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Interim Decision #3858

Matter of Jesus Ricardo VILLALOBOS, Respondent
Decided March 10, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Although the Department of Homeland Security has exclusive jurisdiction over
applications for adjustment of status under the legalization provisions of section 245A
of the Immigration and Nationality Act, 8 U.S.C. § 1255a (2012), the Immigration
Judges and the Board of Immigration Appeals have jurisdiction to determine whether
an alien was eligible for a previous adjustment under section 245A(b)(1) for purposes
of assessing the alien’s removability and current eligibility for relief from removal.
(2) An alien seeking to acquire lawful permanent resident status through the legalization
provisions of section 245A of the Act must establish admissibility, both at the time of
the initial application for temporary resident status and again when applying for
adjustment to permanent resident status under section 245A(b)(1).
(3) An alien who was inadmissible at the time of adjustment of status from temporary
resident to permanent resident under section 245A(b)(1) of the Act was not lawfully
admitted for permanent residence and is therefore ineligible for a waiver of
inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994).
FOR RESPONDENT: Danielle M. Claffey, Esquire, Atlanta, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Elena Albamonte, Deputy
Chief Counsel
BEFORE: Board Panel: PAULEY, WENDTLAND, and GREER, Board Members.
GREER, Board Member:

This case addresses the question of our jurisdiction to determine
whether an alien was eligible for a previous grant of adjustment of status
under the legalization provisions of section 245A(b)(1) of the Immigration
and Nationality Act, 8 U.S.C. § 1255a(b)(1) (2012), for purposes of
assessing the alien’s removability and current eligibility for relief from
removal. We hold that we have such jurisdiction.
In a decision dated January 18, 2011, an Immigration Judge found the
respondent removable on his own admissions under sections
237(a)(2)(A)(i) and (B)(i) of the Act, 8 U.S.C. §§ 1227(a)(2)(A)(i) and
(B)(i) (2006), as an alien convicted of a crime involving moral turpitude
and a controlled substance violation. He further found the respondent
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removable under section 237(a)(1)(A) of the Act as an alien who was
inadmissible at the time of his adjustment of status under section
245A(b)(1) of the Act. Concluding that the respondent had not been
lawfully admitted for permanent residence, the Immigration Judge denied
his request for a waiver under former section 212(c) of the Act, 8 U.S.C.
§ 1182(c) (1994), and ordered him removed. The respondent has appealed
from that decision. 1 The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the
United States without inspection on December 15, 1979. On May 1, 1988,
he was admitted to the United States as a temporary resident pursuant to
section 245A(a) of the Act. After receiving his temporary resident status,
the respondent was convicted of the following offenses in Florida:
possession of cocaine on February 11, 1991; counterfeit or altered lottery
tickets on April 19, 1991; possession of cocaine on May 29, 1991; and
possession and sale, purchase, or delivery of cocaine on November 3, 1992.
Subsequent to his 1991 convictions, the respondent adjusted his status to
that of a permanent resident under section 245A(b)(1) of the Act on
November 11, 1991.
The respondent’s criminal record came to light when he applied for a
replacement resident alien card. The Department of Homeland Security
(“DHS”) served the respondent with a notice to appear on October 2, 2007,
charging him with removability under sections 237(a)(2)(A)(i) and (B)(i) of
the Act on the basis of his convictions. 2 On May 16, 2008, the DHS lodged
an additional charge under section 237(a)(1)(A), asserting that at the time
of his adjustment of status, the respondent was inadmissible under section
212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2006),
because he had been convicted of a controlled substance violation. The
respondent conceded the charges in the notice to appear but denied the
lodged charge, arguing that he was lawfully admitted for permanent
residence as of the date he was granted lawful temporary resident status in
1

Following the respondent’s appeal, we requested supplemental briefs from the parties
to address the jurisdictional issue. Both parties submitted supplemental briefs, which
have been considered in adjudicating this appeal.
2
Information regarding the respondent’s convictions was obtained independently of his
legalization application, so the confidentiality provisions at section 245A(c)(5)(A) of the
Act, which prohibit the use in removal proceedings of information furnished in a
legalization application, are not at issue here. See 8 C.F.R. § 245a.2(t) (2015). In any
case, the respondent does not allege that the Immigration Judge violated these provisions
by relying on the contents of the legalization application.

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Interim Decision #3858

1988, rather than in 1991 when his status was adjusted under section
245A(b)(1). 3 As relief from removal, he applied for a waiver of
inadmissibility under former section 212(c) of the Act.
The Immigration Judge found that the respondent was removable on all
of the charges and that he was ineligible for a waiver under former section
212(c) of the Act. Specifically, he concluded that the respondent was
removable under section 237(a)(1)(A) because at the time his status was
adjusted from that of temporary resident to permanent resident under
section 245A(b)(1), he was inadmissible under section 212(a)(2)(A)(i)(II)
as a result of his convictions for controlled substance violations. Since the
respondent could not establish that he was admissible or that his
inadmissibility could have been waived, the Immigration Judge held that
the respondent was ineligible to adjust under sections 245A(b)(1)(C)(i) and
(d)(2)(B)(ii)(I) of the Act when he was granted permanent resident status.
The Immigration Judge further held that because the respondent adjusted
his status without satisfying the substantive requirements of the law, he was
never lawfully admitted for permanent residence and is therefore ineligible
for a waiver under former section 212(c) of the Act.

II. ISSUES
Because the DHS has exclusive jurisdiction over applications for
adjustment of status filed under section 245A of the Act, we must first
decide whether we and the Immigration Judges have jurisdiction to
determine whether an alien was eligible for a previous adjustment under
section 245A(b)(1) of the Act for purposes of assessing his removability
and current eligibility for relief.
If we do have jurisdiction, we must then decide whether the respondent
is removable under section 237(a)(1)(A) of the Act as an alien who was
inadmissible at the time of his section 245A(b)(1) adjustment. If the
respondent was inadmissible when he adjusted his status to that of a
permanent resident, we must determine if the Immigration Judge properly
denied his application for section 212(c) relief.
3

The respondent argued on appeal that a transcript of the hearing was needed to
establish that he had contested the lodged charge under section 237(a)(1)(A) of the Act.
On July 17, 2014, we remanded the record to the Immigration Judge for the preparation
of a full transcript of the proceedings. The Immigration Judge issued a decision on July
13, 2015, stating that there was no transcript because his prior decision was based on the
parties’ briefs, and he certified the case to the Board. During the remanded proceedings,
the respondent did not argue that any further hearing was warranted, and we conclude
that the record is now complete for appellate review.

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Interim Decision #3858

III. ANALYSIS
A. Jurisdiction
The respondent argues that because the DHS has exclusive jurisdiction
over section 245A adjustment applications, the Immigration Judges and the
Board lack jurisdiction in removal proceedings to determine whether his
adjustment of status under section 245A(b)(1) of the Act was lawful. In
response, the DHS contends that once removal proceedings have been
initiated, the Immigration Judge has jurisdiction to conduct the proceedings
to determine the respondent’s removability and eligibility for relief from
removal. According to the DHS, an alien’s section 245A adjustment could
otherwise never be challenged in removal proceedings.
Both section 245A of the Act and its implementing regulations give the
DHS exclusive jurisdiction over adjustment applications filed under that
section. See section 245A(f) of the Act; 8 C.F.R. §§ 245a.2(e)(1), (p),
245a.3(d)(1), (j) (2015). However, the statute and regulations also make
clear that the Immigration Judges and the Board have jurisdiction to
determine an alien’s removability once proceedings have commenced. See
sections 240(a)(1), (c)(1)(A) of the Act, 8 U.S.C. §§ 1229a(a)(1), (c)(1)(A)
(2012); 8 C.F.R. §§ 1003.1(b)(3), 1240.1(a)(1)(i) (2015).
We conclude that the limitations in section 245A do not bar us from
deciding whether the respondent is removable under section 237(a)(1)(A)
of the Act as an alien who was inadmissible at the time he adjusted status
under section 245A(b)(1) of the Act. 4 See Matter of Singh, 21 I&N Dec.
427, 435 (BIA 1996) (stating in exclusion proceedings involving a section
245A applicant that “[a]s long as the [DHS] chooses to prosecute the
applicant’s proceedings to a conclusion, the Immigration Judges and this
Board must order the applicant excluded and deported if the evidence
supports such a finding”); cf. Matter of Masri, 22 I&N Dec. 1145, 1149
(BIA 1999) (holding that Immigration Judges and the Board have
jurisdiction over proceedings to rescind an alien’s adjustment of status that
was granted pursuant to the special agricultural worker provisions of
section 210 of the Act, 8 U.S.C. § 1160 (1994), from that of temporary
resident to permanent resident).

4

We agree with the DHS that the regulations regarding protection from removal at
8 C.F.R. § 245a.34(a)(1) (2015) do not apply to aliens, like the respondent, who applied
for adjustment of status under section 245A of the Act, so those provisions have no
bearing on our jurisdiction in this case.

