Interim Decision #1850

MATTER OF WEST

In Deportation Proceedings
A-14221237

Decided by Board March. 27, 1968
Respondent, an alien who entered the United States es a temporary visitor upon

presentation of a legally obtained visitor's visa, who was subsequently
granted section 245 adjustment of status which was rescinded on the ground of
ineligibility therefor because based on a marriage to a U.S. citizen which was
not valid, is, notwithstanding the requisite familial relationship, ineligible
for relief from deportation under section 241(f) of the Immigration and Nationality Act, as amended, since she is deportable solely on a remained longer
charge under section 211(a) (2) of the Act and the basis for deportability is
unrelated to excludability at entry for fraud or misrepresentation. MrrisoSagt v. Immigration and Naturalization Service, 885 U.S. 214 (1968),

distinguished.)
CHARGE:

Order: 'Act of 1952—Section 241(a) (2) [8 U.S.0 1251(a) (2)7—Remained
longer—visitor.
ON REMAIN of SEEVICE

ON BEHALF OF RESPONDENT:

Irving A. Applerolut
Appellate Trial Attorney
(Brief filed)

Robert S. Bixby, Esquire
559 Washington Street
San Francisco, Calif. 91111
(Brief filed)

Stephen M. Suflin
Trial Attorney
(Brief filed)

The Immigration Service appeals from a decision of the special
inquiry officer dated September 15, 1967 terminating the above-captioned. proceedings pursuant to the provisions of section 241(f) of the
Immigration and Nationality Aot (8 U S.C.1251(f) ). A brief in support of the special inquiry officer's decision has been submitted by
counsel for the respondent.
The respondent, a native and citizen of Korea, last entered. the

United States as a visitor at the port of Honolulu, Hawaii on June 14,
1964. She was granted an adjustment of her nonimmigrant status to
that of a permanent-resident alien under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) on March 1, 1965.
321-654-89-45

683

Interim Decision #1850
The adjustment of her status was based on a visa petition filed
in her behalf by her citizen husband. Thereafter, in rescission proceedings, the respondent stipulated that she was ineligible for adjustment
of status since her marriage to a citizen of the United States was not
bona fide and was entered into solely for the purpose of evading tht immigration laws. She denied, however, that her marriage -was fraudulent and refused to stipulate that she had obtained her adjustment of
status through fraud.
The respondent's marriage to Glenn Alan Nunley, her first husband,
was annulled on February 24, 1965. She married David West, another
United States citizen, on the same day and on November 5, 1965 a citizen child was born of this union. The child lives with the respondent
who is now separated from the child's father.
The respondent's permanent resident status was rescinded on December 1, 1966. She was granted until February 11, 1967 within which to
depart from the United States. She failed to depart and on. May 25,
1967 an order to show cause was issued charging that the respondent
was deportable under section 241(a) (2) of the Immigration and Nationality Act in that after admission as a nonimmigrant under section
101(a) (15) of the said Act, she has remained in the United States
for a longer time than permitted.
The respondent, during the deportation hearing, moved for a termination of the proceedings on the ground that she was saved from
deportation by section 241(f) of the Immigration and Nationality Act
(8 U.S.C. 1251 (f) ). The respondent contends that her case is governed
by Err ico-Scott v. immigration and Naturalization Service, 385 U.S.
214 (1966). The Errico-Scott ease involved two aliens who obtained a
preferred immigration status by fraud and misrepresentation. The
issue before the Supreme Court was whether section 241(f) of the Immigration and Nationality Act saves an alien from deportation who
misrepresents his status for the purpose of evading quota restrictions,
if he has the necessary familial relationship to a United States citizen
or a lawful permanent resident alien. The respondent now has the
relationship required by section 241(f), supra.'
The special inquiry officer concedes in his decision that an alien who
fraudulently has her status adjusted to that of a permanent resident
under section 245 does not fall literally within the terms of section
Section 241 (t) of the Act reads as follows : "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 as 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 *mouse, parent, or a child of a United States citizen
or of an alien lawfully admitted for permanent residence."

