Interim Decision #2809

MASTER OF CAMILLERI

In Exclusion Proceedings
A-22713513
Decided by Board July SO, 1980
A Canadian citizen truck driver employee (owner-operator) of a United States firm
seeking to deliver goods manufactured in Canada to a terminal in the United States
and to pick up goods to be delivered to points in Canada is admissible to the United
States as a nonimmigrant visitor for business under section 101(a)(15)(B) of the Act.
Matter of Hire, 11 LW Dec. 824 (BIA 1965, 1966; A.G. 1966), distinguished.
EXCLUDABLE:
Orden Act of 1952 — Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant—no visa
ON BEHALF OF APPLICANT:

ON BEHALF OF SERVICE:
Jim Tnm Haynes, Esquire
Appellate Trial Attorney

Robert E. McFarland, Require

999 W. Big Beaver Road, Suite 1002
Troy, Michigan 48084
By:

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

This is an appeal from a December 4, 1979, decision of an immigration judge ordering that the applicant be excluded and deported. The
appeal will be sustained and the applicant will be admitted to the
United States as a nonimmigrant visitor for business.
The applicant is a 38-year-old married male alien, a native of Malta,
and a naturalized citizen of Canada. He sought entry into the United
States at Detroit, Michigan, on October 18, 1979, as a nonimmigrant
visitor for business. The applicant is employed as a truck driver by
Diamond Transportation System, Inc. (hereinafter referred to as
Diamond). Diamond is a United States corporation with its headquarters in Racine, Wisconsin. Its business is that of an irregular route'
motor carrier licensed to operate in the 48 states of the continental
United States and all provinces of the country of Canada.
Diamond employs 235 owner-operators who are residents of the
United States, and 12 Canadian owner-operators who reside in
Irregular route denotes that Diamond's authority to transport goods is not limited to
specified roadways.

441

Interim Decision #2809
Ontario. The Canadian owner-operators are not permitted to pick up
loads in the United States for delivery to another point in the United
States. They are only permitted to deliver loads across the international boundary or from point to point in Canada.
The applicant is a so called owner operator for Diamond. As such he
-

leases his 1977 model tractor, under a permanent lease agreement, to
Diamond, and under the authority possessed by Diamond, the applicant drives the tractor pulling Diamond trailers normally transporting agricultural and construction equipment between Canada and the
United States and the United States and Canada. The applicant is paid
64% of the gross Diamond receives for each load he hauls. He is paid in
the United States in American dollars.
The applicant's home is in Brantford, Canada, which is approximately 170 miles east of Windsor, Ontario, a port of entry on the
United States-Canadian border. The applicant maintains no other
residence. He leaves for work from that address and returns to that
address. That is where he parks his tractor when it is not in use. Major
maintenance on the tractor is performed in Ontario and minor maintenance is performed by the applicant.
In pursuit of his employment, the applicant will normally depart
from his home, pick up a load of agricultural or construction
machinery at either Hamilton, Brantfort, Long Branch, or Toronto,

Ontario. The facilities of major manufacturers of these commodities,
including Massey-Ferguson, White Farm Equipment, and International Harvester Company, are located in those cities. The applicant
then normally delivers his load of equipment to the Detroit agency
terminal of Diamond.
The applicant drops his load at the Diamond facility, which involves
putting the trailer into a line up of incoming loads, unhooking the
trailer, putting a dolly under the trailer, and pulling away from it. The
applicant then hooks up to another load, chains it down, and delivers
that load to a destination in Canada. It normally takes the applicant
approximately two hours to unload, pick up the next load, and chain or
secure it. The applicant never picks up a load in the United States and
delivers it in the United States. The Diamond terminal near Detroit is
located some 10 miles from the United States-Canadian border. In
delivering loads to Canada, the applicant may travel to points as
distant as 1400 miles from the United States-Canadian border.
The immigration judge found that the applicant is engaged in international trade which is contracted for by Diamond with companies
in the United States and in Canada. He also found that the respondent
resides in Canada, has no intention of abandoning his residence in
Canada, or of remaining in the United States, and that his entries are
of a temporary nature. The immigration judge found that the sole
-

442

Interim Decision #2809
issue presented in this case is whether the applicant is a bona fide
nonimmigrant visitor for business.
The immigration judge observed that previous precedent decisions
by the Board are difficult to reconcile. Some of them were cited both by
the Service and the applicant for opposite propositions. The immigration judge based his decision on considerations set forth in Matter of
Hird, 11 I&N Dee. 824 (BIA 1965,1966; A.G. 1966). There we reiterated
from Matter of G—P—, 4 I&N Dec. 217 (C.O. 1950), the following
significant considerations:
1) There is a clear intent on the part of the alien applicant to continue the foreign
residence and not abandon his existing domicile.
2) The principal place of business and the actual place of eventual accrual of profits, at
least predominantly, remains in the foreign country.
3) While the business activity itself need not be temporary, and indeed may be long
continued, the various entries into the United States made in the course thereof
most be individually or separately of a plainly temporary nature in keeping with
the existence of the two preceding considerations.

The immigration judge found that the applicant failed to meet the

second test. He noted that the applicant was employed by a United
States concern, that its primary business was conducted in the United
States, that the profit accrued in the United States, and that the
applicant's share of that profit was dispersed to him in the United
States in American dollars.
On appeal, the applicant contends that he is a bona fide nonimmigrant visitor for business under previous Service policy and our own
precedent decisions. He contends that as he is an owner-operator
employee of a common carrier, the second consideration of the test is
not critical as to him. We agree?

We believe that the second contention set forth in Matter of Hira,
supra, is not applicable to employees of common carriers who are
engaged in international trade or commerce. Neither the immigration
judge nor the Service has directed our attention to any case in which a
truck driver engaged in international trade has been denied admission
to the United States as a nonimmigrant visitor for business. On the
contrary, Matter of G P , supra, indicates that such persons were
routinely admitted into the United States for the purpose of loading or
unloading commodities in this country as early as 1937. See also Matter
of Cote, Interim Decision 2783 (BIA 1980); Matter of W—, 6 I&N Dec.
832 (BIA 1955); Matter of R—, 3 I&N Dec. 750 (BIA 1949).
Further, the applicant's employer has shown that the fact that it
employs both United States and Canadian drivers has aided it in
—

—

The applicant has made numerous contentions. However, as we find him to be
admissible to the United States, we will address only those of his contentions which are
necessary to our decision.

Interim Decision #2809
getting governmental approval for its operations in both the provinces
of Canada and from the Interstate Commerce Commission. Matter of
Hira, supra, does not preclude this type of arrangement. The second
consideration of Him is intended to insure that only applicants engaged in international business—as opposed to local employment—are
admitted to the United States as nonimmigrant visitors for business.
Two cases decided before Hira but after Matter of G—P—, illustrate
the distinction. Compare Matter of G—, 6 I&N Dec. 255 (BIA 1954)
(facts would appear to meet the considerations of Matter of Hira,
supra, but applicant excluded on ground that the applicant was employed in the United States at a fixed and permanent place) with
Matter of W—, supra (Canadian employee of United States firm admitted to deliver fish from Canada to his United States employer in
Detroit).3 There is no question as to the international character of the
business in which the applicant is engaged. His business is the transportation of machinery, etc., across the international boundary.
We find that the applicant is engaged in "business" within the
meaning of section 101(a)(15)(B) of the Act because the function he
performs is a necessary incident to international trade. The transportation of commodities across the international boundary is an
essential element of international trade_ Although his trips are frequent, each is temporary for a business purpose, and after each, the

applicant intends to return to Canada.
Accordingly, the applicant is admissible as a nonimmigrant visitor
for business.
ORDERS The appeal is sustained, and the applicant is admitted to
the United States.

s The fact that the Canadian citizen was paid in Canadian funds is considered to be of
minimal significance.
444


Interim Decision #2319

MATTER OF QUIJENCIO
In Deportation Proceedings
A-17862478
Decided by Board September 26, 1974
Respondent claimed lawful permanent resident status under 8 CFR 4.2(j), promulgated in
19 Fed. Reg. 8055 (December 8, 1954) effective January 3, 1955, (now 8 CFR 101.1(i), as
an alien who was admitted to Guam prior to December 24, 1952. Even if respondent had
attained such status he lost it by operation of law. Respondent could only qualify as a
"returning resident immigrant" under section 101(a)(20) of the Immigration and Nationality Act if such status had not changed. Respondent's absence from the United
States for 12 years between 1956 and 1968 effected such a change of status.
CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(20)]--Nonimmigrant.
-remainedlonger than permitted.
ON BEHALF Or RESPONDENT:

Robert 0. Wells, Jr., Esquire
2801 Seattle First National Bank Building
Seattle, Washington 98154

In a decision dated March 13, 1969, the immigration judge found the
respondent deportable as charged and ordered his deportation to the
Republic of the Philippines. No appeal was taken from that decision.
Thereafter, the respondent moved that the proceedings be reopened

in order to allow him to show that he had obtained lawful permanent
resident status under 8 CFR 4.2(j), promulgated in 19 Fed. Reg. 8055
(December 8, 1954), effective January 3, 1955 (now 8 CFR 101.1(0). At
the reopened hearing, the immigration judge found that the respondent
was entitled to a presumption of admission for permanent residence
under 8 CFR 4.2(j), but he concluded that the respondent had lost such
status by operation of law. He granted the respondent the privilege of
departing voluntarily from the United States within 31 days in lieu of
deportation. The respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of the Philippines. The record
shows that he entered Guam in May 1950 to work for the Air Force as a
civilian employee. His original employment was as a laborer, but after
six months he was promoted to the position of warehouseman. Thereaf95

Interim Decision #2319
ter, he attended school and was further promoted to the position of
clerk-typist.
The respondent held the position of clerk-typist until 1956 when he
lost his job due to a reduction in force. After unsuccessfully searching
for employment at other air bases, the respondent was transported back
to the Philippines at the expense of the United States Government.
The respondent resided in the Philippines from 1956 until the end of
1968. He worked at various jobs, married a native and citizen of the
Philippines, ard had three children. The respondent did not return to
the United States until December 1968, at which time he entered as a
nonimmigrant visitor authorized to remain until February 4, 1969.
The respondent's wife and children continue to reside in the Philippines, as do his mother and his three sisters. The respondent's only close
relative in the United States is a brother who is a naturalized citizen.
The responder t has no other ties to the United States.
8 CFR 4.2(j) provided for a presumption of lawful admission for
permanent residence for:
An alien who establishes that he was admitted to Guam prior to December 24, 1952,
by records, such as Service records subsequent to June 15, 1952, records of the
Guamanian immigration Service, records of the Navy or Air Force, or records of
contractors of those agencies, other than as a contract laborer, was not otherwise
excludable under the act of February 5, 1917, as amended, and who continued to reside
in Guam until December 24, 1952, regardless of the period of time for which admitted.