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B. Removability
The respondent argues that even if we have jurisdiction in these
proceedings to determine whether his adjustment under section 245A of the
Act was lawful, the charge under section 237(a)(1)(A) that he was
inadmissible at the time of admission cannot be sustained. He asserts that
he should be considered to have been lawfully admitted for permanent
residence as of the date he was granted temporary resident status in 1988,
prior to his 1991 drug convictions, rather than on November 11, 1991,
when his status was adjusted to that of a permanent resident.
In support of his contentions, the respondent relies on Perez-Enriquez
v. Gonzales, 463 F.3d 1007 (9th Cir. 2006), where the United States Court
of Appeals for the Ninth Circuit held that the admissibility of an
agricultural worker who was granted temporary resident status under
section 210(a)(1) of the Act is determined as of the date of his admission
for lawful temporary residence and is not redetermined upon his automatic
adjustment to lawful permanent resident status under section 210(a)(2). Id.
at 1008, 1015 (citing Matter of Jimenez-Lopez, 20 I&N Dec. 738, 742 (BIA
1993) (distinguishing the mechanism for adjustment of status under section
210(a)(2) as “unique under the immigration laws” because it accords lawful
permanent resident status “on the basis of a fixed schedule, without regard
for the alien’s admissibility at that time”)).
However, the respondent’s circumstances are distinguishable from those
in Perez-Enriquez. His adjustment of status from that of temporary resident
to permanent resident is governed by the legalization provisions of section
245A of the Act. Those provisions require an applicant to file two
applications—one to acquire temporary resident status and a subsequent
application to adjust his status to that of a permanent resident.
First, the alien must apply for temporary resident status pursuant to
8 C.F.R. § 245a.2(e)(1), which requires that the application be filed on
Form I-687 (Application for Status as a Temporary Resident Under Section
245A of the INA). To be eligible for temporary resident status, the
applicant must demonstrate that he satisfies the requirements of section
245A(a), including establishing that he “is admissible to the United States
as an immigrant.” Section 245A(a)(4)(A) of the Act.
After the required statutory period of temporary residence has elapsed,
the alien can apply for adjustment to permanent resident status. See section
245A(b)(1)(A) of the Act; 8 C.F.R. § 245a.3(a). That application must be
filed on Form I-698 (Application to Adjust Status From Temporary to
Permanent Resident (Under Section 245A of the INA)). 8 C.F.R.
§ 245a.3(d)(1). The applicant must demonstrate that he satisfies the
requirements of section 245A(b)(1)(C)(i) of the Act, which again includes
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Interim Decision #3858

establishing that he “is admissible to the United States as an immigrant.”
See Matter of Rosas, 22 I&N Dec. 616, 618 n.1 (BIA 1999) (noting that
adjustment of status under section 245A “occurs only after the alien has
applied for adjustment and demonstrated” that he or she is admissible); see
also 8 C.F.R. § 245a.3(c)(2) (providing that an alien who is inadmissible is
ineligible to adjust his status under section 245A).
Both the plain language of section 245A(b)(1) of the Act and its
implementing regulations provide that adjustment from temporary to
permanent resident status requires another application on a different form.
These provisions make clear that an applicant must establish admissibility,
not only to initially become a temporary resident, but also to adjust status to
that of a permanent resident. This two-step process of legalization under
section 245A is distinguishable from adjustment of status under section
210(a)(2) of the Act, which is automatic and requires no additional
determination of admissibility. We therefore conclude that an alien seeking
to acquire lawful permanent resident status through the legalization
provisions of section 245A must establish admissibility at the time of
adjustment of status under section 245A(b)(1). Section 245A(b)(1)(C)(i) of
the Act; 8 C.F.R. § 245a.3(c)(2).
The respondent was convicted of cocaine possession in February and
May of 1991 and subsequently adjusted his status to that of a permanent
resident under section 245A(b)(1) of the Act on November 11, 1991. He
was therefore inadmissible under section 212(a)(2)(A)(i)(II) at the time of
his adjustment and is removable under section 237(a)(1)(A) of the Act. See
section 245A(d)(2)(B)(ii) of the Act (stating the grounds of inadmissibility
that may not be waived to establish eligibility for section 245A(b)(1)
adjustment of status); 8 C.F.R. § 245a.3(g)(3) (same). 5
C. Relief from Removal
The respondent bears the burden of proof to establish his eligibility for a
waiver of inadmissibility under former section 212(c) of the Act. See
section 240(c)(4)(A) of the Act. It is well established that only aliens who
have been lawfully admitted for permanent residence are entitled to section
212(c) relief. See Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1313−17
(11th Cir. 2006) (holding that an alien whose status was adjusted by
mistake was not eligible for section 212(c) relief because he did not
5

We note that 8 C.F.R. § 245a.3(g)(3)(iii) provides that inadmissibility for a controlled
substance violation under former section 212(a)(23) of the Act cannot be waived unless it
was for a single offense of simple possession of 30 grams or less of marijuana. That
ground of inadmissibility is currently at section 212(a)(2)(A)(i)(II) of the Act.

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“lawfully” acquire permanent resident status); see also, e.g., De La Rosa
v. U.S. Dep’t of Homeland Sec., 489 F.3d 551, 553, 555 (2d Cir. 2007)
(holding that section 212(c) relief was properly denied because “an alien is
only ‘lawfully admitted for permanent residence’ for purposes of the [Act]
if his or her adjustment to lawful permanent resident complied with
substantive legal requirements”); Arellano-Garcia v. Gonzales, 429 F.3d
1183, 1187 (8th Cir. 2005) (holding that an alien whose adjustment was
unlawful was not “lawfully admitted for permanent residence” for purposes
of section 212(c) eligibility); Monet v. INS, 791 F.2d 752, 753−55 (9th Cir.
1986) (holding that the alien was ineligible for section 212(c) relief because
he concealed a drug conviction when he adjusted his status and therefore
was not lawfully admitted); Matter of Abdelghany, 26 I&N Dec. 254, 259
n.8 (BIA 2014) (noting that section 212(c) relief is unavailable to aliens
who “obtained lawful permanent resident status by fraud or who otherwise
lacked entitlement to it”); cf. Matter of Koloamatangi, 23 I&N Dec. 548,
551 (BIA 2003) (holding that an alien was ineligible for cancellation of
removal for lawful permanent residents because he was “deemed, ab initio,
never to have obtained lawful permanent resident status once his original
ineligibility therefor [was] determined in [removal] proceedings”).
Because the respondent’s convictions rendered him inadmissible at the
time of his 1991 adjustment, he was not eligible to adjust his status.
Therefore, since the respondent was never “lawfully” accorded permanent
resident status, he is not eligible for a waiver of inadmissibility under
former section 212(c) of the Act. 6 Consequently, the Immigration Judge
properly denied his request for a waiver.

IV. CONCLUSION
The DHS established that the respondent is removable under section
237(a)(1)(A) of the Act because he was inadmissible under section
212(a)(2)(A)(i)(II) at the time of his section 245A(b)(1) adjustment of
status. Since the respondent was inadmissible when his status was adjusted
from that of temporary resident to permanent resident, he was never
lawfully admitted for permanent residence. He is therefore ineligible for a
waiver of inadmissibility under former section 212(c) of the Act.
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
6

We are unpersuaded by the respondent’s reliance on Matter of Cazares, 21 I&N Dec.
188 (BIA 1996, 1997; A.G. 1997), which related to the alien’s acquisition of the required
period of “domicile,” not the lawfulness of his admission for permanent residence.

725


Interim Decision #2800

MATTER OF LE'WISTON-QUEENSTON BRIDGE

In Fine Proceedings
BUF 10/50.39
Decided by Board June 24, 1980

(1) Section 271(a) of the Immigration and Nationality Act, 8 U.S.C. 1321(a), must be
strictly construed because of its quasi-penal nature.
(2) The terms "landing" and "entry" are words of art and are not synonymous..
(3) An alien effects an "entry" only when physical presence in the United States is
coupled with freedom from actual or constructive official restraint.
(4) The term landing" encompasses a broader concept than that of "entry" and is
ordinarily complete the moment physical presence occurs.
(5) When an individual comes to the United States by way of an international bridge, he
has "landed" when he touches United States soil and if this landing is at a port of
entry designated by the Attorney General, at a time and place designated by the
Service, and the person submits to the inspection,process, the bridge owner's responsibility under section 271(a) is satisfied.
(6) Fine proceedings ordered terminated where an alien crossed the Lewiston-Queenston Bridge, landed in Lewiston, New York, submitted to the inspection process, and
then (without departing from the United States) effected an illegal "entry" after heing
denied lawful admission.
BASIS FOR FINE: Act of 1952—Section 271(a) [8 U.S.C. 1321(a)]
ON BEHALF OF CARRIER:.
George A. Orr, dr., Esquire
Orr, Brydges & Orr
426 Third Street
P.O. Box 248
Niagara Falls, New York 14302
3y

ON BEHALF OF SERVICE:
George W. Masterton
Appellate Trial Attorney

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

In a decision dated March 8, 1978, the District Director determined
that a fine of $1000 should be imposed under the provisions of section
271(a) of the Immigration and Nationality Act, 8 U.S.C. 1321(a),
against the Niagara Falls. Bridge Commission for its failure to prevent
the unauthorized landing of an alien in the United States. The District
410