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Interim Decision #1850
241(f) because section 241(f) by its terms deals with aliens who are
"excludable because they procured visas by fraud." He reasons, however, that in Errico and Scott the Court said that section 241(f) cannot be applied with "strict literalness" and "even if there were some
doubt as to the correct construction of the statute, the doubt should be
resolved in favor of the alien." The special inquiry officer notes that if
the respondent had obtained a nonquota immigration visa on the basis
of a fraudulent marriage and then entered the United States, her case
would clearly fall within the ameliorating provisions of section 241
(f). The special inquiry officer also notes that in the case of Amarante
v. Rosenberg, 326 F. 2d 58, the court stated that when "an alien seeks
an adjustment of his status by the Attorney General under section 245,
the Attorney General performs the same functions as does a consular
officer when an alien is seeking to enter the country and applies for a
nouquota visa." The special inquiry officer concludes that, since the
situation of an alien who acquires permanent resident status by fraudulently- obtaining an immigration visa from a consul is so closely analogous to the alien who acquires permanent resident status under the
provisions of section 245, they should be treated alike insofar as section
241(f) is concerned.
Counsel in his brief supports the reasoning of the special inquiry officer in terminating the proceeding. The Service on the other hand maintains that when the respondent's status as a permanent resident
alien was rescinded, she reverted to a nonimmigrant illegally in the
United States because section 246 (a) so provides 2 and the sole basis
for her present deportability is as a nonimmigrant who remained longer which has nothing whatsoever to do with excludability for fraud.
The Service relies upon our ruling in Matter of Tsaoonas, lat. Dec. No.
1759, B.I.A., July 27, 1967, which rejected the applicability of section
241(f) where the order of deportation was not based on any charge
of fraud and misrepresentation but was simply predicated on the fact
that after admission as a nonimmigrant temporary visitor for pleasure,
the alien remained for a longer period of time than authorized.
Furthermore, the Service argues that inherent in our decision in
Matter of Alemis, Int. Dee. No. 1794 (BIA, July 12, 1967) is a rejection of the concept that a section 245 adjustment is to be equated to
"entry" or "procurement of visa" within the meaning of section 241(f).
Alemis arose in rescission proceedings under section 246 of the Act.
Our decision noted that the issue before the Supreme Court in ErricoScott (supra) was whether section 241(f) saved from deportation
'The Service relies on that portion of section 246 (a) which reads ". . the
person shall thereupon be subject to all provisions of this Act to the same extent
as if adjustment of status had not been made."

685

nterim Decision 4acee
iliens who misrepresented their status for the purpose of evading
pots restrictions whereas the issue in Alemis was whether the alien
was "eligible" for adjustment of status which he had received and not
whether the adjustment had been fraudulently obtained. The Service
argues that by statute (section 246(a) ) the Attorney General must
rescind for ineligibility, not fraud, and once the status has been rescinded the alien in such a. case reverts to a "remained longer nonimmigrant" and by virtue of this fact section 241(f) relief is not
available because fraud is not in issue.
' o-Scott
We are mindful of the fact that the Supreme Court in Erric
stated that "the fundamental purpose of this legislation (241(f ) ) was
to unite families" and "even if there were some doubt as to the correct construction of the statute, the doubt should be resolved in favor
of the alien." There aro basic fundamental differences, however, which
distinguish Errico-Scott from the case before us. Both Errico and Scott
"entered" the United States with visas for permanent residence that
they had obtained by fraud or misrepresentation. The respondent on
the other hand "entered" the United States as a nonimmigrant visitor
for pleasure and presented a "temporary visa" which she had lawfully
obtained. The respondent's entry as a nonimmigrant visitor, by statutory definition, was not for the purpose of family reunification, because
before such a visa may issue, the alien must establish to the satisfaction
of the consular officer that he has a residence in a foreign country
which he has no intention of abandoning and that he is visiting the
United States temporarily for business or pleasure (section 101(a)
(15) (B)). Furthermore, there is no need for a waiver comparable to
section 241(f) in the case of a nonimmigrant visitor because section
212(d) (3) permits the granting of discretionary waivers to aliens
excludable under section 212(a) (19).
Section 241(f) by its very terms applies to aliens who were excludable at the time of their entry by reason of some fraud or misrepresentation by which they effected their entry. The respondent now finds
herself subject to deportation not because of a fraudulent entry but
because she has remained in the United States longer than the immigration laws permit. Her status as a permanent resident alien was
rescinded, not for fraud in the procurement of entry documents, but
for the reason that she was not "eligible" to obtain the immediate issue
of an immigration visa because there was no valid marriage to a United
States citizen on which to predicate a petition for nonquota status.
When her status as a permanent resident alien was rescinded, she
reverted to a nonimmigrant in the United States illegally, a mandatory
requirement under section 246(a) of the Act. This is the sole basis
for her deportability, and it has nothing whatsoever to do with exclud686

Interim Decision #1850
ability for fraud. The cases of Enrico-Scott are clearly distinguishable
from the case before us. Cf., Ferrante v. Immigration and Naturalization Service, Nos. 16658-17854 (C.A. 6, February 7, 1968). We conclude on the basis of the foregoing that section 241(f) of the Immigrati on and Nationality Act has no application to the respondent's case.
The respondent is the parent of a minor citizen child. She is now
tho sole support of this child, as she is separated from the child's
father. The Service has no objection to a remand of the case to the
special inquiry officer to afford the alien an opportunity to make application for discretionary relief and for a full exploration of the possibilities for adjustment and relief. An appropriate order will be entered.
ORDER: It is ordered that the decision of the special inquiry officer
terminating the above-captioned proceeding be and the same is hereby
set aside.
It is further ordered that these proceedings be remanded to the special inquiry officer for the purposes set forth above.