The immigration judge concluded that under the tests set forth by us
in Matter of C—Y—L—, 8 I. & N. Dec. 371 (BIA 1959), the respondent's status as a clerk-typist included certain mental demands which
would exclude him from the contract labor category of section 3 of the
Act of February 5, 1917. The accuracy of this conclusion is questionable,
since the respondent was recruited by the Air Force as a civilian
laborer, worked as a laborer for the first six months after his arrival,

received promotion to a warehouseman only after a "survey" was conducted, and did not assume his duties as a clerk-typist until considerably
after his original admission.
The determination as to whether the respondent entered Guam as a
contract laborer depends on the precise nature and purpose of his

original employment, matters which were not developed in'the record.
Without more information, we cannot reach a conclusion as to whether
the respondent is entitled to the presumption of admission for lawful
permanent residence contained in 8 CFR 4.2(j). Nevertheless, we find
that a remand will be unnecessary, due to our conclusion that even if the
respondent had acquired the presumption of lawful admission under 8
CFR 4.2(j), he would no longer have the status of a lawful permanent
resident_

Section 101(a)(20) of the Act defines the term "lawfully admitted for
96

Interim Decision #2319
permanent residence" ks meaning "the status of having been lawfully
accorded the privilege of residing permanently in the United States as
an immigrant in accordance with the immigration laws, such status not
having changed." (Emphasis supplied.) Section 211(b) of the Act provides for a waiver of the documentary requirements for admission for
one who can qualify as a "returning resident immigrant" as that term is
defined in section 101(a)(27)(B). A "returning resident immigrant" is
defined by section 101(a)(27)(B) as "an immigrant, lawfully admitted for
permanent residence, who is returning from a temporary visit abroad."
The issue in this case is whether the respondent's status has
"changed" within the meaning of section 101(a)(20) of the Act. The
respondent was absent from the United States for 12 years. Without
limiting the circumstances which may be found to effect a "change" in
status, we conclude that one test as to whether the respondent has
"changed" his status is whether he could have qualified as a "returning
resident immigrant" upon his reentry into the United States in 1968
after his absence in the Philippines. It would be incongruous to have a
situation where an alien could no longer qualify as a "returning resident
immigrant," yet nevertheless could maintain that his status as a lawful
permanent resident had not "changed" by virtue of his absence. Compare Matter of Antolin, 121.1 N. Dec. 127 (BIA 1967), with Santos v.
INS, 421 F.2d 1303 (C.A. 9, 1970), and Matter of Salviejo, 13 I. & N.
Dec. 557 (BIA 1970).4

Factors which we use to determine whether an alien qualifies as a
"returning resident immigrant" after a "temporary visit abroad" can
thus be applied to determine whether the respondent in the present case
has "changed" his status. Factors to be considered are (1) the duration
of the alien's absence from the United States, (2) the location of the
alien's family ties, property holdings, and-job,' and (3) the intention of
the alien with respect to both the location of his actual home and the
anticipated length of his excursion. Matter of Castro, 14 L & N. Dec.

492 (BIA 1973).
The respondent resided in•the Philippines for 12 years after leaving
Guam. During this time he never returned to the United States, nor is
there evidence that he intended to return, or that he intended his
anticipated stay in the Philippines.to be of short duration. His family
' Examples of other situations in which we have stated that status has been "changed"
are: where an alien has his status adjusted from that of an immigrant to that of a
nonimmigrant, Matter of S—, 6 I. & N. Dec. 392 (BIA 1954; A.G. 1955); Matter of
M—P---, 9 I. & N. Dec. 747 (BIA 1962); where an alien leaves the United States under an
order of exclusion or deportation, Matter ofIqat, 10 L & N. Dec. 460 (BIA 1964); where an
alien is involuntarily repatriated to a foreign country in accordance with law, Matter of
T—, 6 I. & N. Dec. 778 (BIA 1955); where the alien was removed from the United States
at his own request at Government expense, Mattes of Marcos, 11 I. & N. Dee. 740 (BIA
1966).

97

Interim Decision #2319
ties, property holdings, and job were all in the Philippines; his only tie to
the United States is his citizen brother. Assuming arguendo that the
respondent vas entitled to the presumption of lawful admission under 8
CFR 4.2(j), we conclude that his status has "changed" by virtue of his
12-year absiince in the Philippines.
The respondent argues that he cannot be said to have intended to
abandon his status as a lawful permanent resident because he was not
even aware that he had attained that status until recently. The immigration judge, apparently relying on some of our language in Matter of
Antolin, supra, stated that intent was immaterial to the issue of

whether the respondent's status had changed. We believe that this
statement requires some qualification.
The thrust of some of our language in Matter of Antolin, supra, and
Matter of Six s , 11 I. & N. Dec. 171 (BIA 1965), where we cited section
101(a)(83) of the Act, was that intent was not relevant to determining
change of status. Nevertheless, many decisions indicate that intent is
one factor which should be considered in determining whether an alien
has retained lawful permanent resident status. See e.g., U.S. ex rel.
Lesto v. Day, 21 F.2d. 307 (C.A. 2, 1927); Gamero v. INS, 367 F.2d 123
(C.A. 9, 1966); Santos v. INS, supra; Matter of Castro, supra; Matter of
Montero, 19 I. & N. Dec. 399 (BIA 1973); Matter of Salviejo, supra;
Matter ofThlma-Ortiz, 11 L & N. Dee. 414 (BIA 1965); Matter of B—, 9
T. & N. Dec. 211 (MA 1961), rev'd on other grounds, Barrese v. Ryan,
203 F. Supp. 880 (D. Conn. 1962); Matter of D — C— , 3 I. & N. Dec. 519
(BIA 1949); Matter of Guiot, 14 I. & N. Dee. 393 (D.D. 1973).
The mere fact that the respondent alleges that he never had a specific
intent to abandon his permanent resident status, however, does not
establish that he had an affirmative intent to return to the United States
after a temporary visit abroad. Moreover, the other factors in this case,
-

such as duration of stay and ties, are overwhelming evidence of a

supra.
The respondent also contends that if he had known of his permanent
resident status in 1956, he would not have returned to the Philippines,
but rather would have remained in the United States. However, as we
stated in Matter of Antolin, supra, we must determine the case on the
facts before us, not upon speculation as to what might have happened
"change" in status. See Matter of Castro,

under different circumstances.
We also reject the respondent's claim that the failure of the Govern-

ment to inform him of his permanent resident status prevents the
Government from denying him such status at the present time. In a
somewhat analogous case, the United States Supreme Court recently
rejected a petition for United States citizenship based on the Government's failure to apprise an alien of his right to naturalization. INS v.
Hibi, 414 U.S. 5 (1973).
98

Interim Decision #2319
Finally, the respondent contends that the status of lawful permanent
resident is comparable to that of citizenship, and therefore cannot be
lost except upon a voluntary act of renunciation. The loss of lawful
permanent resident status cannot be equated with the loss of citizenship. Matter of Antolin, supra; cf. Rabang v. Boyd, 353 U.S. 427 (1957);
Manlangit v. INS, 488 F.2d 1073 (C.A. 4, 1973).
The result reached by the immigration judge was correct. The appeal
will be dismissed.
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily

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

99


Interim Decision #2598

MATTER OF MANNEH

In Exclusion Proceedings
A-20460984

Decided by Board July 8, 1977
(1) The provision of 8 C.F.R. 236.1 which confers on immigration judges that authority
which is appropriate and necessary for the disposition of cases, does not confer upon him
the authority to entertain an application for adjustment of status under section 245 of
the Immigration and Nationality Act, in exclusion proceedings.
(2) The immigration judge's authority in exclusion proceedings is contingent upon any
limitations found elsewhere in the Act or regulations. With respect to the consideration
of applications for adjustment of status filed under section 245 of the Immigration and
Nationality Act, the immigration judge is only permitted to consider those made by an
alien after he has been served with an order to show cause or warrant of arrest, in
proceedings under section 242 of the Act. Any other alien seeking adjustment of status
under section 245 must apply to the district director. See 8 C.F.R. 245.2(a)(1).
EXCLUDABLE!
Order: Act of 1952—Section 212(a)(20) [8 U.S.0 1182(a)(20)1—Immigrant—no visa
ON BEHALF OF APPLICANT:
Richard D. Steel, Esquire
636 Public Ledger Building
6th & Chestnut Streets
Philadelphia, Pennsylvania 19106

ON BEHALF OF SERVICE:
Mary Jo Grotenrath
Appellate Trial Attorney

BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

The applicant appeals from the immigration judge's decision in which
he found that he lacked authority to consider the applicant's application
for adjustment of status. The appeal will be dismissed.
This case was remanded to the immigration judge by order of the
-

United States District Court (BD Pa. August 23, 1976) Civil Action No.