Interim Decision #2800
Director declined to remit or mitigate the fine to any extent. The
Bridge Commission has appealed. The appeal will be sustained and the
fine proceedings terminated.
The Niagara Falls Bridge Commission is a "body corporate and

politic," which was created by a Joint Resolution of the Congress of the
United States in 1938. It owns and operates, among others, the Lewiston Queenston Bridge, an international bridge linking the Canadian
port of entry at Queenston, Ontario, with the United States Class A
port of entry at Lewiston, New York. The Commission leases space at
the United States end of the bridge to the United States government
for use as a customs and immigration facility, which is manned 24
hours a day.
The facts giving rise to the institution of fine proceedings are not in
dispute. On September 26, 1977, an alien crossed the Lewiston-Queenston Bridge by automobile from Canada and presented himself to a
United States immigration officer on duty at a primary inspection
booth_ He was referred to the secondary inspection area where he was
inspected by an immigration officer and ultimately denied admission.
After being given a "Notice of Refusal of Admission" (From I-160A),
the alien was directed to return to Canada. Rather than comply with
-

this instruction, however, the alien made a U turn so he was facing
-

away from Canada, rolled up his car's window, tore up the Form I160A as immigration officers watched, and without ever leaving the
United States illegally "entered" this country.'
A "Notice of Intention to Fine" (Form 1-79) was served on the Bridge
Commission in December 1977. It was alleged that the failure to
prevent the unauthorized entry of the respondent into the United
States in effect allowed him to land "at La] time or place other than as
designated by the immigration officers" and that liability for a fine,
therefore, arose under section 271(a) of the Att. The Commission filed
a written defense, submitting that it was not subject to a fine under the
provisions of section 271(a) because the term "landing" was not
synonymous with the term "entry." It was argued that the alien had in
fact "landed" at a time and place designated by immigration officers
when he submitted to inspection by Service officers at the authorized
port of entry. The District Director, however, rejected the Commission's argument and ordered a $1000 fine imposed. The Commission
appeals from this decision.
The relevant language of section 271(a), as regards liability for a fine
' The alien was apprehended that same day. The record indicates that he had been
undergoing psychiatric treatment in Canada and on receipt of this information, the
District Director authorized his voluntary departure to that country.

Interim Decision #2800
in this case, provides that:
It shall be the duty of .every person, including the owners ... of ... international
bridges ... providing a means for an alien to come to ... the United States ... to
prevent the landing of such alien in the United States at a port of entry other than as

designated by the Attorney General or at any time or place other than as designated
by the immigration officers.

The sole issue now before the Board involves interpretation of the
words "landing ... at any time or place other than as designated by the
immigration officers."
The Service submits that in the context of this section the term
"landing" must be equated with the term "entry" and that if any alien
enters the United States without inspection, after gaining access to the
United States over an international bridge, liability results to the
bridge owner. The Commission's attorney submits that the terms
"landing" and "entry" cannot be interchanged. He argues that once an
alien touches United States soil at a port of entry and reports for
inspection at an authorized time and place he has in fact "landed" in
compliance with requirements of section 271(a) and the bridge owner's
liability is thereafter discharged.
We initially note that the statutory provision under consideration
here must be strictly construed because of its quasi penal nature. S©e
United States v. J.H. Winchester & Co., 40 F.2d 472, 474 (2 Cir. 1930);
8
Matter of .1vI/V Signeborg, 9 I&N Dec. 6 (BIA 1960); Matter of
I&N Dec. 323 (BIA 1959). See also Osaka Shosen Kaisha Line v. United
States, 300 U.S. 98, 101 (1937). Even without such a requirement,
-

however, we could not accept the Service position that the term "landing" as used in section 271(a) is synonymous with the legal concept of
"entry!,

Both the terms "landing" and "entry" are words of art. An alien
effects an "entry" only when physical presence is coupled with freedom
from actual or constructive official restraint. See United States v.
Vasilatos, 209 F.2d 195,197 (3 Cir. 1954); Niven v. United States,169 F.
782 (9 Cir. 1909); Matter of Pierre, 14 I&N Dec. 467, 468-69 (BIA 1973)
and the eases cited therein. See also section 101(a)(13) of the Act. The

term "landing," however, was originally used in the predecessor legislation to section 271(a) to refer to those aliens coming to the United
States "by water." 2 A "landing" was complete "the moment the vessel
(was] left and the shore ... reached." Taylor v. United States, 207 U.S.
120,125 (1907). See also Matter of D—, supra, at 324 (BIA 1959). Thus,
the term "landing" has been viewed as a broader concept than that of

'See section 8 of the Immigration Act of March 3, 1891. See also section 18 of the Act of
March 3,1903; section 18 of the Act of February 20,1907; and, section 10 of the Act of
February 5, 1917.
Al 9

Interim Decision #2800
"entry."' Once physical presence occurs, the landing is ordinarily
complete.'
Accordingly, when an individual comes to this country by way of an
international bridge, he has "landed" when he touches United States
soil. If the individual lands at a port of entry designated by the
Attorney General, at a time and place designated by the Service, and
submits to the inspection process, we must conclude that the bridge
owner's responsibility under the specific language of section 271(a) is
satisfied. If the alien thereafter effects an illegal entry without having
departed from the United States, we cannot find liability for a fine to
arise under section 271(a).5 As this was the case here, the Commission's appeal will be sustained and the fine proceedings ordered
terminated. Compare Matter of Southern Pacific Railroad Bridge, 16
I&N Dec. 209 (BIA 1977) (where aliens landed at a time and place other
than as designated by the Service).
ORDERS The appeal is sustained and the fine proceedings
terminated.

All who enter this country by way of vessels, aircraft, transportation lines or
international bridges have of necessity "landed." The converse, however, need not be
true (i.e., not all who "land" may be allowed or able to effect an "entry"). For example, if
a person were to jump ship and reach shore, but immediately be taken into Service
custody, a "landing" would have occurred, but not an "entry."See Matter of Pierre, I&N
Dec. 467 (BIA 1973).
• The Act provides an exception to this general definition of "landing" for those

arriving by vessel or aircraft. Section 233(a), 8 U.S.C. 1222(a), provides in relevant part

Upon the arrival at a port of the United States of any vessel or aircraft bringing aliens
(including alien crewmen) the immigration officers may order a temporary removal of
such aliens for examination and inspection at a designated time and place, but such
temporary removal shall not be considered a landing, nor shall it relieve vessels or
aircraft, the transportation lines, or the masters, commanding officers, agents, owners, or consignees of the vessel or aircraft upon which such aliens are brought to any

port of the United States from any of tha obligations which, in case such aliens remain

on board, would, under the provisions of this Act bind such vessels or aircraft,
transportation lines, masters, commanding officers, agents, owners, or consignees.
Thus, cases involving persons arriving by water or air who are allowed to disembark for
the purpose of examination and inspection must be distinguished from cases involving
persons arriving by land. With the former category of persons, the "landing" occurs only
upon "entry." Therefore, if such persons enter illegally, the carrier will be liable for a
fine. See Matter of NorthwestAirlines Aircraft, "Plight Number4 ", 13 I&N Dec. 840 (BIA
Matter of Plane
"N-8224-II", 6 I&N Dec. 594 (BIA. 1955). No provision similar to that in section

1071); Matter of Piano 'WC -VD -004", 5 I&N Dec 482 (1:tiA 1955);

233(a), however, exists for persons arriving by land.
The alien is subject to criminal prosecution under section 275 of the Act, 8 U.S.C.
1325, a criminal provision tied specifically to "entry" rather than "landing."


MATTER OF

SS. LlONNE

In FINE Proceedings
I3AL-10/1.45-6
Decided by Board April 18, 1958
Fine—No liability under section 231(d) for failure to furnish manifest where
responsible parties had no knowledge of stowaway's presence on vesoel.
Fine liability under section 231(d) of the 1952 net is not incurred for failure
to furnish manifest for alien stowaway whose presence aboard vessel had
not been known to responsible parties until after stowaway's apprehension
in the United States.
Editor's Note: Matter of 55. Monte Monjuich, 5 I. & N. Dec. 801, overruled, in
part—with respect to liability for fine under section 231(d) of the 1952 act.
BASIS FOR FINE: Act of 1952—Section 231(d) (8
273(d) (8 U.S.C.1323).