687


Interim Decision #1742

OF IMONDI AND COSTANTINI

In Visa Petition Proceedings
A-17451724
A-17451768
Deckled by Regional Commissioner June 1,9,1987
Petitions to accord beneficiaries preference classification under section 203
(a) (8) of the Immigration and Nationality Act, as amended, as sample

stitchers, are denied, since the evidence does not establish that beneficiaries,
although experienced in tailoring work, possess the requisite 5 years' experi•
ence in the performance of the particular duties of a sample stitcher described

in the job offers and Labor certifications, namely, sewing sample garments
together following sketches and patterns, including working from model forms,
examining St and making alterations.

These petitions are before the Regional Commissioner on appeal
from the decisions of the District Director denying the petitions to
accord the beneficiaries preference immigrant classification under
section 203(a) (6) of the Immigration and Nationality Act, as
amended.
The petitioner is engaged in the production of women's dresses. It
seeks the services of the beneficiaries, natives and citizens of Italy, ages
86 and 28, respectively, for employment as sample ditchers. Forms

ES-578B, "Job Offer for Alien Employment," which have been submitted in these cases contain the required certifications of the Department of Labor as to the unavailability of workers in the United States
to perform such labor. It is further reflected that the positions do not
require any formal education but do require a minimum of five years
experience in the job, the performance of which is described as sewing sample garments together following sketches and patterns in-

cluding working from model forms, examining fit, and making
alterations. Salaries for the positions are listed at $2.50 an hour for a:
85 hour week.
The petitioner, Mrs. Helen Gasperini, Plant Manager for Needlecraft Dress Manufacturing Corporation, contacted the Boston District Office on two occasions to cancel scheduled interviews relating
-

261

Interim Decision #1742
to the qualifications of the beneficiaries and, on one occasion, stated
that the salaries for the positions would be $2.00 per hour rather than
$2.50 as stated on the Department of Labor clearance. She also stated
that she would be unable to appear for interview, in the future, because of business obligations at her place of employment.
Documents submitted in behalf of Liberina Imondi to show qualifying experience were:
(1) A diploma from an authorized professional School of Sewing and Tailoring showing that she attended a course in Professional Tailoring for
women with favorable results, having points 30 per 30. The diploma was
granted on May 10, 1950 in Naples, Italy.
(2) A certificate from Artemisia Lauro Dressmaking, Teano (Caserta) 20
Ammunsiata Street, Italy stating :
"I undersigned La. Cioppa Artendsla Widow Lauro-Taliorcao in

Teano

(Caserta) Italy is to certify that the Miss Liberina Imondi of Teano (Caserta)
has been in my service for seven year to apprentice. She proved to be abil
and skifuin so to one can do such a job one self, providing education and
onesty and cleverness. (sic)
Upon My honour
Teano (Caserta) 25 settember 1980
La Cioppa Artemisia"
The only document submitted in behalf of Giovanna Costantini to

show qualifying experience was from Ditta Carmela Carpinelli,
Sartoria da Donna (Benevento) S. Marco del Cavoti, Via Crocella, 69
dated October 29, 1966 and reading as follows :
"The undergigned Carmela CARPINELLI, born at S. Marco del Cavoti on
October 30, 1930, residing, owner of the said company above.

Declares
Of having Miss Giovanna Costantini born August 31, 1943 ; from the year 1956,
a duration of ten years, of which two years of instruction and school, and eight
years of specialized nanasewr on all women clothes. (sic) ,
The Title Company
(Camels. Carpinelli)"

The District Director denied the petitions on the basis that the petitioner has failed to establish that the beneficiaries qualify for the positions specified in the Department of Labor clearances and that the
petitioner did not intend to pay the salaries of $2.50 an hour as specified in the labor clearance.
On appeal, and in oral argument in connection therewith, Mr.
Richard A. Shuman, Vice President for the petitioning corporation,
appeared and stated that Mrs. Helen Gasperini, their Plant Manager,
was unable to appear because of business commitments; that the
salaries for the beneficiaries definitely would be $2.50 per hour as
specified in the Department of Labor clearances; that they were un-

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Interim Decision #1742
able to obtain additional experience documentation in behalf of Giovanna Costantini but presented two additional documents relating to
Liberina Imondi. These documents were :
(1 ) A letter from Artemisle. La Cioppa reading:
"The undersigned, Artemisia LA. OIOPPA, a dressmaker, hereby states that
has had in her employ Miss Liberina IMONDI from 1944 through 1950.
The undersigned also states that Miss 'mend/ knows how to sew by machine,
to bast, iron and so forth. (sic)
(signed) .Artemisla La Cloppa
Proprietor (Owner)"
(2) A statement from the Dressmaking Shop of Enza Corrado, Via Porte
Roma, Teano, reading as follows:
"It is attested that Miss Liberina IMONDI, after frequenting the courses in
cutting and sewing of this tailor's shop, offered us, as our employee, her professional work, distinguishing herself for seriousness, productivity and capability during the whole period of collaboration.

Miss Liberina IMONDI has offered her professional work since the time she
obtained her Diploma (that is from March 1962 until January 1967).
Teano, April 3, 1967.
In Faith
(signed) Biwa Corrado
Dressmaking Teacher"

The Dictionary of Occupational Titles, Department of Labor, 1965
edition, relating to sample stitchers, occupational code 785.381 outlines
the duties, in pertinent part, as follows:
Sews parts of new style garments, following patterns, sketches, and designs
(Emphasis supplied.)

specification, to prepare sample garments . . .