76-1903, for a determination of his authority to consider the application.
The immigration judge concluded that he lacked authority. The applicant brought this appeal.
The applicant argues that immigration judges have authority to consider adjustment of status applications by virtue of the regulation which
confers on them in the conduct of exclusion proceedings: that the authorIty which is "appropriate and necessary for the disposition of such
cases," 8 C.F.R. 236.1_ That regulation provides:
272

Interim Decision #2598
In determining cases referred for further inquiry as provided in section 235 of the Act,
special inquiry officers shall have the powers and authority conferred upon them by the
Act and this Chapter. Subject to any specific limitation prescribed by the Act and this
chapter, special inquiry officers shall also exercise the discretion and authority conferred upon the Attorney General by the Act as is appropriate and necessary for the
disposition of such cases

Adjustment of status, he argues, is within the category of a disposition
of the case which is "appropriate and necessary." He cites our decision
of Matter of Ducret, Interim Decision 2483 (BIA 1976) in support of his
argument.
In Matter of Ducret, supra, we found that the immigration judge by
virtue of his authority to take such action "consistent with applicable
provisions of law and regulation as may be appropriate to the disposition
of the case" (8 C.F.R. 242.8(a)) possesses authority to grant nunc pro
tune permission to reapply for admission to an alien in deportation
proceedings who is charged with deportation on the ground that he
reentered after having been deported, without having first secured the
pern .ssion of the Attorney General. The action found to be within the
scope of that "appropriate to the disposition of the ease" in Matter of
Ducret, supra, was not subject to a specific limitation elsewhere in the
Act or regulations, nor was it inconsistent with the Act or regulations.
In Matter of DeG—, 8 I. & N. Dec. 325 (BIA 1959, A.G. 1959), the
Attorney General, discussing the scope of the Board's authority in
exclusion proceedings encompassed by the phrase "such discretion and
authority as is appropriate and necessary for the disposition of the case"
held that the Board's authority over discretionary applications for relief
is both subject to the limitations prescribed by the regulations and
confined to the jurisdiction in which the Board is authorized to operate.
DeG—, involved an application for relief under a different section than
is sought here but like this ease, it involved Service regulations which

proyided that the application be submitted to the District Director. The
Attorney General's holding in that case is applicable here.
The immigration judge's authority in exclusion proceeding granted by
8 C.F.R. 236.1 is as quoted above:
" [s]ubject to any specific limitation prescribed by the Act and this chapter."
We find that in this ease, unlike the situation in Dueret, the au hority

sought to be brought within the scope of the immigration judge's authority is specifically limited elsewhere in the regulations to the District
Directors, with the exception of the cases of aliens who have been
served with Orders to Show Cause, whose applications may be considered only in deportation proceedings.
In pertinent part, the provisions of the regulations which relate to
adjustment of status provide:
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Interim Decision #2598
An application for adjustment of status under section 245 of the Act . . „ by an alien
after he has been served with an order to show cause or warrant of arrest shall be made
and considered only in proceedings under Part 242 of this chapter. In any other case, an
alien who believes that he meets the eligibility requirements of section 245 of the Act
. . . and §245.1, shall apply to the district director having jurisdiction over his place of
245.2(a)(1).

residence. R

No appeal shall lie from the denial of an application by the district director but such
denial shall be without prejudice to the alien's right to renew his application in proceedings under Part 242 of this chapter. . . . 8 C. F.R. 245.2(a)(4).

The above regulations, which carved out jurisdiction for immigration
judges in deportation proceedings over applications for section 245
relief, were first adopted by amendments to the regulations published
on December 19, 1961, 26 Federal Register 12114. Prior thereto, District Directors had sole authority over these applications. At the time
that the immigration judge's authority was thus enlarged in deportation
[Part 242] proceedings, no provision was adopted (and none has since
been adopted) for enlarging it in exclusion [Part 236] proceedings as
well.
Inasmuch as the immigration judges previously had no authority over
adjustment of status applications, and given that the authority has been
specifically granted in Part 242 proceedings but not in Part 236 proceedings, it cannot be found that the authority extends to immigration
judges in the conduct of Part 236 proceedings. We adhere to our previous holdings in cases in which the issue Id the immigration judge's
authority over adjustment of status applications in exclusion proceedings was raised and rejected, Matter of Zappq, 14 I. & N. Dec. 405 (BIA
1973), Matter of Wong, 12 I. & N. Dec. 407 (BIA 1967). The regulations
specifically limit the immigration judge's authority (and ours on appeal)
over applications for section 245 relief to those which are filed by aliens
in deportation [Part 242] proceedings. Immigration judges do not have
that authority in exclusion proceedings. Matter of Zappa, supra, Matter
of Wong, supra.

The respondent is a native and citizen of Liberia who presented
himself for admission as a nonimmigrant visitor on June 7, 1972. At that
time his inspection was deferred. On April 30, 1975, he was found
excludable under section 212(a)(20) by the immigration judge. It is
alleged that the applicant thereafter married a citizen of the United
States who filed a Form 130 petition on his behalf which was approved
on March 24, 1976. An application thereafter for adjustment of status was
apparently made to and denied by the District Director. The applicant
seeks to renew his application in these exclusion proceedings which were
.

274

.

Interim Decision #2598
reopened by the order of the court. The decision of the immigration judge
was correct that he has no jurisdiction to consider the matter.
ORDER: The appeal is dismissed.

275


Cite as 28 I&N Dec. 399 (A.G. 2021)

Interim Decision #4029

Matter of NEGUSIE, Respondent
Decided by Attorney General October 12, 2021
U.S. Department of Justice
Office of the Attorney General

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer this case to me for review of its decision. The
Board’s decision in this matter is automatically stayed pending my review.
See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001).

399


Interim Decision #1326

HATTER. OF KARL

In DEPORTATION Proceedings
A-10981520
Decided by Board March 9,1964
Respondent's reentry in October 1962 upon a false claim to United States citizenship following a 10-day vacation in Mexico constitutes an entry under
section 101(a) (18), Immigration and Nationality Act, upon which to predicate
a ground of deportation L.Rosettburg v. Monti, 874 U.S. dde, distinguished_]
°Hamm:
Order: Act of 1952—Section 241(a) (4) (8 U.S.O. 1251(a) (4) I—Convicted of
crime involving moral turpitude committed within 5 years after
entry, and sentenced for a year or more; to wit : Interstate
transportation of stolen motor vehicle.

Respondent is 21 years old, single, male, alien, a native and last a
citizen of Hungary. He last entered the United States at El Paso,
Texas, in October 1962, and on this entry is based the charge set forth
above, that respondent was convicted of a crime involving moral turpitude committed within 5 years after entry. The special inquiry officer
found that respondent is not deportable on this charge, because respondent's last entry did not constitute an "entry" under Rosenberg v.
Fleuti , 874 U.S•. 449, 10 L. ed. 2d 1000 (June 17, 1963). The acting
trial attorney appeals to this Board from the special inquiry officer's
decision, alleging that this entry is an entry as required by the statute
and is not within Fleuti. The special inquiry officer's order will be
withdrawn. and the record reopened for consideration of respondent's
application under section 213 (h) .
Respondent was born in Hungary on February 14, 1943. He believes
that six months after his unauthorized departure he lost his Hungarian
citizenship. He entered the United States on December 30, 1956, and
was accorded the status of lawful permanent resident as of the date of
his original arrival -under the Act of July 25, 1958, relating to
Hungarian refugees. His last entry was in October 1962 from
Mexico at El Paso, Texas.
480

Interim Decision #1326
Respondent was convicted for check forgery in 1957 at the age of
15. He states that he was sentenced to imprisonment for 15 months.
The record of that conviction is not a part of this record, but the special
inquiry officer states that respondent was treated as a juvenile delinquent at that time (Tr., p. 16). On February 8, 1960, respondent was
sentenced to "a period not to exceed his minority" in the United States
District Court, District of Minnesota, upon a plea of guilty of having
committed an act of juvenile delinquency in the matter of unlawfully
transporting a stolen car in interstate commerce. He was then 17
years of age, so the period of his sentence was 4 years. He was paroled
on February 1, 1962. Respondent was sentenced on February 6, 1963,
for 2 years or "until his deportation could be accomplished," for
second offense of transporting a stolen car, committed on or about
December 5, 1962. The respondent has been in the United States about
7 years, and he has spent almost 5 years of this time in penal
institutions.
Karl testified that he made several trips into Canada and Mexico,

that upon one return he was delayed about 45 minutes by the inspection routine. Thereafter, he claimed birth in the United States when
he returned from Canada and Mexico, because he "didn't want to mess
with the inspection routine if I showed my green card" (exh. 12) .
He testified that his trips to Canada at Vancouver were usually just
overnight, because he had friends there. His vacation trip to Mexico
in October 1962 was his only extended absence from the United States.
He and two friends took a motorcycle trip to Mexico City for a period
variously described as a week, 10 days, or 2 weeks. He had his alien
registration (green) card with him, but, having found it less timeconsuming to claim birth in the United States, he did not show his
card.

Respondent contends that he cannot be deported for having committed a crime within 5 years after entry because his return to the
United States was after a brief casual trip to Mexico and did not constitute an "entry" under Rosenberg v. Fleuti, supra. The trial attorney
contends that the instant case is distinguishable on its facts from
Fleuti for the following reasons: (1) Karl's entry in October 1962
was made after a 10-day vacation to Mexico, whereas Fleuti went into
Mexico and returned after "about a couple hours," to quote the Supreme Court decision. (2) Kfirl made an illegal entry into the United
States from Mexico by a false claim of citizenship, whereas Fleuti on
his return presented himself for inspection and was admitted as a
lawful returning resident alien. While the Supreme Court decision
does not state specifically that Fleuti returned legally, the Circuit
Court of Appeals states that Fleuti "then re-entered as a returning
708-456-65-----32

481.