1221) and Section

BEFORE TIIE BOARD

Discussion: The appeals in these cases are directed to two administrative penalties totaling $1,010 which have been ordered imposed on the vessel's master and/or the Hinkins Steamship Company, its agents. $1,000 of the penalty has been ordered imposed for
failure to detain the alien stowaway, A—C-----M , aboard the
vessel until he had been inspected by an immigration officer; and
$10 of the penalty has been ordered imposed for failure to deliver
a manifest as to him. The appeal will be dismissed as to the former
penalty and sustained as to the latter.
The facts of this case have been succinctly set forth in the
opinion of the District Director at Baltimore, Maryland, and need
not be repeated here in their entirety. Briefly, the stowaway was apprehended by local police officers and turned over to Service officials; he testified that he boarded this vessel at Vera Cruz, Mexico,
as a longshoreman engaged in loading the vessel and remained
aboard; that he hid in the number 3 cargo hold during the voyage
to Baltimore and subsisted by eating pineapples from the cargo
in the hold, and left his place of concealment three times late at
night to get water from a faucet on the main deck; and his testimony was verified in its substantial portions by an investigation
conducted aboard the vessel by Service officers at New York. The
19

evidence of record clearly overrides the master's claims that the
alien could not possibly have stowed away aboard his vessel.
We are satisfied from the evidence of record that the responsible
parties did not know of the stowaway's presence aboard the vessel
until after he had been apprehended ashore, but knowledge is not
an element essential to liability to fine under section 273(d) of the
Immigration and Nationality Act. This Board has consistently held
that a transportation company is liable for fine under this section
of law for failure to detain on board alien stowaways until they
have been inspected by immigration officers, and that, such fine liability exists even though the line had no knowledge of the stowaway
being aboard the ship until the discovery of the stowaway in the
United States. We so hold here. Also, there is no provision for
mitigation of the penalty under this section of the law. Therefore,
the $1,000 portion of the penalty ordered imposed here must be
permitted to stand.
However, it is our considered opinion that liability to fine under
section 231(d) of the Immigration and Nationality Act for failure
to deliver to immigration officers at the port of arrival a manifest
containing the stowaway's name presupposes knowledge of the stow

away's presence aboard the vessel. We so hold and, therefore, it follows that the $10 portion of the penalty has been improperly imposed in this instance. Therefore, that portion of the fine will be
remitted.
Order : It is ordered that the appeal be sustained as to the
penalty ordered imposed under section 231(d) of the Immigration
and Nationality Act and that said $10 fine be remitted, and that
the appeal be dismissed as to the penalty ordered imposed under
section 273(d) of the Immigration and Nationality Act. The penalty
permitted to stand in this ease will be $1,000.

20


Interim vecision FZZOZS

MATTER OF KIM
In Visa Petition Proceedings
A-20691115
Decided by Board January 21, 1974
(1) Tinder the law of Korea, a child of a concubine is illegitimate. An illegitimate

child may be legitimated by recognition (accomplished by registration with the
Family Registrar in accordance with Article 859 of the Korean Civil Code),
combined with the marriage of the parents.
(2) Since beneficiary (born in Korea in 1915, the child of petitioner's father and
his concubine) was not legitimated until after he had reached the age of 18
years, he fails to qualify as a legitimated child under section 101(b)(1) of the
Immigration and Nationality Act, as amended, and, therefore, is ineligible for
preference status under section 203(a)(5) of the Act, as amended, as a
"brother" of the petitioner through the paternal relationship. Cf. Matter of
Van Pamelen, 12 L & N. Dec. 11 (1966).

The United States citizen petitioner applied for preference
status for the beneficiary as her brother under section 203(a)(5) of
the Immigration and Nationality Act. In a decision dated September 20, 1973, the District Director denied the petition on the
ground that the proper relationship was not established. The
petitioner has appealed from that denial. The appeal will be
dismissed.
The term "brother" is not defined in the Act. However, the term
"child" is defined in section 101(b)(1) to include:
(A) a legitimate child; or
(B) a stepchild, whether or not born out of wedlock, provided the child had
not reached the age of eighteen years at the time the marriage creating the

status of stepchild occurred; or
(C) a child legitimated under the law of the child's residence or domicile, or
under the law of the father's residence or domicile, whether in or outside the
United States, if such legitimation takes place before the child reaches the age

of eighteen years and the child is in the legal custody of the legitimating
parent or parents at the time of such legitimation; or
(D) an illegitimate child, by, through whom, or on whose behalf a status,
privilege, or benefit is sought by virtue of the relationship of the child to its
natural mother; or
(E) a child adopted....

The family register submitted in support of the petition establishes that the petitioner was born in 1919 and that her parents
561

Interim Decision grzzOo
were married in 1927. The beneficiary, who was born in 1915, was
the child of the petitioner's father and his concubine. In 1943,
following the death of the petitioner's mother, the petitioner's
father married the beneficiary's mother.
We have consulted a memorandum of foreign law from the Far
Eastern Law Division of the Library of Congress. According to
that memorandum, in Korea a child of a concubine is illegitimate.
An illegitimate child may be legitimated by recognition combined
with the marriage of the parents. Recognition is accomplished by
registration with the Family Registrar in accordance with Article
859 of the Korean Civil Code.
It appears that both the petitioner and the beneficiary are
legitimated children of their common father under Korean law.
However, the beneficiary was legitimated after he had reached the
age of 18 years; therefore, he never qualified as a legitimate or
legitimated child of his father as defined in section 101(bX1) of the
Immigration and Nationality Act. For immigration purposes, the
beneficiary is an illegitimate child of his father. An illegitimate
child cannot qualify for preference status as a "brother" through
the paternal relationship. CE Matter of Van Pamelen, 12 I. & N.
Dec. 11 (BIA1.966).
It is also clear that no steprelationship can be claimed through
the marriage of the petitioner's father to the beneficiary's mother,
since that marriage did not meet the requirement of section
101(bX1)(B).
The decision of the District Director was correct. The appeal will

be dismissed.
ORDER: The appeal is dismissed.

562


MATT= OF R—MIn EXCLUSION

Proceedings

A-10787236

Decided by Board January 24,1961
Excludability—Will be determined in accordance with law existing at time of
examination for admission.
(1) Determination of admissibility must take into account legislation enacted
between the date of au alien's parole Into tne United -states and the date
he is examined upon his application for admission.
(2) Amendment of July 14, 1960, to section 212(a) (23) of the Immigration
and Nationality Act intervening between date (June 10, 1960) alien is
paroled for completion of deferred inspection and date of hearing before
SIO (August 5, 1960) requires alien's exclusion based upon his conviction in
1959 for possession of marihuana.
Examono: Act of 1952—Section 212(a) (23) [S U.S.C. 1182(a) (23)J—Convicted
of unlawful possession of marihuana.
BEFORE THE BOARD

DISCUSSION: This case is before us on appeal from a decision
of a special inquiry officer excluding the appellant on the ground
stated above.
The appellant is a 19 year old unmarried male, native and citizen
-

-

of Mexico, who has resided in this country since about 1947. He
was lawfully admitted to the United States for permanent residence
on July 24, 1956. On June 10, 1960, he applied for readmission to
the United States following a short absence in Mexico but he was
not in possession of the necessary documentation, having lost his
alien registration receipt card. He was paroled under 8 U.S.C.
1182(d) (5) for cumpletion of deferred inspection. On August 5,
1960, he was excluded by a special inquiry officer because of his
conviction on November 10, 1959, for a violation of section 11530
of the California Health and Safety Codo (willful and unlawful

possession of marihuana). The sole issue is whether the appellant
is inadmissible to the United States.
Between July 18, 1956, and July 14, 1960, 8 U.S.C. 1182(a) (23)
provided for the exclusion of "Any alien who has been convicted of
a violation of * * any law or regulation relating to the illicit pos170

*." Section 8 of the Act
of July 14, 1960 [8 U.S.C. 1182(a) (23). Supp.; 74 Stat. 505]
amended "narcotic drugs" to read "narcotic drugs or marihuana."
We have carefully reviewed the entire record. Prior to the Act
of July 14, 1960, it had been held that marihuana was not a narcotic drug and that a conviction for the illicit possession. of marihuana was not within the purview of 8 U.S.C. 1182(a) (23). Boy
sebbion of or traffic in narcotic drugs *

v. lIiendoza Rivera, 267 F.2d 451 (C.A. 9, 1959). Under the amend-

of July 14, 1960, the appellant is clearly excludable and counsel apparently concedes that he would be inadmissible because of
the conviction in connection with any future application for admission to the United States but he contends that the appellant entered
the United States on June 10, 1960, and was not then excludable.
However, an alien who is merely paroled into the United States
does not make an "entry" within the meaning of the immigration
laws. Leng May Ma v. Barber, 357 U.S. 185 (1958). 8 U.S.C.
1182(d) (5) specifically provides that the parole of an alien shall
nut be regarded as an admission of the alien and that upon termination of parole the case shall continue to be dealt with in the same
manner as that of any other applicant for admission to the United
States. The remaining contentions of counsel are without merit and
do not require discussion.
Even where a statute is amended after judgment in a lower court,
the appellate court will decide the case in accordance with the terms
of the amended act. Carpenter N. 1Vabasle, Railway Co., 309 U.S.
23, 27 (1940) ; Dinsmore v. Sauth,ern. Express Co., 183 U.S. 115,
120 (1901). Subsequent legislation has also been taken into consideration in disposing of immigration cases. United States ex rel.
Wiezynski v. Shaughnessy, 185 F.2d 347 (C.A. 2, 1950) ; United
States ex rel. Pizzuto v. Shaughnessy, 184 F.2d 666 (C.A. 2, 1950).
The Attorney General's decision of January 3, 1961, in Matter of
K—, A-6723213, J-143, is also apposite. That case, of course, did
not involve a change of law but rather the occurrence of a conviction
subsequent to the application for admission to the United States.
ment

However, this distinction is not important and we regard Matter of
K—, supra, as controlling and requiring the dismissal of the appeal.

ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

171


Interim Decision #1955

MATTER or 11F.I.MARES-CARRILLO

In Exclusion Proceedings
A-17881461
Decided by Board March 12, 1969
(1) Since the language of the Department of Labor guideline for issuance
of a certification under section 212(a) (14) of the Immigration and Nationality Act, .as amended, as a machinist, is flexible so as to permit a greater
or lesser period of training, substantial compliance with the requirement
is sufficient. Hence, appellant, who has had 3 years and 9 months training and experience as a machinist, satisfies the guideline of the Department of Labor that 4 years training is "generally necessary" for certification as a machinist.
(2) A special inquiry officer has authority in exclusion proceedings to
determine whether the representation upon which a Department of Labor
certification was based was correct.
Excuunturm Act of 1952—Section 212(a) (14) [8 U.S.C. 1182(a) (14)]—No
valid labor certification.
Section 212(a) (19) [8 U.S.C. 1182(a) (19)] Obtained visa by fraud or willful znisrepresentaton of a material fact.
ON BEHALF OF SERVICE: William E. Weinert
Trial. Attorney
(Brief filed)

The case comes forward on appeal from the decision of the special inquiry officer dated October 4, 1968 finding the charges
stated above not to be sustained, and ordering that the applicant
be admitted as a special immigrant.
The record relates to a native and citizen of Mexico, 25 years
old, single, male, who applied at the port of El Paso, Texas on
September 25, 1966 for admission as a special immigrant. He presented an unexpired immigrant visa and a valid Mexican passport.
The applicant was questioned under oath by an immigrant
officer on September 25, 1968 (Ex. 3). The special inquiry officer

has fully set forth the contents of this sworn statement as well as

195

Interim Decision #1955
the testimony of the applicant and no point would be served by a
repetition of the details. Briefly, the applicant admitted that one
of his letters as to his employment or experience from Vaciados
Industriales was not true and correct. He testified that he began
working for that company in October 1964 as distinguished from
the information in the letter that he began working for that company in February 1963. He explained that the letter was written
for him as a favor to show that he worked for this employer for
a period of three years, because he had learned from some co-employees about the requirement for five years experience as a machinist. The applicant actually worked for Vaciados Industriales
as a machinist from October 1964 until May 1966. He then
worked for Oristalcria S.A., from June 1966 until May 1967, also
as a machinist. He worked for his father as a carpenter from
June 1967 until around March 1968. The applicant resumed workinz for Vaciados Industriales in June 1968 until September 1968
when he terminated his employment upon receiving the immigrant visa in order to come to the United States. He testified that
he had eleven months' training as a machinist in the Central Juvenil de Seguridad Social in Monterrey, Nuevo Leon, Mexico, and
graduated as a machinist on October 23, 1964, presenting a certificate which he had received from this school (Ex. 4). He
testified that during the eleven months he attended the school
from about 6:00 P.M. to 9:00 P.M. daily and received training as
a machinist.
The actual periods of employment from October 1964 until September 1968 amounted to two years and ten months, not counting
the interruption in employment during the time he worked as a
carpenter for his father. In addition, he had eleven months of
training in machine shop work which he completed on October
23, 1964. Thus, counting the school work and the periods in the
two machine shops, the applicant had a total of about three years
and nine months training as a machinist according to the evidence he presented, which has not been controverted.
The applicant submitted to the American Consulate at Monterrey on March 19, 1968 Form ES-575A, Application for Employment Certification, as a Lathe Mechanic. This application was
supported by letters from his two employers for the dates specified
as described previously_ He testified that he also submitted a certificate froth the school which was returned to him by the consul.
A Labor certification was issued to the applicant on Form
ES-575A on May 9, 1968 certifying him as a tunnel lathe operator.

196

Interim Decision #1955
The Labor Department's regulation, 29 CFR Part 60, Schedule
C, describes the qualification of a machinist with the parenthetical notation that four year training is "generally necessary" for
satisfactory work performance in this field. The regulation of the
Labor Department, 29 CFR 60.5 provides that a certification
which is issued under that Part is invalid if the representations
upon which it is based are incorrect. The special inquiry officer
concluded that in the course of an exclusion hearing he had the
authority to determine whether the representation upon which
the Labor Department's certificate was based was correct or was
incorrect, and it was not necessary to refer to the Labor Department on this matter. He likened the case to that of a determination by a special inquiry officer during an exclusion or a deportation hearing, as to the materiality of a misrepresentation which
was made .to an American Consul in the application for an immigrant visa, and where the consul's statement as to whether he regards the misrepresentation as material is not controlling on the
special inquiry offieer. 1
The applicant actually possessed three years and nine months'
training and experience as a machinist. The Labor Department's
regulation, 29 CFR Part 60, Schedule C, provides that four years'
training is generally necessary to qualify an individual as a machinist. The Labor Department's suggestion that four years'
training is generally necessary is only a guideline. The language
used is not inflexible so that a lesser or greater period can be accepted. Substantial compliance with the requirement may be sufficient. The applicant actually has had a sufficient period of training to comply substantially with the definition for machinist and
Schedule C of the Labor Department's' regulations. The Labor
certificate is not invalid under 29 CFR 60.5. We agree with the
special inquiry officer that the applicant is not excludable under
section 212(a) (14) of the Immigration and Nationality Act for
lack of a valid Labor certification.
As to the question of whether the applicant was excludable
under section 212(a) (19) of the Immigration and Nationality Act
by reason of having obtained an immigrant visa by fraud or by
willful misrepresentation of a material fact, the special inquiry
officer by applying the tests for materiality set out in Matter of S
— and B—C—, 9 I. & Dec. 436, fmind that the misrepresentation was not material. The Attorney General held in Matter of
S— and B—C--, that a misrepresentation made in connection
-

I Matter of M—, 4 I. & N. Dec. 532; Matter of B3
225; Matter of Martinez Lopez, 10 L & N. Dec. 409, 410.

—

-

197

, 7 I. &

N. Dec. 222,

Interim Decision # 1955
with an application for a visa or other documents, or with entry
into the United States, is material if either (1) the alien is excludable on the true facts, or (2) the misrepresentation tends to
shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be excluded. The application of the test turns on the
answers to three questions. First, does the record establish that
the alien is excludable on the true facts? If it does, then the misrepresentation was material. Second, does the misrepresentation
tend to shut off a line of inquiry which is relevant to the alien's
eligibility? Third, if a relevant line of inquiry has been cut off,
might that inquiry have resulted in a proper determination that
the alien be excluded?
The applicant is not excludable on the true facts, on the basis
of his training as a machinist. Using the second step of the test,
his misrepresentation did tend to shut off a line of inquiry relevant to his eligibility—the actual number of years of training he
had. However, applying the third step of the test, the applicant
would have been able to demonstrate that he had sufficient training as a machinist to qualify for a Labor certificate. The period
of three years and nine months is sufficient compliance with the
regulations of the Labor Department. The applicant is not excludable under section 212(a) (19) of the Act.
The trial attorney has filed a brief taking issue with the findings of the special inquiry officer. Breaking down the figures supplied by the applicant, the trial attorney concludes that the
applicant has 83 per cent of training and experience generally
considered necessary by the Department of Labor for a machinist. However, in view of the language of the regulation relating
to a machinist that four years' training is generally necessary, it
is apparent from the language used that this requirement is simply a guideline and that the training of the applicant sufficiently
and substantially complied with the regulations of the Labor Department. As to the other objection raised by the trial attorney,
we believe the special inquiry officer correctly applied the standard set forth in Matter of 5— and B—C—, 9 I. & N. Dec. 436.
The appeal of the trial attorney will be dismissed.
ORDER: It is ordered that the appeal of the trial attorney be
dismissed and that the order of the special inquiry officer admitting the applicant as a special immigrant be and the same is
hereby approved.

198


Cite as 26 I&N Dec. 765 (BIA 2016)

Interim Decision #3865

Matter of Antonio GOMEZ-BELTRAN, Respondent
Decided June 27, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien cannot establish good moral character under section 101(f)(6) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(f)(6) (2012), if, during the period for
which it is required, he or she gives false testimony under oath in proceedings before an
Immigration Judge with the subjective intent of obtaining immigration benefits.
FOR RESPONDENT: Marina N. Alexandrovich, Esquire, Tempe, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Attorney

Brent Landis, Senior

BEFORE: Board Panel: MALPHRUS and CREPPY, Board Members; GELLER,
Temporary Board Member.
MALPHRUS, Board Member:

In a decision dated October 3, 2012, an Immigration Judge found the
respondent removable on his own admissions under section 212(a)(6)(A)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012),
as an alien who is present in the United States without being admitted or
paroled, and denied his applications for cancellation of removal under
section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012), and
voluntary departure. The respondent has appealed from that decision and
has filed a motion to reopen and remand. The Department of Homeland
Security (“DHS”) opposes both the respondent’s appeal and his motion.
The appeal will be dismissed, and the motion will be denied. 1

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who last entered the
United States on January 1, 2007. On his application for cancellation of
removal, the respondent claimed that he had only one conviction, which
1

Subsequent to filing a brief on appeal, the respondent’s attorney moved to withdraw as
counsel of record. Because no adequate basis has been shown to permit withdrawal of
counsel at this late stage of the appeal, the motion is denied.