The nomenclature used by the petitioner to describe the duties of the
job to be performed by the beneficiaries is in essential conformity with
this definition. The petitioner has stated that the minimum experience requirement for the positions is five years.
8 OFIt 204.2 (g) provides, in part, that :
If the alien's eligibility is based on training or experience, documentary evidence
thereof, such as affidavits, must be submitted by the petitioner . . . Each such
affidavit must set forth the name and address of the affiant and state how he
acquired his knowledge of the alien's qualifications, state the place where and
the dates during which the alien gained his training or experience and must
describe in detail the duties performed by the alien.

The documents supplied by the petitioner in behalf of Liberina
Imondi show that she has attended a course of professional Tailoring
for women and served a seven-year apprenticeship in dressmaking;
also, that she has worked for six years in a dressmaking shop and that

she knows how to sew by machine, to baste and iron and that she
has had a course of cutting and sewing in a tailor shop and thereafter worked in that shop from 1962 to 1967.
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Interim Decision #1742
Dressmaker as defined by the Department of Labor, Dictionary of
Occupational Titles, 1965 edition, occupational code 735.361, indicates
that it is one who makes -women's garments such as drags, coats,
and suits according to customer specifications and measurements .. .
A tailor, shop tailor, occupational code 785.381, is defined, in part,
as one who performs specialized hand and machine sewing operations
in the manufacture of made-to-measure or ready-to-wear clothing,
applying knowledge of garment construction and fabrics .. .
It should be noted that experience as a sample stitcher, following
patterns and sketches to prepare sample garments, is not mentioned
either in the description of Miss Imondi's prior duties or contained in
the definition of the titles under which she was previously employed.
In the case of the other beneficiary, Ciovanna Costantini, the only
documentation presented by the petitioner in her behalf was a certificate from Sartoria da Donna indicating that she has had two years
of instruction and schooling and eight years of specialized experience
in hand sewing on women's clothing.
The Dictionary of Occupational Titles, cited above, defines a handsewer, occupational code 782.884, as one who joins and reinforces
parts of articles, such as garments . . . or sews buttonholes and attaches fasteners, such as buttons, snaps, and hooks to articles, or sew s
decorative trimmings to articles, using needle and thread .. .
It is also noted in the case of this beneficiary that experience as a
sample stitcher, following patterns and sketches to prepare sample
garments, is not mentioned either in the description of Miss Costantini's prior duties or contained in the definition of the title under which
she was previously employed.
The entire record has been carefully considered including representations made on appeal and the additional documentary evidence
presented in connection therewith. It is found that the petitioner
has failed to establish that the beneficiaries possess the five years
specific experience required for the performance of the duties of
sample stitchers as described in the job offers and labor certifications.
Therefore, the appeals will be dismissed.
It is ordered that the appeals be and the same are hereby dismissed.

264


MATTER OF P—

In DEPORTATION Proceedings
A-1195231.
Decided by Board August 14, 1959
Conviction Section 241(a)(4), 1952 act, twice convicted alien
not dependent upon length of sentence or confinement.
—

—

Deportability

Deportability under second clause of section 241(a) (4) of 1952 act relating to
twice convicted aliens (unlike first clause relating to single crime within
five years of entry) does not depend upon length of sentence or confinement
imposed on alien following conviction. An order of deportation based
thereon is not invalidated because conviction resulted in a sentence of less
than one year, a suspended sentence, probation, or mere fine.
CHARGE

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4) ]—Convicted
of two erimps; involving moral turpitude after entry, not single
scheme Unnatural and lascivious act and open a.nd g rogg lewdness
and lascivious behavior.
-

BEFORE THE BOARD

Discussion: The case comes forward on appeal front the order of
the special inquiry officer dated May 26, 1959, directing that the
respondent be deported on the charge contained in the order to show
cause.
The respondent, single, male, was born in the town of Upper Economy, Colchester County, Nova Scotia, Canada, on October 6, 1902.
Although the respondent testified that he had been told by his father and two uncles that his father was born in Machias, Maine,
and was a. United States citizen, the respondent admitted that he
had never represented himself as a citizen of the United States.
An attempt to verify the birth of the respondent's father at Machias,
Maine, was unsuccessful although the authorities advised that birth
records there were not complete. The respondent has identified his
birth certificate which shows the place of birth of the father of
respondent as "Lower Economy, Colchester" in the Province of Nova
Scotia, Canada. In addition, respondent has registered as an alien,
and was admitted to the United States as an alien. An investigation
conducted among close relatives of the respondent, including his
mother, indicates that only two out of six persons interviewed