Interim Decision #1326
resident alien." 1 (3) The appeal seeks to establish that respondent's
entry without inspection was, to quote the Supreme Court, "contrary
to some policy reflected in the immigration laws." (4) Fleuti was returning to a lawful permanent residence, whereas the respondent was
in the United States after several prior entries on a false claim to
citizenship; the trial attorney contends that following these entries
without inspection, respondent's residence in the United States was no
longer lawful, and that to gain the benefit of the Fleuti decision, an
alien must be returning to a lawful residence. These contentions were
also argued before the Board by the Service representative.
The Supreme Court in Fleuti first refers to "the hind of brief absence
from the country that characterizes the present case." The Court
again refers to the length of time Fleuti was stbsent from the United
States as follows: "The question we must consider, more specifically,
is whether Fleuti's short visit to Mexico can possibly be regarded as
a 'departure to a foreign port or place . . . [that] was not intended,'
within the meaning of the exception to the term 'entry' created by
the statute." The Court refers also to the facts that Fleuti made
"his afternoon trip," and that he was an alien "long resident in this
country after lawful entry" who "merely Stepped across an international border." The Court again states, "One major factor relevant
to whether such intent can be inferred is of course the length, of time
the alien is absent." (Emphasis supplied throughout.) The special
inquiry officer concluded that respondent's temporary absences of from
one to 10 days from the United States were not "meaningfully interruptive of his permanent residence status," notwithstanding his "evasion of proper inspection as an alien upon his return from most of
those temporary visits abroad," and that "the respondent's intent at
time of departure must be the critical test of whether his permanent
residence status" was interrupted under the Fleuti decision.
We disagree with the special inquiry officer's conclusion that the respondent's return in October 1962 does not subject him to the consequences of an "entry" sufficient to sustain the present charge. We
think, under the particular circumstances of this case, that an absence
of 10 days is too long to permit Karl to bring himself within the rule
of Fleuti. His vacation trip took him as far as Mexico City and is in
a very different category from a visit of a few hours which began tend
ended the same afternoon. We are not prepared to state at this time
just where the line will be drawn on the issue of how long the visit
must have been to make the return constitute an "entry." The length
of the visit is, of course, not the only factor. Respondent intended
to resume his residence in the United States st the end of his vacation,
1

menu v. Rosenberg, 302 F. 2d 652 at 653 (9th Cir., 1962).
482

Interim Decision #1326
but this intent alone certainly does not preserve to him the right to
return to the United States illegally, knowingly evading inspection,
following a 10-day absence from the country. We cannot stretch
the Fleu,ti doctrine far enough to cover the facts in this situation.
The Supreme Court quotes with approval from Di Pasquale v.
Karnuth, 158 F. 2d 878 at 879, wherein Judge Hand remarked that
"it is . . . important that the continued enjoyment of . . . [our]
hospitality once granted, shall not be subject to meaningless and
irrational hazards." Karl, however, subjected himself repeatedly to
the hazards of exclusion or deportation by making several departures
and illegal entries by claiming birth in the United States. If the
immigration statutes and the established techniques of inspection

are to have any meaningful and rational application, it must be held
that lad made an entry from a foreign port or country under section
101(a) (13) of the Immigration and Nationality Act when he returned
from Mexico in October 1962.
We are not prepared at this time to hold, as requested by the Service,
that every entry without inspection following a visit outside the United
States, no matter how brief, completely neutralizes the Fleuti holding.

The case will be remanded to the special inquiry officer to permit him
to make a determination on respondent's application for 'withholding
of his deportation to Hungary under section 243 (h) on the ground
that his deportation to that country would subject him to physical
persecution. Because he intended to terminate the proceedings, the
special inquiry officer did not dispose of this application.
ORDER: It is ordered that the special inquiry officer's order of
November 22, 1963, terminating these proceedings be and is hereby
withdrawn.
It is further ordered that the record be reopened for determination
of the respondent's application under section 243(h) of the Immigration and Nationality Act.

483


Interim Decision #1271

MATTER

or Qum

In DEPORTATION Proceedings
A-117'15487
Dooidod by Board February 91,1963
Respondent, born in Saipan May 5, 1933, has no claim under the Organic Act
of Guam (August 1, 1950) to citizenship through his noncitizen national
father by reason of the latter's birth in Guam in 1004, sines under this
provision of law citizenship does not extend to the children of the persons
described therein.
CHARGE :

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)7—Convicted of
two crimes involving moral turpitude after entry, to
wit, petit theft and worthless checks.

An order entered by the special inquiry officer on December 3, 1962
terminates the above-captioned proceeding and certifies the case to
tine Board of Immigration Appeals for final decision. Termination ie
based primarily on a finding by the special inquiry officer that alienage
has not been established. The Service representative has submitted a
memorandum of law in support of his contention that the respondent
has no claim to United States citizenship under the Organic Act of
Guam enacted August 1, 1950 (64 Stat. 384). The Service representative suggests that the ease be remanded to the special inquiry officer
for further consideration following a ruling on the issue of alienage
by the Board of Immigration Appeals.
The Issue of Alienage

We will briefly review the facts concerning the issue of the respondent's nationality. The respondent was born May 5, 1933 on Saipan,
Mariana Island, now a Trust Territory under the administrative jurisdiction of the United States. His father was born of Guamanian.
parents on the island of Guam, June 10, 1901 (Ex. 4). The respondent's father was taken by his parents to the island of Saipan "sometime
in 1912" (Ex. 4) . He, the respondent's father, resided on Saipan
206

Interim Decision #1271
from 1912 until his death on May 19, 1950 except for a 80-day visit to
Guam in 1932 (Ex. 4). The respondent's mother, a native of Saipan,
married the respondent's father in Saipan on October 17, 1925 (p. 5
& Ex. 4) .

A person born in Guam on or after April 11, 1899, and prior to
January is, 1941, became a noncitizen national of the United States

at birth if his father at the time of such birth was an American noncitizen national (Matter of S—, 3 I. & N. Dec. 589, B.I.A., April 26,
1949). The respondent's father acquired noncitizen nationality at
birth since the record shows that the respondent's grandfather was
Guamanian at the time of the birth of the respondent's father on
June 10, 1904 (Ex. 4).
The special inquiry officer concludes that the respondent derived
United States citizenship through his noncitizen national father under
the provisions of the Organic Act of Guam 1 notwithstanding the fact
that the respondent's father died on May 19, 1950, some two and onehalf months prior to the enactment of the said Act on August 1, 1950.
The special inquiry officer reasons that if the respondent's father were
alive on August 1, 1950 he (the respondent's father) would have
acquired United States citizenship. The special inquiry officer maintains that the death of the respondent's father does not affect the
respondent's United States citizenship because as a child of a person
born on the island of Guam subsequent to April 11, 1899 and as one
who was residing on the island on the date of enactment of the
Organic Act he (the respondent) derived United States citizens -hip
pursuant to paragraphs (a) and (b) of section 206 of the Nationality

Act of 1940 (8 U.S.C. 606-1950 Edition) (see Appendix A).
Section 206(a) of the Nationality Act of 1940 declares two classes
of persons and their children born after April 11, 1899 to be citizens
of the United States provided they were residing on the island on
August 1, 1950. The respondent does not qualify under paragraph
(a) of section 206 (supra) because (1) he is not a child of a Spanish
subject who was an inhabitant of the island of Guam on April 11,
1899 nor is he (2) the child of a person "born in the island of Guam
who resided in Guam on April 11, 1899." The respondent's father was
born on Guam on June 10, 1904, some five years subsequent to the
cutoff date of April 11, 1899. Furthermore, the respondent's father
gained nothing under section 206 (a) (supra) because he was deceased
on the date of the enactment of the Organic Act and according to the
record had not resided on Guam since 1912 except for a temporary
visit of 30 days in 1932 (Ex. 4).
Section 4(a) of the Organic Act of Gdam (04 Stat. 354) has been set forth
in Appendix A.

207

Interim. Decision #1271
Paragraph (b) of section 206 (supra) declares a third class of persons to be citizens of the United States, to wit, "all persons born in the
island of Guam on or after April 11, 1899 . . . subject to the jurisdiction of the United States" provided such person if born before the

date of enactment of the Act had "taken no affirmative steps to preserve or acquire foreign nationality." The respondent does not derive
citizenship through his father under this provision because it does not
extend to the children of the persons described therein. We conclude
that the respondent, born in Saipan, has no claim to derivative citizenship under the Organic Act of Guam (Appendix A) by reason of his
father's birth in Guam in 1904.
The question arises as to whether the respondent was born a noncitizen national of the United Stales. Prior to the effective date of
the Nationality Act of 1940, January 13, 1941, there were no statutory
provisions regulating the status at birth of children born outside of
the United States, its territories, and possessions to nonoitizen na ,
tionals of the United States. Section 204(b) of the Nationality Act
of 1940 2 provided in substance that a person born outside of the United
States and its outlying possessions on or after January 13, 1941 "of
parents both of whom are nationals, but not citizens of the United
States" who previously had resided in the United States or one of its
outlying possessions, became nationals but not citizens of the United
States at birth. This provision of the Nationality Act of 1940 does
not affect the respondent because he was born prior to January 13,
1941 and according to the record his mother was not a national of the
United States.
-

The Issue of Deportability

The respondent has been charged with deportability under section
241(a) (4) of the Immigration and Nationality Act (8 U.S.C. 1251 (a)
(4) ) in that he has been convicted of two crimes involving moral turpitude after entry, to wit, petit theft and "making, drawing and passing
certain worthless checks." These charges were not fully developed by
the special inquiry officer because he concluded that alienage had not
been established. Furthermore, it appears that the trial attorney
for the Immigration Service shared the special inquiry officer's belief
with regard to the respondent's citizenship (p. 12).
The Service representative suggests that the case be remanded to
the special inquiry officer for further evaluation of the deportation

charge in light of the Board's ruling with regard to the respondent's
alienage and to afford the respondent an opportunity for the submiss

8 U.S.C. 604( b) , 1910 Edition, now 8 U.S.C. 1408.

208

Interim Decision #1271
sion of additional evidence on the issue of his citizenship and his

deportability. We will so order.