765

Cite as 26 I&N Dec. 765 (BIA 2016)

Interim Decision #3865

was on January 9, 2009, for driving under the influence. However, when
he testified before the Immigration Judge, the respondent at first stated that
he had never been convicted of any criminal offense.
He only
acknowledged the conviction after being reminded by counsel that it was
listed on his application. The respondent’s attorney then asked if he had
“any other arrests or convictions anywhere in the world,” to which the
respondent clearly answered, “No, sir.”
On cross-examination, the respondent initially reaffirmed his claim that
he had no other arrests or convictions. After he repeatedly denied any
further criminal activity, the DHS confronted him with a series of specific
dates and offenses that the respondent had not disclosed on his application. 2
Even after the DHS questioned the respondent about the first of these
offenses, he did not correct his prior misrepresentation or voluntarily reveal
the extent of his criminal history, waiting instead until the DHS asked him
about each incident. The respondent eventually admitted five additional
arrests or convictions that were not included in his application and were not
disclosed during the hearing until the DHS confronted him with each one.
The Immigration Judge found that the respondent gave false testimony
regarding his criminal history at the hearing and determined that he was not
credible. Based on the respondent’s false testimony, the Immigration Judge
concluded that he lacked good moral character under section 101(f)(6) of
the Act, 8 U.S.C. § 1101(f)(6) (2012), and was statutorily ineligible for
cancellation of removal and voluntary departure. The Immigration Judge
also denied his applications for relief in the exercise of discretion. 3

II. ANALYSIS
A. Good Moral Character
The respondent has the burden of establishing that he meets all
applicable eligibility requirements for cancellation of removal and that he
merits a grant of relief in the exercise of discretion. See section 240(c)(4)
of the Act, 8 U.S.C. § 1229a(c)(4) (2012); 8 C.F.R. § 1240.8(d) (2016). To
qualify for cancellation of removal under section 240A(b)(1) of the Act, the
respondent must establish, among other things, that he has been a person of
2

We note that the question on the cancellation application regarding the applicant’s
criminal history is broadly worded to require full disclosure of all arrests and convictions.
3
We review the Immigration Judge’s findings of fact, including those relating to
credibility, to determine if they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i) (2016).
We review de novo all questions of law, discretion, and judgment. 8 C.F.R.
§ 1003.1(d)(3)(ii).

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Interim Decision #3865

good moral character for at least 10 years immediately preceding the date
of his application. 4 Section 240A(b)(1)(B) of the Act.
Section 101(f)(6) of the Act provides that no person can establish good
moral character if, during the period for which it is required, he or she “has
given false testimony for the purpose of obtaining any benefits” under the
Act. The term “testimony” in section 101(f)(6) is limited to oral statements
made under oath. Matter of L-D-E-, 8 I&N Dec. 399, 402 (BIA 1959)
(holding that false statements in an application do not constitute testimony).
The Supreme Court has determined that the statutory bar applies to any oral
statements made under oath by a person who has a subjective intent to
obtain immigration benefits, regardless of whether the misrepresentation is
material. Kungys v. United States, 485 U.S. 759, 780 (1988) (stating that
section 101(f)(6) “denominates a person to be of bad moral character on
account of having given false testimony if he has told even the most
immaterial of lies with the subjective intent of obtaining immigration or
naturalization benefits”).
Immigration court proceedings are adversarial in nature and are
governed by formal rules of procedure, which include requiring the
Immigration Judge to take witness testimony under oath at transcribed
4

The respondent’s false testimony occurred during the period in which he was required
to establish good moral character. In Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA
2005), we held that an application for cancellation of removal under section 240A(b)(1)
of the Act is a continuing application for purposes of evaluating whether an applicant has
established the required 10-year period of good moral character. In this case, the
respondent provided false testimony before the Immigration Judge in June 2012, 2 years
after his application was filed in May 2010, and 4 years prior to our current resolution of
the matter.
In Castillo-Cruz v. Holder, 581 F.3d 1154, 1162 (9th Cir. 2009), the United States
Court of Appeals for the Ninth Circuit, the jurisdiction in which this case arises, cited
Matter of Ortega-Cabrera and applied our approach to determining the period of good
moral character for section 240A(b)(1) cancellation of removal. Moreover, other circuit
courts have expressly deferred to our interpretation under Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Rodriguez-Avalos
v. Holder, 788 F.3d 444, 452−55 (5th Cir. 2015); Duron-Ortiz v. Holder, 698 F.3d 523,
526−28 (7th Cir. 2012).
In Aragon-Salazar v. Holder, 769 F.3d 699, 706 n.4 (9th Cir. 2014), the Ninth Circuit
held that an application for special rule cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”), Pub. L. No. 105–100, 111
Stat. 2160, 2193 (1997), is not a continuing one for purposes of evaluating good moral
character and that the required period of good moral character refers only to the 7 years
immediately preceding the filing of the application. The court declined to follow
Castillo-Cruz, finding that it arose “in a different context.” Id. We conclude that
Castillo-Cruz continues to be controlling in the context of applications for cancellation of
removal under section 240A(b)(1) of the Act.

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Interim Decision #3865

hearings. Section 240(b)(1) of the Act; Jacinto v. INS, 208 F.3d 725,
732−33 (9th Cir. 2000); 8 C.F.R. §§ 1240.7(b), 1240.9 (2016). False
statements made under oath during proceedings before an Immigration
Judge may constitute false testimony within the meaning of section
101(f)(6) of the Act. See Phinpathya v. INS, 673 F.2d 1013, 1018−19 (9th
Cir. 1981) (“Testimony means a statement made by a witness under oath
for the purpose of establishing proof of a fact to a court or tribunal.”), rev’d
on other grounds, 464 U.S. 183 (1984); Matter of Barcenas, 19 I&N Dec.
609, 612 (BIA 1988) (finding that an alien’s false statements at a
deportation hearing rendered him ineligible for voluntary departure); cf.
Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir. 2001) (holding that false
statements made in an asylum examination are “false testimony”); Bernal
v. INS, 154 F.3d 1020, 1023 (9th Cir. 1998) (holding that false statements
made under oath in a naturalization interview are “false testimony”).
Truthful testimony and disclosures are critical to the effective operation
of the immigration court system. In the asylum context, courts have noted
that the process depends on the alien’s fundamental obligation to tell the
truth. Martinez v. Holder, 557 F.3d 1059, 1065 (9th Cir. 2009) (stating that
the “asylum process is ultimately an honor system” and that the major
check on the system is not the “[Immigration Judge’s] scrutiny or the
government’s fact checkers,” but is, instead, “the asylum seeker’s belief
that he or she will be held to that oath”); Diallo v. Gonzales, 447 F.3d 1274,
1280 (10th Cir. 2006) (“Asylum seekers must be held accountable for the
veracity of statements that they swear to under oath.”). The same principle
applies to applications for cancellation of removal.
In this case, the respondent testified that he had only been convicted of a
single offense in 2009, denied any further incidents, and then admitted five
additional arrests or convictions when confronted with each one by the
DHS during cross-examination. He claims that his testimony was not
untruthful because he honestly answered questions regarding specific
offenses and dates and that it only appeared inconsistent when he was asked
“vague, open-ended questions.” 5
We do not agree. The questions regarding criminal history on the
cancellation of removal application and at the hearing were not vague; they
were simple and direct. The respondent was asked about his criminal
history several times during the hearing and was given ample opportunity
to disclose all his arrests and convictions before he was confronted by the
5

The respondent may have been confused by the use of the term “departure” during a
line of questioning concerning his entries and departures. However, in finding that the
respondent gave false testimony, the Immigration Judge did not appear to rely on this
possible inconsistency, and we have not considered it in reviewing his decision.

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Interim Decision #3865

DHS. There is no indication that he did not understand the questions. 6 Cf.
United States v. Hovsepian, 422 F.3d 883, 887–88 (9th Cir. 2005) (en banc)
(finding no subjective intent to deceive under section 101(f)(6) of the Act
where inaccuracies resulted from poor memory, mistake, or vague
questioning).
Nor was the interpretation of the proceedings in any way faulty. The
respondent made no objection regarding the interpreter at the hearing, and
he has made no showing on appeal that the interpreter did not perform
competently. See Matter of D-R-, 25 I&N Dec. 445, 461−62 (BIA 2011);
Matter of Exilus, 18 I&N Dec. 276, 280−81 (BIA 1982). The respondent
claims that the interpreter mistakenly interpreted his date of birth as May 5,
instead of May 14, but there is no indication that this discrepancy had any
impact on his case. Furthermore, we find no merit to the respondent’s
suggestion that the DHS may have questioned him about another person’s
criminal record as a result of the incorrect birth date, because the
respondent admitted each arrest or conviction referred to by the DHS. The
remaining interpretation errors the respondent has identified were minor
and unrelated to his false testimony. See Matter of D-R-, 25 I&N Dec. at
461−62.
Although the respondent eventually answered questions truthfully when
confronted with his criminal records, this does not undermine the fact that
he made false statements when initially asked about his arrests and
convictions. He did not fully and voluntarily disclose his criminal history
and only admitted each arrest or conviction when specifically confronted
with it by the DHS. See Ramos, 246 F.3d at 1266 (stating that the
petitioner’s admission to lying did not preclude a finding that she lacked
good moral character because “her later honesty . . . does not remove
her from the ambit of the statute”). Therefore, the respondent did not
voluntarily make a timely recantation of his false testimony.
Valadez-Munoz v. Holder, 623 F.3d 1304, 1310 (9th Cir. 2010) (stating that
“when a person supposedly recants only when confronted with evidence of
his prevarication, the amelioration [for recantation] is not available”);
Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973).
When asked why he did not fully disclose his criminal activities, the
respondent stated only that he “did not know.” The Immigration Judge did
not err in rejecting this response as unpersuasive. The respondent’s
6

The respondent was represented by counsel throughout the proceedings, and there
were no indicia of incompetency. See Matter of M-A-M-, 25 I&N Dec. 474, 477 (BIA
2011) (stating that “an alien is presumed to be competent” and that “absent indicia of
mental incompetency, an Immigration Judge is under no obligation to analyze an alien’s
competency”).