421

thought respondent's lather IN us a United States citizen, the others
believing he was born in Nova Scotia, which was the belief shared
by his wife. None of the persons interviewed possessed sufficient
knowledge regarding the respondent's father to make an affidavit
concerning him. It is concluded that the evidence of record establishes alienage.
The respondent first entered the United States for permanent
residence at the port of Vancehoro, Maine, on April 26, 1921, as an
immigrant. This entry has been verified. He last entered the
United States after a short visit to Canada on September 13, 1946.
On January 18, 1943, in the Municipal Court at Boston, Massachusetts, the respondent was convicted for the offense of committing
an unnatural and lascivious act with a male person, and was sentenced to sia months in the House of Correction with execution of
sentence suspended and was placed on probation for a period of one
year upon the condition, among others, that he personally appear
before the court 011 .Tamtaxy 19, 1944, and on said day last mentioned the term of said probation was dismissed by order of the
court. On February 3, 1958, the respondent was convicted of open
and gross lewdness and lascivious behavior in the presence of a
named person, committed January 24, 1958, and was sentenced to
the House of Correction for a teem of two years, execution of sentence was suspended and the respondent was placed on probation
until February 3, 1960.
Counsel argues that the offenses of which respondent has been
convicted, Which involve acts which are homosexual in nature, do
not necessarily involve moral turpitude. In a long and able brief,
counsel makes reference to what he declares are the present commonly accepted mores or the modern accepted moral conventions,
cites certain psychological and sociological researches and studies and
urges that such homosexual offenses should not he regarded as crimes.
However, we must take the law as we find it, and in Massachusetts
such acts are regarded as crimes. The respondent has been convicted
as a criminal and haS not been treated merely as an object of psychiatric consideration.' We have heretofore held that convictions of
these offenses involve moral turpitude. 2
157 F. Supp. 43, in which the defendant was con1 See Tiolzaptcl v. Wyrsch,
victed of an act of open lewdness but sentence was imposed pursuant to the
New Jersey Sex Offenders Act (N.J.S.A. 2A:164-3 et seq.) whereby the defendant was committed to the Diagnostic Center or the New Jersey Department
of Institution Agencies for examination which resulted in a determination
that his conduct represented a compulsive repetitive form of behavior and in
which it was concluded that there was no confinement of the alien in a prison
or corrective institution for a year or more pursuant to 8 U.S.C. 1251 ( a ) (4).
2 Matter of J—, 2 I. & N. Dec. 533; cf. Fitzgerald ex rel. Miceli v. Landon,
238 F.2d 864.

425
,

R971 2_R1

25

The charge upon which deportation is predicated is the second part
of section 241(a) (4) of the Immigration and Nationality Act, 8
U.S.C. 1251(a) (4). This section; in its entirety, with the second
part underscored, provides that any alien in the United States shall
be deported who:
is convicted of a crime involving moral turpitude committed within five years
after entry and either sentenced to confinement or confined therefor in a
prison or corrective institution, for a year or more, or who at any time after
entry is convicted of two crimes involving moral turpitude, not arising out of
a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial.

We have already decided that the two crimes in the instant case
moral turpitude. It is apparent that these crimes which
were committed in 1943 and 1958 do not arise out of a single scheme
of criminal misconduct. Counsel contends that under the second
clause of section 241(a) (4) of the Immigration and Nationality Act
a suspended sentence, even one for a year or more, cannot serve as
a ground for deportation and also casts strong doubt that Congress
intended the deportation of an alien who has received a sentence for
less than a year, a suspended sentence, or straight probation, or has
been sentenced to pay a small fine. He asserts that this is too radical
a break from the requirement of the previous law of an actual prison
sentence of a year or more and too unprecedented a departure to
rest upon mere inference, and that inasmuch as the legislative history: is, silent on so important a change, such silence indicates most
forcibly that no drastic change of this type was intended.
It is not believed that the congressional history is as silent as
counsel would have us believe. Thus, the Report of the Committee
on the Judiciary pursuant to Senate Resolution 137 states with regard to deportation for commission of crimes which involve moral
turpitude, as follows:
As to such crimes committed subsequent to the time of the alien's entry, it
involve

is held that deportation should be required, in the case of a single conviction,
only if the conviction occurred within five years after entry and resulted in
confinement in a prison or corrective institution for a year : or more. In the
case of an alien convicted of two such crimes at any time after entry not
arising out of a cinglo scheme of criminal misconduct, the alien is deportable
regardless of whether sentenced to confinement?

In commenting on subsection 4 of section 241 of the Immigration
Act, the report from the Committee on the Judiciary submitted with the bill, S-2550, states that this a uction involves
aliens who, within - five years after entry, are convicted of a crime
involving moral turpitude and sentenced to itnprisonment for a year
or more; or who, at any time after entry, are convicted of two such
crimes, whether or not sentenced. The italicized words "such
and Nationality

3

Senate

Report No. 1515, 81st Cong., 2d Sess., pp. 391-392.