ORDER It is directed that the ease be remanded to the special
inquiry officer for the purposes stated in the foregoing opinion.
APPENDIX A

Sec. 4. (a) Chapter II of the Nationality Act of 1940, as amended,
is hereby further amended by adding at the end thereof the following
new section :
Sec. 206. (a) The following persons, and their children born after
April U, 1899, are hereby declared to be citizens of the -United States,
if they are residing on the date of enactment of this section on the
island of Guam or other territory over which the United States
exercises rights of sovereignty :
(1) All inhabitants of the island of Guam on April 11, 1899,
including those temporarily absent from the island on that

date, who were Spanish subjects, who after that date continued to reside in Guam or other territory over which the
United States exercises sovereignty, and who have taken no

affirmative steps to preserve or acquire foreign nationality.
(2) All persons born in the island of Guam who resided in Guam
on April 11, 1899, including those temporarily absent from
the island on that date, who after that date continued to
reside in Guam or other territory over which the United
States exercises sovereignty, and who have taken no affirmative steps to preserve or acquire foreign nationality.
(b) All persons born in the island of Guam on or after April 11,

1899 (whether before or after the date of enactment of this section),
subject to the jurisdiction of the United States, arc hereby declared to

be citizens of the United States: Provided, That in the case of any
person born before the date of enactment of this section, he has taken
no affirmative steps to preserve or acquire foreign nationality.
(c) Any person hereinbefore described who is a citizen or national
of a country other than the United States and desires to retain his
present political status shall make, within two years of the date of
enactment of this section, a declaration under' oath of such desire,
said declaration to be in form and executed in the manner prescribed
by regulations. From and after making of such a declaration any
such person shall be held not to he a national of the United States by

virtue of this Act.

768-456-46---15

209


Interim Decision #1897

MALIArt of ENO

In Deportation Proceedings
A-13753885

Decided by Board .August B8, 1968
The benefits of section 241(f) of the Immigration and Nationality Act, as
amended, are not available to waive an alien's deportability based on a substantive ground of inadmissibility at entry under section 212(a) (23) of the
Act relating to conviction of illicit possession of narcotic drugs.
CHARGE:

1251(a) (1)]—ExclndOrder: Act of 1952—Section 241(a) (1) [8
able at time of entry as within section 212(a) (28) of
the Act [S 1J.S.O. 1182(a) (28)] ( alien convicted under

law relating to the illicit possession of narcotic drugs).
ON BEHALF OF RESPONDENT

ON BEHALF OF SERVICE :

Irving A. Appleraan
Appellate Trial Attorney

Samuel B. Waterman, Esquire
111 Broadway
New York, New York 10006
(Brief filed)

Emil M. Bobek
Trial Attorney
(Brief filed)

Respondent appeals from the special inquiry officer's order finding
him deportable upon the ground stated in the caption. Voluntary

departure was granted. Respondent claims (1) that he is not deportable because he was not properly convicted, and (2) that even if he
were convicted, the provisions of section 241(f) of the Act remove
him from liability to deportation. The appeal will be dismissed.
Respondent, a 39-year-old married male, a native of China and a
citizen of the Republic of China on Formosa, was admitted for permanent residence on. August 30, 1966, with an immigrant visa issued
at Hong Kong on May 19, 1966. The Service charges he was excludable at the time of this entry because of his conviction in the Magistrate Court at Kowloon, Hong Kong, on February 2 1, 1966, for unlawful possession of dangerous drugs (heroin) in violation of section 10
of chapter 134 of volume IV of the Dangerous Drugs Ordinance (EL
-

2). (He was sentenced to pay $800 or serve two months at hard labor.)

855

Interim Decision #1897
The special inquiry officer upheld the charge. He held that the conviction brought respondent within the section of the Immigration Act
which bars entry of an alien convicted for violating a law relating to
the illicit possession of narcotic drugs (section 212(a) (23) of the Act
(8 U.S.C. 1182(a) (23) ).

Respondent contends that he did not have due process, because the
special inquiry officer refused to permit him to present evidence that

he was deprived of counsel at his criminal trial. He contends that his
conviction was defective, because the act described by the conviction
record fails to show that he violated the law under which he was
charged.
The contentions must be rejected. It is well established that we are
bound by the conviction record (Matter of Adamo, 10 I. & N. Dec.
593). If counsel wishes to attack the conviction on the grounds advanced, he must do this in the jurisdiction where it occurred. Furthermore, the record shows that respondent was charged with unlawful
possession of heroin under a law which made it illegal to unlawfully
possess a dangerous drug and which specifically named heroin as a drug
to which the law applied (Ex. 3, p. 39, First Schedule, par. 3). Respondent's conviction made him deportable as charged (see Matter of
Romandia-Herreros, 11 &N Dec. 772).
COunsel contends that even if respondent comes within the terms
of section 212(a) (23), he is nevertheless relieved from liability to
deportation by section 241(f) of the Act. 1
The short answer to counsel's contention is that section 241(f)
applies only when the charge on which the Service seeks to deport an
alien requires proof that fraud existed. Here the charge is one which

does not require proof of fraud. It is, therefore, unnecessary to consider respondent's contention (Matter of Tsaconas Int. Dec. No.
1759). Nevertheless, because similar contentions are oft
en raised about
section 241 (f) , we shall state our position on it.
The Service charges that respondent is deportable because he was
inadmissible to the United States when he entered, since the law requires the exclusion of one convicted of violating a narcotic law. Some
general information about what makes an alien inadmissible will be
helpful in understanding the scope of section 241(f). An inadmissible
Section 241(f) of the Immigration and Nationality Act provides:
The provisions of this section relating to the deportation of aliens within the
United States on the ground that they were excludable at the time of entry
'

us aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall
not apply to an alien otherwise admissible at the time of entry who is the
spouse, parent, or a child of a United States citizen or of an alien lawfully
admitted for permanent residence.

856

Interim Decision #1897
alien is one immigration restrictions bar from entry. Immigration restrictions fall into two categories: (1) those which put a limit on the
number of aliens who shall enter (numerical or quantitative), and (2)
those which seek to provide that only the morally, mentally, and
physically fit shall enter (qualitative). Numerical control of entering
aliens is achieved through the requirement that an immigrant have a
visa to enter. Some factors in the allocation of visas under numerical
limitations are in alien's training, his place of birth, and his relationship to United States citizens or to legally resident aliens. Important
exemptions from the numerical limitations in the allocations of visas
depend upon the alien's relationship to a United States citizen and
his place of birth. One who obtains a visa without the proper qualifications is inadmissible_
Qualitative restrictions provide that no imdersirable alien shall
receive a visa or be admitted. Undesirable aliens are those physically,
mentally or morally disqualified; the subversives; and the violators of
criminal, immigration, or narcotics laws (S. Rep. 1515, 81st Cong.
bld Sess. 66-71 (1950)) ; Besterman, Commentary on Immigration and
Natura2ization Act, 8 U.S.C.A. pp. 18-34,51-54 (1953).
The Service charges respondent with being inadmissible on a qualitative ground—he was convicted of violating a narcotic law. He could
have been charged with being inadmissible on another qualitative
ground—he violated the immigration laws by obtaining entry by
fraud (sec. 212(a) (19) of the Act). He could have been charged on a
quantitative ground—he was one not in possession of a valid visa (sec.
212(a) (20) of the Act. A visa obtained by fraud is not a valid one.
The fact that an alien is inadmissible does not mean that he inevitably must be barred from entry. Waivers of specific grounds of
inadmissibility exist. Under certain circumstances and in the discretion of the Attorney General, an inadmissible alien may be permitted to enter for permanent residence despite the fact that he is
mentally retarded, afflicted with tuberculosis, had an attack of insanity
(sec. 212(g) ) , has been convicted of crime, 2 is a. prostitute (sec.
212(h) ), sought to enter by fraud or admits the commission of perjury
(see. 212(i)). If the alien succeeds in entering and is deportable
because he secured entry by fraud, he is removed from liability to
deportation on that ground under certain circumstances (section 241
(f)). The Attorney General has the discretionary power to admit
= Respondent's deportation is not sought on the ground that he was inadmissible under section 212(a) (9) or (10) of the Act as one convicted of crime
or crimes. His deportation is sought under other provisions, because he was convicted of the violation of a narcotic law (sec. 212(a) (23), sec. 241(a) (1) ).

857

Interim Decision *1897
an alien convicted of a narcotic violation if he is returning to resume
a lawful domicile of seven consecutive years (sec. 212(c)). There
is no other provision authorizing the entry of, or making nondeportable, one convicted of violating narcotic laws.
Counsel contends that section 241(f) makes respondent nondeportable. We must reject the contention. On its face, section 241(f)
contains three requirements: (1) a. family relationship—respondent
has this; (2) that the respondent be deportable for 2. fraudulent entry;
counsel believes that respondent comes within the section because he
did in fact obtain a visa by fraud since he did not reveal his conviction; (3) that the alien be inadmissible only because he made
a fraudulent entry—respondent is inadmissible for a narcotic violation, and would for this reason be outside the reach of the section.
Counsel contends the third requirement is met because section 241(1)
waives any ground of inadmissibility which was concealed by misrepresentation. Thus, he contends, the ground of inadmissibility based
on the narcotic conviction is waived, and respondent becomes "otherwise admissible" than by reason of the commission of fraud.
Counsel seeks support for his position in Immigration and Naturalisation Service v. Errioo, 385 U.S.. 214 (1986), in which the Court interpreted section 241(f). Counsel believes the following language justifies the conclusion that section 241(f) provides a blanket waiver of the
grounds of inadmissibility which an alien concealed :
The intent of the Act [Public Law 85-316, 71 Stat. 689 (1957), containing
the section which later became section 241 (i)l is plainly to grant exceptions
to the rigorous provisions of the 1952 Act for the purpose of keeping family
units together. Congress felt that, In many arcumatancea, it was more important to unite families and preserve family ties than it was to enforce strictly
the quota limitations or even the many restrictive sections that are designed to
keep undesirable or harmful aliens out of the country. (at 220, footnote omitted)