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Interim Decision #3865

explanation raises a strong inference that he made false statements with the
subjective intent to prevent the Immigration Judge from considering his
criminal record in determining whether he is statutorily eligible for
cancellation of removal and warrants such relief as a matter of discretion.
See Akwasi Agyei v. Holder, 729 F.3d 6, 16 (1st Cir. 2013) (holding that the
petitioner’s false testimony about his sham marriage warranted a finding
that he lacked good moral character because his unexplained “fear” of
telling the truth raised the “strong inference” that he was “afraid” he
would be denied adjustment of status, which “is indistinguishable from a
subjective intent to obtain immigration benefits via fraud”).
In determining whether the evidence is sufficient to establish that an
applicant gave false testimony within the meaning of section 101(f)(6) of
the Act, the trier of fact must conduct a case-by-case assessment. See
Hovsepian, 422 F.3d at 887 (“Whether a person has the subjective intent to
deceive in order to obtain immigration benefits is a question of fact.”); see
also Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Drawing
inferences from direct and circumstantial evidence is a routine and
necessary task of any factfinder. . . . In the immigration context, the
[Immigration Judge] is the factfinder to whom this indispensable work is
delegated.”); accord Matter of D-R-, 25 I&N Dec. at 454. While not every
misrepresentation or omission will be sufficient to constitute false
testimony under section 101(f)(6) of the Act, this is not a close case. See
generally Kungys, 485 U.S. at 781 (stating that the good moral character
bar does not apply to mere “concealments”).
We agree with the Immigration Judge that the respondent actively
sought to mislead the court regarding the extent of his criminal history
when he only admitted his 2009 conviction and denied any others in
responding to clear questions that called for full disclosure. Consequently,
the Immigration Judge did not clearly err in finding that the respondent
made false statements under oath with a “subjective intent to deceive” for
the purpose of influencing the Immigration Judge’s decision regarding his
applications for relief from removal. Id. at 780−81. We therefore conclude
that the Immigration Judge properly held that the respondent is precluded
from establishing good moral character under section 101(f)(6) of the Act
and that he is statutorily ineligible for cancellation of removal under section
240A(b)(1)(B) of the Act and for voluntary departure. 7
7

Since the respondent has not established good moral character, we need not address
the Immigration Judge’s determination that he did not meet his burden to prove the
requisite hardship under section 240A(b)(1)(D) of the Act. See INS v. Bagamasbad, 429
U.S. 24, 25 (1976) (stating that “courts and agencies are not required to make findings on
issues the decision of which is unnecessary to the results they reach”).

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Interim Decision #3865

Moreover, we agree with the Immigration Judge that the respondent
does not merit a favorable exercise of discretion on his applications for
relief from removal. See section 240(c)(4)(A)(ii) of the Act. Based on our
de novo review of the record, we conclude that the respondent’s equities,
which include his long residence and family ties in the United States, are
outweighed by his significant criminal history and his untruthfulness during
the hearing. See Aragon-Salazar v. Holder, 769 F.3d 699, 706−07 (9th Cir.
2014) (stating that the Immigration Judge can consider an applicant’s lack
of truthfulness during the hearing as part of the discretionary determination
on an application for relief).
Accordingly, we conclude that the
Immigration Judge properly denied the respondent’s applications for
cancellation of removal and voluntary departure, and we will dismiss his
appeal.
B. Motion To Remand
The respondent’s motion was filed during the pendency of his appeal, so
it is considered to be a motion to remand. 8 C.F.R. § 1003.2(c)(4) (2016);
see also Matter of L-V-K-, 22 I&N Dec. 976, 978−80 (BIA 1999)
(discussing differences between a motion to reopen and a motion to remand
in the context of an appeal). We conclude that the respondent has not
demonstrated that a remand is warranted based on his newly submitted
evidence and allegations of ineffective assistance of counsel. See Matter of
Coelho, 20 I&N Dec. 464 (BIA 1992); see also Matter of Rajah, 25 I&N
Dec. 127, 138 (BIA 2009) (stating that the requirements for a motion to
remand are essentially the same as those for a motion to reopen).
First, the respondent has not substantially complied with the procedural
requirements of Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988),
aff’d, 857 F.2d 10 (1st Cir. 1988). See Reyes v. Ashcroft, 358 F.3d 592,
597−99 (9th Cir. 2004). Nor has he presented a “clear and obvious case of
ineffective assistance of counsel,” as provided under Ninth Circuit law.
Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000) (“Lozada is
intended to ensure both that an adequate factual basis exists in the record
for an ineffectiveness complaint and that the complaint is a legitimate and
substantial one.”). However, even if there had been substantial compliance,
the respondent has not shown that his first attorney’s performance was
deficient. See Matter of B-B-, 22 I&N Dec. 309, 310−11 (BIA 1998).
Contrary to the respondent’s assertions, prior counsel was aware that the
respondent is the beneficiary of an approved visa petition. But since his
priority date was not current and no visa was immediately available to him,
the respondent was not eligible to adjust his status. Furthermore,
administrative closure would not have been warranted because of the
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Interim Decision #3865

remote availability of a visa and the speculative nature of the respondent’s
ability to adjust his status, particularly in light of his false testimony and
criminal history. See Matter of Avetisyan, 25 I&N Dec. 688, 696 (BIA
2012).
In addition, we reject the respondent’s assertion that his prior counsel
was ineffective because he did not discover or disclose the respondent’s
complete criminal history. The respondent admitted that he misrepresented
his criminal history to his first attorney, who stated that the respondent had
only informed him of the 2009 offense. The responsibility for the
respondent’s false testimony, and its consequences, therefore rests on his
own shoulders.
We find no merit to the other arguments the respondent raised in his
motion regarding his ineffective assistance claim. Therefore, because the
respondent has not established that prior counsel’s performance was
deficient or that it adversely affected the outcome of the proceedings, we
find no basis for remanding. See Lianhua Jiang v. Holder, 754 F.3d 733,
741 (9th Cir. 2014) (finding no denial of due process where the alleged
violation did not affect the outcome of the proceedings); Maravilla
Maravilla v. Ashcroft, 381 F.3d 855, 857−58 (9th Cir. 2004) (per curiam)
(stating that prejudice must be shown to prevail on a due process claim
based on ineffective assistance of counsel).
Finally, although the respondent claims that he is now eligible for
additional relief from removal, he has neither submitted an application nor
established prima facie eligibility for any such relief. INS v. Doherty, 502
U.S. 314, 323 (1992) (stating that a motion to reopen is properly denied
when a prima facie case for the relief sought has not been established);
Matter of Coelho, 20 I&N Dec. 464. Accordingly, the respondent’s motion
will be denied.
ORDER: The appeal is dismissed.
FURTHER ORDER: The motion to remand is denied.

772


Interim Decision #1906

MATTER OF TAGAWA
In Visa Petition Proceedings
' A-14557682
Decided by District Director August 11, 1967
Beneficiary, a person of exceptional ability in the art of puppetry, is eligible
for preference status under section 208 (a) (3) of the Immigration and Nationality Act, as amended.
Ow Mauls, OP Pawnor= s Norman Stiller, Esquire
995 Market Street
San Francisco, California 94103

The petition seeks to classify the beneficiary as a preference
immigrant under section 203 (a) (3) of the Immigration and Nationality Act, as amended, based upon her exceptional ability as a
puppeteer.
The beneficiary is a citizen of Japan, born March 12, 1925 in
Pyongang, Korea. She performed with the Takeda San-Nosuke
Troupe, Tokyo, Japan, from April 1959 to August 1962, and with
Philippe Genty, Director fo the Expedition Alexandre, from August 1962 to February 1965.
Section 203 (a) (3) of the Act, as amended, provides for the

availability of visas to qualified immigrants who are members of
the professions, or who because of their exceptional ability in the
sciences or the arts, will substantially benefit prospectively the
national economy, cultural interests or welfare of the United
States.
As will be noted, eligibility for preference classification under
section 203 (a) (3) is divided into two categories, those aliens who
are members of the professions and those aliens who possess exceptional ability in the sciences or the arts. Section 101 (a) (32) of
the Act, as amended, defines the term "profession." However, no

definition of the terms "arts" or "sciences" is contained within
the Act. The term "profession" is defined as including, but not
being limited to architects, engineers, lawyers, physicians, surgeons and teachers in elementary or secondary schools, colleges,