426

brimes" obviously refer to crimes involving moral turpitude. The
report further explains: "Thus, an alien who at any time after entry
is convicted of two crimes involving moral turpitude is deportable,
regardless of whether confined therefor, whereas under existing law
the alien must have been sentenced to a term of a year or more
because of such conviction." 4 There is judicial support for the
holding that a suspended sentence for conviction of a crime involving moral turpitude under section 241(a) (4) warrants deportation.5 The effect of conviction resulting in suspension of execution
of sentence was explored at length administratively in Matter of
0 , 7 I. & N. Dec. 539, and it was held that such suspended sentences constituted a basis for deportation under the second clause of
section 241(a) (4).
, supra, there was discussed the holding of the
In Ma.t.lex of 0
Supreme Court in Piano v. Landon, 349 U.S. 901, which involved a
conviction in the State of Massachusetts for stealing a dozen golf
balls. The alien had been sentenced to imprisonment, sentence suspended, placed on probation, and after the probationary period had
passed, sentence was revoked and the case was placed "on file." The
Supreme Court held that this type of conviction did not achieve a
degree of finality sufficient to support an order of deportation. However, in the instant case we do not have the same type of conviction.
Here, after the 1943 conviction execution of sentence was suspended,
the defendant was placed on probation until a certain date and on

that date the term of probation was dismissed by order of the court.
It is to be noted there was no revocation of the prison sentence and
a dismissal of the case (as was the situation in Matter of G , 7
I. & N. Dec. 171) . "The finding of guilty was unrevoked, and the
order of dismissal in the circumstances would have been no more
than a judicial determination that the ends of justice had been
served by the period of probationary discipline and surveillance—
'an authorized mode of mild and ambulatory punishment'—which
had been imposed for the offense of which the defendant' had been
found guilty." Pinto v. Nicolls, 215 F.2d 237, 242. The Supreme
Court reversal was on grounds not affecting this holding of the First
Circuit.
Counsel's third principal point raised is that assuming, without
conceding, that deportation under the second clause of section 241
Senate Report No. 1137, 82d Cong., 2d Sess., p. 21.
wood v. Hoy, 260 F.20 825 (C.A. 9, 1959) citing with approTal the court's
prior holding in Arrellano-Flores v. Hoy, 262 F.2d 667 (1958, appeal pending),
in which the court reaffirmed its holding that a conviction in California followed by a suspended sentence and placement on probation remains a conviction within the meaning or the linutignitiun um] Nationality Act, of 1952;
United Stoles ex rd. Felts v. Garfinkel, 158 F. Supp. 524 (W.D. Pa., 1957y,
aff'd 251 F.2d 846; Holzapfel v. Wyrsch, 157 F. Supp. 43 (D.C.N.J., 1957).
4

427

(a) (4) of the Immigration and Nationality Act could be based on
a suspended sentence, there is still no reason to suppose that the
second part of this section must also intend to sanction a deportation based upon a sentence for less than one year, executed or suspended, or on a sentence calling for straight probation or a mere
fine. Counsel cites no cases to support this argument but relies upon
the scheme of the old act. However, we have pointed out that it
was the congressional intent and purpose to alter the old act by more
easily reaching the repeater criminal.° In actual practice the courts
have sanctioned deportation where the sentence was for less than
one year?
The respondent's last conviction of the crime of open and gross
lewdness and lascivious behavior occurred in January 1958 and he
was still on probation at the time of the hearing. The respondent
does not appear to be eligible for discretionary relief. The appeal
will be dismissed.
Order : It is ordered that the appoa1 be and the same is hereby
dismissed.
See footnotes 3 and 4, supra.

Ma.tter of AI—, 7 I. & N. Dec. 144, upheld in Fitzgerald or rel. Miceli V.
Tandou, 238 F.2d 864 (C.A. 1, 1956) ; United States ex rel. Barite v. Mitrff, 116
F. Supp. 163 (D.C. Md., 1953).

428


Interim Decision *1327

MATTER OF CIINNZI

In SECTION 341 Proceedings
Al2377300

Decided by District Director
Approvecl by Assistant Commissioner Marc& '9,1964
Voluntary voting in the political elections of a foreign state (Ireland) constitutes
an overt act manifesting clearly and unambiguously a decision to accept the
nationality or such roreign state which was previously acquired by operation
of law and, consequently, results in loss of United States citizenship under
section 2, Act of March 2, 1907.

The applicant, born in Ireland on December 10, 1940, has applied for
a certificate of citizenship, claiming to have acquired citizenship at
birth under section 1993, R.S., as amended, by virtue of her mother's
naturalization on December 23, 1929, and prior residence in the United
States?
The applicant's mother was born in Ireland on February 14, 1898,
and arrived in the United States on May 5, 1922. She was naturalized
on December 23, 1929, in the Superior Court at Salem, Massachusetts.
She returned to Ireland in 1931, married the applicant's father on
August 24, 1932, and continued to reside in Ireland until February 7,
1960, when she was admitted to this country as an immigrant.
Whether or not the applicant acquired citizenship at birth depends
upon whether her mother was still a citizen of the United States on the
date of the applicant's birth, or whether she had been expatriated
prior thereto under the provisions of the Act of March 2, 1907, by
being naturalized as a citizen of the Irish Free State. 2
2 48 Stat. 797. "Any child hereafter born out of the limits and jurisdiction of
the United States, whose father or mother or both at the time of the birth of
such child is a citizen of the United States, is declared to be a citizen of the
United States; but the rights of citizenship shall not descend to any such child
unless the citizen father or citizen mother, as the case may be, has resided in the
United States previous to the birth of such child. * * *."
2 See. 2 of the Act of March 2, 1907 (44 Stat. 1228) provides in part: "That
any American shall be deemed to have expatriated himself when he has been
naturalized in any foreign state in conformity with its laws, * * *."