We believe that Enrico fails to support counsel's contention. In
fact, it supports the conclusion that an alien's inadmissibility as one
convicted of a narcotic violation is a disqualifying factor which prevents the application of section 241(f) .
Let us consider Erric
' o and Scott, the companion case dealt with
in the same opinion (Scott v. Immigration and Naturalization Service). Enrico and Scott, immigrants barred from entry by numerical
restrictions, both, by false misrepresentations, gained a status which
enabled them to avoid these restrictions : Enrico, by falsely representing
that he was a skilled worker, gained an allocation under the quota to
which he was not entitled; Scott, by falsely representing that she was
the wife of a United States citizen, gained an exemption from quota
limitations to which she was not entitled. Because the aliens did not
858

Interim Decision #1897
have valid visas, they were barred from entry on a quantitative
ground, and it was this ground the Service advanced for their
deportation.
The question before the Court was whether section 241(f) which on
its face waived only a qualitative ground—the bar to entry resulting
from the obtaining a fraudulent visa, and conditioned its applicability
on the alien being "otherwise admissible," was meant to also waive

the quantitative restriction which each alien had avoided.' The Court,.
going to the history of the section for the answer, ruled that the
quantitative restriction was also waived because the law had been
passed to give relief to aliens who had evaded quantitative restrictions.
(or had avoided an investigation which would not have revealed a disqualifying factor) 4 and it would be meaningless under such circumstances to hold that the alien had to be deported unless he complied
with the quantitative restrictions by getting a valid visa. The Court
did not rule that section 241(f) makes nondeportable an inadmissible
alien who concealed a ground of disability not relating to numerical
limitations.
When the quotation relied upon by counsel is considered in light
of the issue before the Court and in light of the Court's ruling, it does

not appear to be authority for the rule urged by counsel. When the
quotation is read in contest, it will be seen that it was not applied
to section 241(f) or its predecessor. The Court directed these remarks
to specific waivers concerning quotas, tuberculosis and conviction of
crime that appeared in the 1957 Act. It is in the paragraph that follows the one from which the quotation is taken that the Court discussed
the predecessor to section 241 (f).
To adopt counsel's contention that whatever was lied about is
waived would result in a situation where aliens who did not lie about
their inadmissibility on criminal or prostitution grounds could obtain

a waiver of their inadmissibility only in the discretion of the Attorney
General under safeguards and a finding by the Attorney General that
their entry would not be contrary to the national interest (secs. 212
(h), (i) ), but aliens inadmissible on the same grounds who lied about
'The Court pointed out that the "issue is whether the statute saves from
deportation an alien who misrepresents his status for the purpose of evading
quota restrictions * * s." 385 US at 215.
The Court stated, "Congress meant to specify two specific types of fraud that
would leave an alien 'otherwise admissible' * * * (385 US at 223)." The two
types of fraud that the Court stated would leave an alien otherwise admissible are
"fraud for the purpose of evading quota restrictions" (385 US at 222) and "fraud
for the purpose of evading an investigation * * if there were no other disqualifying factor" (385 U.S at 223).

321-654-69-56

859

Interim Decision #1897
the disqualifying factors would be free from liability to deportation
without condition even if their continuous presence were contrary to
the national interest. (Section 241(f) is not discretionary but a matter
of right (see Matter of Manchisi, Int. Dec. No. 1711).) Moreover, an
administrative waiver of the narcotic ground of inadmissibility is only
available to an alien entering to resume a lawful domicile of seven
consecutive years. The grant of the waiver is a discretionary matter
for the Attorney General (sec. 212(c) ). Yet, under counsel's reasoning
an alien who entered by misrepresentation concerning the same ground
of inadmissibility would not be deportable even if he had no prior
residence in the United States and even if his record would not justify
a grant of relief, if relief were a discretionary power. We do not
believe that this was what Congress intended.

In summary, we hold that section 241(f) relieves from liability to
deportation the alien who entered fraudulently, if, the fraud being
overlooked, he would have been admissible with the proper immigration document Applying this rule to respondent's case we find
he remains subject to deportation, for although his fraud is disregarded, and he is considered to be in possession of an immigrant
visa, he remains inadmissible because his conviction of a narcotic
violation bars his entry under section 212 (a) (23) of the Act.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

Still


Interim Decision #1855

MAT= OF MASSON

In Deportation Proceedings
A-13322900
Decided by Board March 25, 1968
Respondent, a native of Cuba, who in 1936 at age 7 was taken by his parents
to Haiti, the country of his citizenship, where he lived until his admission into

the 'United States as a visitor on July 5, 1964, is statutorily eligible for adjustment of status under the provisions of section 1 of the Act of November 2,
1966, notwithstanding he is not a refugee.
CHARGE'
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)1—Visitor for
pleasure—remained longer.
ON BEHALF OP RESPONDENT:

Albert J. Geduldig, Esquire
64 Mlle= Street
New York, New York 10038

The pioceedings have been certified to us by the special inquiry officer
for review and final decision. Respondent has been under a final order
of deportation since June 21, 1065. At a, reopened hearing on March 14,
1967 respondent submitted an application on Service Form I-485A.

for adjustment of status to that of a permanent resident under the
Act of November 2, 1966 (P.L. 89 732). His application for
permanent residence was approved by the special inquiry officer who
thereafter certified the case to us.
Respondent is a 39-year-old married male alien, a native of Cuba
and a citizen of Haiti. He was born in Cuba, but at the age of seven, in
1936, he was taken to Haiti by his parents, where he lived until entering
the United States at San Juan, as a visitor on July 5, 1964. Deportability is conceded and thus is not in issue.
The sole question presented is whether respondent, who is a native
of Cuba but who is not a refugee, is eligible to have his status adjusted
under the Act of November 2, 1966. Respondent's "Application by
Cuban Refugees for Permanent Residence" is filed under rifle provisions of Section 1 of the Act of November 2, 1966 which states as
follows
-

3914954-89-46

699

Interim Decision #1855
Notwithstanding the provisions of section 245(e) of the Immigration and
Nationality Act, the status of any alien who is a native or citizen of Cuba and
who has baga inseected add admitted or paroled into the United States subsequent to January 1, 1959, and has been physically present in the United States
for at least two years, may be adjusted by the Attorney General, in his discretion
and under such regulations as be may prescribe, to that of an alien lawfully
admitted for permanent residence if the alien makes an application for such
adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence. Upon approval of such an
application for adjustment of status, the Attorney General shall create a record
of the alien's admission for permanent residence as of a date 30 months prior
to the Sling of such an application or the date of his last arrival into the United
States, whichever date is later, The provisions of this Act shall be applicable to
the sponse and child of any alien described in this subsection, regardless of their
citizenship and place of birth, who are residing with such alien in the United
Stated.

It seems dear as pointed out by the special inquiry officer that the
purpose of the Act of November 2, 1966 was to grant benefits to those

Cubans who had fled as refugees from the Fidel Castro government of
Cuba, Indeed, the bill enacted into law was headed "CUBAN
REFUGEES-STATUS." A careful review of the legislative history
of the Act as contained in U.S. Code Congressional and Administrative News, 1966, Volume three, starting at page 3792, refers constantly
to granting relief to Cuban refugees.
However, the exact wording of the Act is specific, clear and unambiguous in stating that the status of any alien who is a native or citizen
of Cuba and who has been inspected and admitted, etc., is entitled
to the benefits of the Act. Nowhere in the Act itself is the word "refugee" used. Respondent is a native of Cuba; he was inspected and
admitted to the United States subsequently to January 1, 1959, and
has been physically present in the United States for at least two years,
and meets the other requirements of section 1 of the Act of November 2, 1966 as set forth above. When the exact wording of the Act
itself does not limit the benefits provided therein to refugees we do not
believe it is possible for us to read such word into the Act simply by
referring to the alleged purposes of the Act, and the legislative history
thereof.
For these reasons we will affirm the order of the special inquiry
officer granting respondent's application for adjustment of status to
that of a permanent resident under the Act of November 2, 1966.
ORDER: It is directed that the order of the special inquiry officer
of January 19,1968 granting respondent permanent residence under
the Act of November 2, 1966 (P.L. 89-732), be approved.

700


Interim Decision #2833

MATTER OF SQUIRES

In Deportation Proceedings
A-22712143
Decided by Board October 23, 1980
(1) Unlawfully obtaining by a false pretence $450.00 in Canadian currency with intent to

defraud in violation of section 304(1a) of the Criminal Code of Canada is a crime
involving moral turpitude.
(2) False pretence under section 319(1) of the Criminal Code of Canada is a representation of-a matter of fact either present or past, made by words or otherwise, that is
known by the person who maim; it to be false and that is made with a fraudulent
intent to induce the person to whom it is made to act upon it.
(3) A crime committed under section 304 of the Criminal Code of Canada cannot be
considered a petty offense where the value of what is obtained exceeds $50.00 and
punishment can be a term of imprinonmont for ton years.

(4) A conviction for intent to defraud has, as a general rule, been held to involve moral

turpitude.

