" need not be shown in order to establish a steprelationship for
immigration purposes, some evidence of genuine family bonds did need
to be shown. We expect our decision in Moreira to be applied
nation-wide, including in the Southern District of New York.
As we find that the petitioner in this case has sufficiently exhibited

the requisite parental concern for the support, instruction and welfare
of the beneficiary, we will reverse the District Director's decision, and
grant the visa petition.
ORDER The decision of the District Director is reversed, and the
visa petition is approved.

373