484

Interim Decision #1327
Shortly after the mother's arrival in the United States, the Irish
Free State Constitution of December 6, 1922, granted citizenship of
that State to persons born in Ireland and who were domiciled within
the jurisdiction of the Irish Free State at that time.' The applicant's
mother, then residing in the United. States, was not so domiciled and
did not acquire Irish citizenship thereby. Subsequently, the Irish

Nationality and Citizenship Act of 1935 granted Irish citizenship to
every person not a citizen by virtue of the Irish Constitution, who was
born before December 6, 1922, in Ireland, if permanently residing in
the Irish Free State at that time.' Clearly, the applicant's mother
acquired citizenship of the Irish Free State under the provisions of this
Act, being then married and residing in the Irish Free State with her

husband.
Where one automatically acquired a foreign citizenship by operation
of foreign law, there is a naturalization within the literal coverage
of the Act of March 2,1907,' and the applicant's mother was naturalized in the Irish Free State within the meaning of that Act. However, section 2 of the 1907 Act applies only to voluntary expatriation,
and where a citizen of the United States acquires a foreign nationality

through operation of law, and not upon his own application, his United
States citizenship is not lost under the 1907 Act unless he indicates
acceptance of the foreign nationality by some voluntary affirmative
act. The naturalization by operation of law is regarded as in effect
a continuing offer, the acceptance of which completes the act of naturalization in a. foreign state made expatriating by said Act. Such an
act of acceptance must be an overt voluntary act which manifests
3 "Article 3. Every person, without distinction of sex, domiciled in the area of
the jurisdiction of the Irish Free State (Saorstat Eireann) at the time of the
coming into operation of this Constitution who was born in Ireland or either of
whose parents was born in Ireland or who has been ordinarily resident in the
area of the jurisdiction of the Irish Free State (Saorstat Eireann) for not less
than seven years, is a citizen of the Irish Free State (Saorstat Eireann) and shall
within the limits of the jurisdiction of the Irish Free State (Saorstat Eireann)
enjoy the privileges and be subject to the obligations of such citizenship:Provided
that any such person being a citizen of another State may elect not to accept the
citizenship hereby conferred; and the conditions governing the future acquisition
and termination of citizenship in the Irish Free State (Saorstat Eireann) shall
be determined by law."
' Irish Nationality and Citizenship Act of 1935. Sec. 2—(4) : "Every person
who is nob a citizen of Saorstat Eireann by virtue of Article 3 of the Constitution
but was born before the 6th day of December 1922 either in Ireland or of parents
of whom at least one was born in Ireland shall . . . (a) if sueh person is at the
passing of this Act or becomes thereafter permanently resident in Saorstat
Eireann be deemed to be a natural born citizen of Saorstat Eireann."
5 Op. Atty. Gen., Matter of Picone, Int. Dee. #1259.

485

Interim Decision #1327
clearly and unambiguously a decision to accept the foreign nationality
previouslyaoquired by operation of law .°
Did the mother perform such an act of acceptance of the Irish
nationality conferred upon hers She has testified that she voted in
Irish elections commencing in 1937 and 1938, and continuing up until
1957; that such elections were for a president and members of the
government body; that she voted because representatives of the candidates came to her and asked her to vote; that she was told that she
was on the Irish registry and entitled to vote so she voted; that no
one compelled her, or used any pressure upon her to vote; and that
she did not think there was anything wrong with it. The record
establishes further that when she voted, she knew that she was a citizen
of the United States because she had gone to Ireland as a citizen; she

had "the paper"; and that when requested to vote, had raised a question
as to whether she could vote because she was an American citizen.
It was her belief that only Irish citizens were entitled' to vote. Such
belief is supported by the Irish constitution and Irish law.'
The applicant's mother having voluntarily performed an act for
which only citizens of the Irish Free State were eligible, it remains
to be determined whether the acts of voting clearly and unambiguously
manifested a decision to accept the Irish nationality which had been
conferred upon her by operation of law . 8 Voting has been characterized as indicating:
* • = a desire on the part of the participant to make himself a part of a government by assisting in the choice of those who are, by this mandate, to govern its
affairs. The participation in an election is merely one method of expressing
one's allegiance to the State in which the election is held,
" Ibid.