CHARGE:

Order Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable—convicted of a
crime involving moral turpitude; false pretences
ON BEHALF

or RESPONDENT

Harry Kobel, Esquire
Rosin & Kobel
2156 City National Bank Building

Detroit, Michigan 48226
By:

Milhollan, Chairman; Maniatis,

Appleman, and Maguire, Hoard Members

In a decision dated October 30, 1979, an immigration judge found the
respondent deportable under section 241(a)(1) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(1), as an alien excludable at the time
of entry for having been convicted of a crime involving moral turpitude
under section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9) and denied
voluntary departure. The respondent has appealed. The appeal will be
dismissed as to the issue of deportability and granted as to voluntary
departure.
The respondent is a 50-year-old divorced male alien, a native and
citizen of Canada who, according to the allegations contained in the
561

Interim Decision #2833
Order to Show Cause, entered the United States on June 14, 1979, as a
nonimmigrant visitor for pleasure authorized to remain until June 17,
1979.1 He had been employed in the business of public relations in
Canada but conceded that presently he is not employed in Canada. The
respondent further testified that he is presently engaged in making a
business known as "Emily Across the Street" a success and without
him the business would have failed. The respondent contends that he
fell in love with the owner of the business that was not doing well and
decided to give up his business in Canada and concentrate on making
"Emily Across the Street" successful. He concedes that he was engaging in his usual business of public relations for the past year without
any monetary return, but did so out of love. 2
The Order to Show Cause issued the respondent on July 10, 1979,
charges that he is excludable under the provisions of section 212(a)(9)
of the Act for having committed a crime involving moral turpitude
prior to entry which was not a petty offense.
The respondent admitted and evidence was submitted to show that
he was convicted on August 11, 1970 in the Provincial Court of Canada
(Criminal Division) of the crime of unlawfully obtaining by a false
pretence $450.00 in Canadian currency from Victoria and Grey Trust
Co. Ltd. with intent to defraud in violation of section 304(la) of the
Criminal Code of Canada. The sentence was suspended and the respondent was given probation for six months.
On appeal, the respondent through counsel contends that because of
the sentence imposed, his conviction is a petty offense and that he
should be granted voluntary departure as a matter of discretion.
The questions presented is whether the respondent's conviction for
unlawfully obtaining $450.00 by a false pretence is a crime involving

moral turpitude and whether this crime is classifiable as a petty
offense. False pretence under section 319(1) of the Criminal Code of
Canada is defined as follows: A false pretence is a representation of a
matter of fact either present or past, made by words or otherwise, that
is known by the person who makes it to be false and that is made with a
fraudulent intent to induce the person to whom it is made to act upon
it.

The immigration judge found that the respondent's conviction was
for a crime involving moral turpitude. Section 304 of the Canadian
statute provides:
(1) Everyone commits an offense who (a) by a false pretence, whether directly or
The respondent testified that he could not remember the exact date of his entry and
how long he was authorized to stay but it was between June 14 and July 10, 1979.
The respondent testified that he had an agreement with the owner of "Emily Across
the Street" but he did not give the details of the agreement.
2

562

Interim Decision #2833
through the medium of a contract obtained by a false pretence, obtains anything in
respect of which the offense of theft may be committed or causes it to be delivered to
another person; ...
(2) Everyone who commits an offense under paragraph (a) of subsection (1) is guilty of
an indictable offense and is liable, to imprisonment for ten years ... where the value of
what is obtained exceeds $50.00 .

When this crime is measured by United States standards, it cannot be
considered a misdemeanor and therefore cannot be considered a petty
offense. Section 1 of Title 18, United States Code provides: (1) Any
offense punishable by death or imprisonment for a term exceeding one
year is a felony. Further, a conviction for intent to defraud has, as a
general rule, been held to involve moral turpitude. See ETA ex. ret.
Portada v. Day, 16 F.2d 328 (S.D.N.Y. 1926); Matter of P—, 3 I&N Dee.
56 (C.0. 1947; BIA 1948); Matter of C-0—, 8 I&N Dec. 488 (BIA 1959).
The immigration judge concluded that the respondent had been convicted of a crime involving moral turpitude not classifiable as a petty
offense and that his deportability had been established by clear, convincing, and unequivocal evidence.
The respondent's application for voluntary departure was denied as
a matter of administrative discretion by the immigration judge. The
immigration judge found that a nonimmigrant visitor has no
authorization to wurk in the United States even if no money is paid.
The immigration judge further found that the immigration laws them-

selves are undermined when aliens without permission engage in their
professional occupation for an extended period of time and thereafter
defeat the intent of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14)
by claiming that they have refrained from competing with United
States labor_ The immigration judge concluded that the respondent's
engagement in his public relations business by preventing the business
of his "girl friend" from failing and by assisting in all aspects of the
running of the store was engaging in employment without complying
with the normal visa requirements.

We agree with the finding of the immigration judge that the respondent's convictions under section 304(a) of the Criminal Code of
Canada is a crime involving moral turpitude and is not classified as a
petty offense. We conclude that the respondent's deportability under
sections 241(a)(1) of the Act as an alien who at the time of entry was
excludable as one who was convicted of a crime involving moral turpitude under section 212(a)(9) of the Act has been established by clear,
convincing, and unequivocal evidence.
In our review of the record, we do not find that the respondent's
conviction or his unauthorized employment is so unfavorable as to
preclude him from the benefit of voluntary departure. Therefore, the
decision of the immigration judge denying the respondent the privilege
563

Interim Decision #2833
of voluntary departure is reversed.
ORDER: The appeal is dismissed as to the finding of deportability
and sustained as to voluntary departure.
FURTHER ORDER: The outstanding order of deportation is
withdrawn, and in lieu of an order of deportation the respondent is
allowed to depart voluntarily, without expense to the Government,
within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director and under such

conditions as he may direct. In the event of the respondent's failure to
so depart, the order of deportation will be reinstated and executed.

564


Interim Decision #2268

MATTER OF SEPULVEDA

In Deportation Proceedings
A-11345658

Decided by Board March 12, 1974
Respondent, who was born in Mexico on December 30, 1931, of a United States
citizen mother and alien father, has no claim to citizenship at birth under
section 1993, Revised Statutes, since his father never became a United States
citizen. Neither did he acquire citizenship under section 301(a)(7) of the
Immigration and Nationality Act, which was not retroactive; nor did he derive
citizenship under section 5 of the Act of March 2, 1907, as amended by the Act
of May 24, 1934, since he first entered the United States in 1948 and his case is
governed by the provisions of section 314 of the Nationality Act of 1940, which
were then in effect and which required the naturalization of both parents.'
CHARGES:
Order! Act of 1952—Sections 241(a)(1) i8 U.S.C. 1251(a)(1)] and 212(a)(17) [8

U.S.C. 1182(a)(17)]—Alien excludable at time of entry
by reason of having been previously arrested and
deported and not thereafter having received consent
to apply for readmission to the United States.
ON BEHALF OF RESPONDENT: Gary H. Manulkin, Esquire
International Institute of Los Angeles
One Stop Immigration Center
3609 North Mission Road
Los Angeles, California 90031

This is an appeal from the immigration judge's denial of the
respondent's motion to reopen. At the time of the deportation
hearing, deportability was conceded. In the motion to reopen, the
respondent denied deportability and requested termination of the
proceedings on the ground that he is a United States citizen. The
appeal will be dismissed.
The respondent's mother was born in Arizona on October 13,
1903. She married the respondent's father, a citizen of Mexico, on
October 10, 1920, in Arizona. Counsel alleges in his brief that she
proceeded to Mexico immediately after her marriage for a temporary visit to see relatives, and that upon her intended return to
the United States in 1921, she was prevented by a border official
616

Interim Decision #2268
from reentering the country. She thereupon commenced living
with her husband in Mexico, where they live together to this day.
The respondent was born in Mexico on December 30, 1931. He has
entered the United States numerous times. He was deported on
June 22, 1965. He last entered the United States October 17, 1971
without having secured permission from the Attorney General to
reapply.
The respondent claims that he acquired United States citizenship at birth by virtue of the fact that his mother is a native-born
United States citizen. The law in effect on the date of birth
governs acquisition of citizenship. At the time of the respondent's
birth, acquisition of United States citizenship by children born
abroad was limited to children of United States citizen fathers,
Revised Statutes, § 1993, Montana V. :iennedy, 366 U.S. 308 (1961),
Rogers v. Bellei, 401 U.S. 815 (1971). The respondent's father has
never become a citizen of the United States. Accordingly, the
respondent did not acquire United States citizenship at birth
pursuant to Revised Statutes, § 1993.
The respondent claims that he acquired citizenship according to
the provisions of section 301(a)(7) of the Act (effective December 24,
1952). This legislation was not retroactive, Wolf v. Brownell, 268
F.2d 141 (C.A. 9, 1957).
In the alternative, the respondent claims derivative naturalization as of 1948 (the date he first entered the United States),
pursuant to the terms of section 5 of the Act of March 2, 1907, as
amended by the Act of May 24, 1934 (48 Stat. 797). 1 He claims that
his mother resumed her United States citizenship on July 2, 1940,
the date of a statutory amendment which extended repatriation to
native-born women who had lost their United States citizenship by
marriage and who had resided continuously in the United States
since the date of the marriage, 54 Stat. 715.
In order to claim citizenship by virtue of the Act of July 2, 1940,
the respondent makes the following assumptions: (1) that his
mother was expatriated by her marriage in 1920 to an alien; (2)
that the Government is estopped from denying that she resided
continuously in the United States from the date of her marriage,
because it is the Government which erroneously prevented her
from meeting this condition (counsel does not explain why, if the
"Sec. 5. That a child born without the United States of alien parents shall be
deemed a citizen of the United States by virtue of the naturalization of or
resumption of American citizenship by the father or the mother: Provided, That
such naturalization or resumption shall take place during the minority of such
child: And provided further, That the citizenship of such minor child shall begin
five years after the time such minor child begins to reside permanently in the
United States."