13

Interim Decision #1906
academies or seminaries. It should be noted that each of the occupations listed bears two common characteristics. Recognition of
professional status in those fields is generally achieved through
high education or the equivalent in specialized experience, and the
attainment of a specified type of degree or diploma which is
usually the minimum requirement for entry into those occupations. (Matter of Asuncion, ii. I. & N. Dec. 660).
Art always relates to something to be done, science to something to be known. Not only must art be distinguished from science, but art in the industiral or mechanical sense, must be
distinguished from art in the esthetic sense; the former aims
chiefly at utility, the latter at beauty. The mechanic arts are the
province of the artisan; the esthetic or fine arts, the arts of
beauty, such as painting, sculpture, music and poetry, are the province of the artist. All the industrial arts, as of weaving or painting, arithmetic or navigation, are governed by exact rules. Art in
the highest sense, transcends all rule. Science does not, like mechanic arts, make production its direct aim, yet its possible productive application is a constant stimulus to scientific investigation. Creative art, seeking beauty for its own sake, is closely akin
to pure science, seeking knowledge for its own sake. (Funk and
Wagnalls, Standard Home Reference Dictionary).
Whereas an engineer, a lawyer, a physician, or a teacher, having attained his education, might reasonably be expected to successfully practice his profession, such is not the case in the arts.
In the arts, success or recornition comes to the individual solely
through his creative ability.
Thus, there have been set different evidentiary requirements to
establish an alien's exceptional ability in the sciences or the arts.
These requirements are set forth in Title 8, Code of Federal Regulations,
' Part 204.2(f), as follows: "if the alien's eligibility is
based on a claim of exceptional ability in the sciences or the arts,
documentary evidence supporting the claim must be submitted by
the petitioner. Such evidence may attest to the universal acclaim
and either the national or international recognition accorded to
the alien; that he has received a nationally or internationally recognized prize or award, or won a nationally or internationally
recognized competition for excellence for a specific product or
performance or for outstanding achievements; or that he is a
member of a national or international association of persons
which maintains standards of membership recognizing outstanding achievements, judged by recognized national or international
experts in a specific discipline or field of endeavor. An affidavit

14

Interim Decision #1906
attesting to an alien's exceptional ability in the sciences or the
arts, must set forth the name and address of the affiant, state
how he has acquired his knowledge or the alien's qualifications,
and must describe in detail the facts on which the affiant bases
his assessment of the alien's qualifications."
As previously indicated, the fine arts are -painting, sculpture,
music and poetry. These have in recent times, been extended to
include drawing, architecture, dancing and dramatic art. Webster's New International Dictionary, Second Edition, unabridged,
defines a puppet show as a "dramatic performance, usually grotesque or burlesque, carried on by means of puppets, often with
dialogue spoken by those moving the puppets." Thus, through
modern definition, it must be acknowledged that puppetry falls

within the fine arts.
The beneficiary was formally a member of the Takeda San-Nosuke Troupe of Tokyo, Japan. This troupe was so highly thought
of in Japan that the director of the troupe was honored as a living cultural asset, and was given the honorary title of "National
Treasure of Tokyo." Affidavits attesting to the beneficiary's exceptional ability have
been submitted by Melvin B. Helstien, Associate Professor of
Theatre Arts, University of California, Los Angeles; John U.
Zweers, Executive Secretary, Los Angeles County Guild of Puppetry; Archie Elliott, President, The Puppeteers of America; Lucille
M. Cole, President, The Chicagoland Puppetry Guild; Bil Baird,
Executive Director, American Puppet Arts Council; Marjorie B.
McPharlin, International Representative, The Puppeteers of
America; Richard G. Adams, Ph.D., Chairman, Theatre Arts Department, California Lutheran College; and Mollie Falkenstein,
Vice-President, Puppeteers of America. Miss Falkenstein rates
the beneficiary as, "one of the finest manipulators and creators of
puppets in the entire world."
The beneficiary was awarded the Los Angeles County Puppetry
Guild's International Award for her outstanding contribution to
the advancement of the art of puppetry for the year 1965- 66.
The evidence submitted establishes that the beneficiary is a
person of exceptional ability in the art of puppetry who will substantially benefit prospectively the cultural interests of the
United States.
ORDER: It is ordered that the petition to classify the status of
Michiko Tagawa as a preference Immigrant under section
203 (a) (3) of the Immigration and Nationality Act, as amended,
be and is hereby approved.
15


Interim Decision #2057

MATTER OF SINCLAIR

In Visa Petition Proceedings
A-18148204
Decided by Board September 30, 1970
Under the law of Panama, legitimation of beneficiary, who was born out of
wedlock in Panama in 1947, was accomplished by petitioner's acknowledgment of paternity of beneficiary by a declaration before the Mayor of
Colon.
ON BEHALF OF PETITIONER:
Pro se

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney

The petitioner appeals the decision of the District Director denying this visa petition filed to accord the beneficiary immediate
relative status as the child of a United States citizen. The District Director determined that the petitioner failed to establish
that the beneficiary is his legitimate child. We conclude that legitimacy has been established but the appeal must nevertheless be
dismissed for another reason.
The petitioner is a native of Panama who became a naturalized
citizen on August 5, 1963. The beneficiary, a native and citizen of
Panama, was born on December 14, 1947, in Colon, Panama, to
the petitioner and one Luisa Williams, whom the petitioner never
married. The beneficiary's birth certificate presented in support
of this petition lists the petitioner as the father. No mention is
made therein of the parents' marital status or the legitimacy of
the child.
On appeal petitioner asserts that his declaration in the birth
certificate before the Mayor of the City of Colon that the beneficiary was his son is sufficient to constitute legitimation. He
argues that according to the laws of Panama the beneficiary was,
at birth, legitimate.
Our careful consideration of this question persuades us that the
petitioner's argument has merit. In a memorandum furnished to
us by the Hispanic Law Division of the Library of Congress, the
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Interim Decision #2057
laws of Panama regarding legitimacy are discussed. Article 58 of
the Panamanian Constitution enacted on March 1, 1946, provides
as follows :
Parents have the same duties with respect to their children born out of
wedlock as they do toward children born in wedlock. All children are equal
before the law and have the same rights of inheritance in intestate succession.

It is clear that Article 58 abolished the old distinctions between
legitimacy and illegitimacy 1 by providing for the equal treatment
of all children, especially for purposes of intestate inheritance. 2
The beneficiary's birth certificate, which lists the petitioner as
the father and makes no reference to the marital status of the
carents, follows the mandate of Article 59 which provides:
Investigation of paternity shall be regulated by law. Any classification
)ased on the nature of filiation is abolished. No statement establishing distinctions as to the birth or as to the civil status of parents shall be entered
m the registration records or in any affidavit, baptismal record or certificate
•eferring to such filiation.

We have previously noted the law of Panama regarding legitimacy in an unreported decision involving a child who was born in
'anama in 1952 to a citizen of the United States, Matter of Mifuel Rodriguez-Sanchez, A-10197343 (BIA, March 11, 1958). The
ather claimed that his child was a United States citizen at birth.
n that case the child's parents never married. We noted an opinm of the Attorney General of Panama which discussed the
ianges wrought by the Constitution of 1946 regarding the abolion of the distinction between legitimate and illegitimate chilren. The Attorney General observed that at the moment the
atative father acknowledges his paterity before the civil
ithorities, his status of father of the child becomes legally deterined along with the obligations inherent in that status. We are
n-suaded that the petitioner's acknowledgment of the benefici•y's paternity by a declaration before the Mayor of Colon, fulled all the legal prerequisites.
The Civil Code of Panama of 1916, repealed by the Constitution of 1946,
ntained the following provisions respecting the legitimacy of children:
Article 164. Only natural - children may be legitimated.
Article 165. Legitimation is effected by the subsequent marriage of the
rents, and it shall be valid even if the marriage is declared void, provided
?re was good faith in contracting same..
It is clear that under the prior Act, the petitioner would have to establish
3.t he married the beneficiary's mother.
Article 62 of the Constitution provides:
All children are equal under the law, have the same intestate inheritance
•hts and the right to be acknowledged by their parents.
I

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Interim Decision #2057
By virtue of the provisions of Article 69, 3 the Constitution of
1946 applies to the beneficiary, who was born in 1947. We, therefore, conclude that the petitioner has discharged his burden of establishing that the beneficiary is his legitimate child.
Although legitimate, however, the beneficiary cannot qualify as
an immediate relative. He became twenty-one years of age on December 14, 1968, some 6 months before the visa petition was filed.
Section 101(b) (1) of the Act defines a "child" as "an unmarried
person under twenty-one years of age." The beneficiary could not
possibly meet this statutory prerequisite. The visa petition was
therefore properly denied. Under the circumstances, we have no
alternative but to dismiss the appeal.
ORDER: It is ordered that the appeal be and it is hereby dismissed.

8 Article 69 provides as follows:
Children born after March 2 [of 1946] shall remain ipso jure included in
the provisions of this organic law, in accordance with the provisions of Article 59 of the Constitution.

615