617

Interim Decision #2268
respondent's mother had lost her United States citizenship as per
assumption (1), it was erroneous for the border official to prevent
her return as a United States citizen); (3) that the respondent was
residing permanently in the United States as of 1948, and that
because the Government erroneously deported him, the Government is estopped from asserting that he did not reside five years
thereafter in the United States; (4) that the provisions of the Act

of May 24, 1934, supra, regarding derivation apply rather than the
provisions of the Act of 1940. All four of these assumptions are
questionable. We shall dispose of the case on the ground that the
fourth assumption is erroneous. Accordingly, it will not be necessary for us to discuss the first thiee, and we shall not.
Derivation of citizenship through naturalization of parents is
governed generally by the statute in effect on the date that the
last material condition is fulfilled, Matter of T , 7 I. & N. Dec. 6'79
(Reg. Corn. 1958). An exception has been created for derivation
upon completion of required residence commenced pursuant to
previous law, Bertoldi v. McGrath, 178 F.2d 977 (D.C. Cir., 1949).
This exception is not applicable to the respondent who had not
commenced residence while the prior act (the Act of May 24, 1934)
was in effect; consequently he did not have a right in process of
acquisition which fell within the savings clause of the Act of 1940.
In 1948, when the respondent allegedly first entered the United
—

States, the law in effect was section 314 of the Act of October 14,

1940 (the Nationality Act of 1940), 54 Stat. 1145-1146; 8 U.S.C. 714, 2
whicrequdnatlzofbhprentsul a
were legally separated or one was deceased, exceptions not applicable to the respondent. Even apart from the question as to
whether the respondent was residing permanently in the United
States in 1948,3 he does not meet the requirement that both his
parents have been naturalized. Accordingly, his claim must fail.
2

"Sec. 314. A. child born outside of the United States of alien parents, or of an

alien parent and a citizen parent who has subsequently lost citizenship of the

United States, becomes a citizen of the United States upon fulfillment of the
following conditions:
(a) The naturalization of both parents; or
(14 The naturalization of the surviving parent if one of the parents is deceased:
(c) The naturalization of the parent having legal custody of the child when
there has been a legal separation of the parents; and if—
(d) Such naturalization takes place while such child is under the age of
eighteen years; and
(e) Such child is residing in the United States at the time of the naturalization
of the parent last naturalized under subsection (a) of this section, or the parent
naturalized under subsection (b) or (c) of this section, or thereafter begins to
reside permanently hi the United States while under the age of eighteen years "
a Counsel implies the Government is estopped from pursuing this issue,

618

Interim Decision #2268
The respondent seeks to invoke the derivation provisions of the
Act of May 24, 1934, supra, which permitted derivation of United
States citizenship upon naturalization of or resumption of citizenship by only one parent. That statute provided that citizenship
would begin five years after the minor child began to reside
permanently in the United States. The respondent concededly did
not begin to reside permanently in the United States during the
period that the act was still in effect. The Government cannot be
estopped from raising this point (assuming that the Government
could ever be estopped) as there is no showing that before the
statute was superseded by the Nationality Act of 1940 the respondent ever sought to come to the United States to reside
permanently.
Consequently, the respondent's case must be governed by the
provisions of the Act of 1940, the conditions of which he did not
meet. It has been held that the savings clause, section 347 of the
Act of 1940, fails to set forth any conditions under which citizenship may be derived after its effective date (January 13, 1941) by
virtue of previous laws, Matter of R—M—, 2 I. & N. Dec. 536 (C.O.
1946). The exception later carved out for persons who had commenced their periud of five years residence, before the 1940 Act

was passed, Bertoldi v. McGrath, supra, is of no benefit to the
respondent because he did not commence residing in the United
States while the previous act was still in effect.
Accordingly, we conclude that the respondent has not established United States citizenship. It would serve no useful purpose,
therefore, to grant his motion to reopen.
ORDER: The appeal is dismissed.

although he does not claim that the respondent ever applied to live permanently
in the United States and was erroneously prevented from doing so.

619


Interim Decision #2222

MATTER OF KARIM
In Visa Petition Proceedings

A-19168493
Decided by Board August 20, 1973
While there are several methods to obtain a legal divorce under Pakistani law,
irrespective of the method followed, certain procedures outlined in sections 7
and S of the Muslim Family Laws Ordinance (1961), XIV The Pakistan Code 67
(1967), must be complied with (1) the husband (or wife, if she initiates the
divorce; or the court, if the wife seeks a khula divorce in court) must notify the
Chairman of the Arbitration Council in writing of the desire for a divorce; and
(2) within 30 days after receipt of this notice, the Chairman must begin
reconciliation proceedings. In the absence of evidence in the instant case
showing that beneficiary's first wife complied with the above procedures in
obtaining the purported Pakistani divorce from beneficiary, the legal termination of beneficiary's first marriage and, hence, the validity of his subsequent
marriage to the United States citizen petitioner have not been established for
immigration purposes.

The United States citizen petitioner applied for immediate
relative status for the beneficiary as her spouse under section
201(b) of the Immigration and Nationality Act. The District Director denied the application in a decision dated August 7, 1972 on the
ground that the beneficiary's previous marriage- had not been
legally terminated. The petitioner appeals from that decision. We
agree with the District Director; the appeal will be dismissed.

The petitioner and the beneficiary; a native and citizen of
Pakistan, were married in the State of Washington on August 23,
1971. The beneficiary was previously married in Pakistan. He has
submitted an affidavit in which he states that he and his first wife
were divorced by mutual consent through an exchange of letters
on July 25, 1970. He has also submitted three affidavits by his
former wife in which she states that she divorced him. In one of
these affidavits she states that the divorce took effect on November 5, 1967, while in the other two the effective date is given as
July 25, 1970.
In response to our request, Mr. Krishan S. Nehra, Legal Specialist, American-British Law Division of the United. States Library of
Congress, has prepared a memorandum on divorce law in Paldstan, dated July 11, 1973. According to this memorandum, there
417

Interim Decision #2222
are several ways to obtain a legal divorce under Pakistani law. We
shall discuss only those that are applicable to the case at hand.
There are two types of divorce by mutual consent. One, called
khula divorce, involves an offer, made by the wife and accepted by
her husband, to compensate the husband if he releases her from
her marital duties. Once the offer is accepted, the divorce is
immediately effective; its operation is not postponed until the
execution of the written document called the deed of khula or
khulanama, Library of Congress memorandum, supra at 4. (If the
husband refuses to grant a khula divorce, the wife may seek one
from the court, id. at 9.) The other divorce by mutual consent is
called mubara't. It is obtained when both parties desire separation, instead of at the instance of the wife. Otherwise it is like the
khula, id. at 5.
Whether either of these mutual consent divorces can be obtained through an exchange of letters is questionable. Among
Sunni Muslims the divorce (talaq) may be written or oral and need
not be pronounced in the presence of the wife. However, without a
written document, proof of such a divorce is difficult, id. Among
Shia Muslims the talaq must be pronounced orally in the presence
of the wife and two competent witnesses in a set of Arabic words,
id. at 5-6. Such a divorce communicated solely in writing is not
valid unless the husband is physically incapable of speech, id. at 6.
It is not known whether the beneficiary or his wife is a member of
either of these groups.
Although' there is a discrepancy in the date of the purported
divorce in the wife's three affidavits, she clearly states in all three
that she divorced her husband. Nowhere does she mention.divorce
by mutual consent or any exchange of letters. Under Pakistani
law, IX The Pakistan Code 716 (1966), a wife may divorce her
husband on certain grounds, none of which appears to be applicable in this case or is mentioned in her affidavits. Under Muslim

personal law, a wife may divorce her husband if he has delegated
that power to her. No proof has been offered that such a delegation of power was made in this case.
No matter which of these or other methods of divorce is resorted
to, certain procedures, outlined in section 7 and section 8 of the
Muslim Family Laws Ordinance, 1961, XIV The Pakistan Code 67
(1967) (See Appendix), must be followed; (1) the husband (or wife, if
she initiates the divorce; or the court, if the wife seeks a khula
divorce in court) must notify the Chairman of the Arbitration
Council in writing of the desire for a divorce; and (2) within 30 days
after receipt of this notice, the Chairman must begin reconciliation
proceedings. The divorce does not become effective until the
418

Interim Decision #2222
expiration of 90 days from receipt of the notice by the Chairman,
Library of Congress Memorandum, supra at 3, 4, 5, 9 & 10.
The record is ambiguous as to the method by which the purported divorce was obtained, and there is no evidence tending to
show that the above procedures were followed. Without this
evidence, we are in no position to conclude that the marriage
between the beneficiary and his first wife has been legally terminated in accordance with Pakistani law. Consequently, we cannot
recognize as valid for immigration purposes the subsequent marriage between the beneficiary and the petitioner, upon which the
visa petition depends.
Although we must dismiss the appeal, the beneficiary is not
precluded from seeking a divorce from his first wife under local
United States law, remarrying the petitioner, and having the
petitioner submit another visa petition in his behalf.
ORDER: The appeal is dismissed.
APPENDIX
THE MUSLIM FAMILY LAWS ORDINANCE, 1961
ORDINANCE NO. VIII OR 1961 [2d MARCH 1961]

7. Talaq [divorce]—(1) Any man who wishes to divorce his wife
shall, as soon as may be after the pronouncement of talaq in any
form whatsoever, give the Chairman [of the Union Council of the
Ward where the wife resides] notice in writing of his having done
so, and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provisions of sub-section (1) shall be
punishable with simple imprisonment for a term which may

extend to one year or with fine which may extend to five thousand

rupees or with both.
(3) Save as provided in sub-section (5), a talaq unless revoked
earlier, expressly or otherwise, shall not be effective until the
expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under sub-section
(1), the Chairman shall constitute an Arbitration Council for the
purpose of bringing about a reconciliation between the parties,
and the Arbitration Council shall take all steps necessary to bring
about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq
shall not be effective until the period mentioned in sub-section (3)
or the pregnancy, whichever be later, ends.
419

Interim Decision #2222—Appendix
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the
same husband, without an intervening marriage with a third
person, unless such termination is for the third time so effective.
8. Dissolution of marriage otherwise than by talaq—Where the
right to divorce has been duly delegated to the wife and she wishes
to exercise that right, or where any of the parties to a marriage
wishes to dissolve the marriage otherwise than by talaq, the
provisions of section 7 shall, mutatis mutandis and so far as
applicable, apply.

420