' Article 16.1.2 of the Irish Constitution declares, "Every citizen without
years who is not disqualified by law and complies with the provisions of the law relating to the
election of members of Dail Eireann, shall have the right to vote at an election
for members of Dail Eireann."
The Consulate General of Ireland has informed this Service that :
"The Electoral Act, 1923 provides in Paragraph 1, of Part 1 that every person
without distinction of sex who is an Irish citizen and has attained the age of
twenty-one years and is not subject to any legal incapacity is entitled to be
registered once as a Dail elector in one but not more than one constituency in
Ireland. Paragraph 3 of Part 1 declares that every person registered as a Dail
elector for a constituency, shall, while so registered, be entitled to vote at any
Dail election for the constituency, and also to vote in that constituency at every
Referendum."
In this connection, it is to be noted that citizenship is generally a prerequisite
to the right to vote. BarasanU v. Acheson, 103 F.Supp. 1011, aff'd 200 F.2d 562.
Voting in a foreign election prior to January 13, 1941, was not, of itself, an
act of expatriation under then existing law. Matter of M—, 1 I. & K. Dee. 537.
9 Uyeno v. Acheson, 96 F.Supp. 510, 514.
distinction of sex who has reached the age of twentynne

486

Interim Decision #1327
Further,
taking an active part in the political affairs of a foreign state by voting in a
political election therein is believed to involve a political attachment and practical allegiance thereto which is inconsistent with continued allegiance to the
United States. * *
In the face of such expressions as to the nature of the aot of voting

in a political election, it can only be concluded that voting in the political elections of a foreign state is an overt act manifesting clearly and
unambiguously a decision to accept a foreign nationality previously
acquired by operation of law. Since the record establishes that the
applicant's mother voted voluntarily in the Irish elections in 1937 and
1938, at a time when she was aware that she was a citizen of the United
States,11 it is concluded that she was expatriated In 1937 12 under the
Act of March 2, 1907, and was not a citizen of the United States when
the applicant was born.
ORDER : It is ordered that the application for a certificate of
citizenship herein be and the same hereby is denied.
"Perez v. Brownell, 356 U.S. 44, 54 ; 78 S.Ct. 568.
Of, Matter of C—S—. 9 I. & N. Dec. 670.
"Matter of Di—P—, 9 L & N. Dec. 660.

u

487


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Interim Decision #3982

Matter of K-S-E-, Respondent
Decided April 10, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
For purposes of determining whether an alien is subject to the firm resettlement bar to
asylum, a viable and available offer to apply for permanent residence in a country of refuge
is not negated by the alien’s unwillingness or reluctance to satisfy the terms for acceptance.
FOR RESPONDENT: Mikhail Izrailev, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Nicholas B. Lucic, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, Acting Chairman; CREPPY, Board Member;
GEMOETS, Temporary Board Member.
GEMOETS, Temporary Board Member:

In a decision dated August 23, 2017, an Immigration Judge found the
respondent removable and denied his applications for asylum and
withholding of removal under sections 208(b)(1)(A) and 241(b)(3)(A) of
the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(1)(A) and
1231(b)(3)(A) (2018).1 The respondent has appealed from that decision. At
our request, the respondent and the Department of Homeland Security
(“DHS”) have filed supplemental briefs. The appeal will be dismissed.
The Immigration Judge found that the respondent, a native and citizen of
Haiti, was firmly resettled in Brazil prior to arriving in the United States and
is therefore ineligible for asylum because he is subject to the mandatory bar
in section 208(b)(2)(A)(vi) of the Act. The record contains a copy of a
registry published by the Brazilian Government, which lists Haitian
nationals, including the respondent, who were offered permanent resident
The respondent does not meaningfully challenge the Immigration Judge’s denial of his
request for protection under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,
G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984)
(entered into force June 26, 1987; for the United States Apr. 18, 1988). We therefore deem
this issue to be waived. See, e.g., Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec. 496,
496 n.1, 498 n.3 (BIA 2018) (noting that an issue addressed in an Immigration Judge’s
decision is waived when a party does not challenge it on appeal).
1

818

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Interim Decision #3982

status in Brazil. The respondent testified that prior to departing Brazil
sometime in 2016, he was aware of an offer of permanent residence in that
country but had not “gone to pick up registry yet.” As evidence of the offer
of permanent residence, the DHS provided a translation of a joint
communique from the Brazilian Ministry of Justice and the Ministry of Labor
and Social Security authorizing a humanitarian program for permanent
residence and explaining a description of the legal process for accepting an
offer of permanent residence. The joint communique is attached to the
registry list.
We apply a four-step framework for determining cases involving firm
resettlement as a mandatory bar to asylum. Matter of D-X- & Y-Z-, 25 I&N
Dec. 664, 665 (BIA 2012); Matter of A-G-G-, 25 I&N Dec. 486, 500–03
(BIA 2011). “In the first step, the DHS bears the burden of presenting prima
facie evidence of an offer of firm resettlement.” Matter of D-X- & Y-Z-,
25 I&N Dec. at 665. “To make such a showing, the DHS should first secure
and produce direct evidence of governmental documents indicating an alien’s
ability to stay in a country indefinitely, which may include evidence of
refugee status, a passport, a travel document, or other evidence indicative of
permanent residence.” Id.
Permanent resettlement exists where there is an available offer that
realistically permits an individual’s indefinite presence in the country. See
Matter of A-G-G-, 25 I&N Dec. at 495 (discussing firm resettlement in terms
of an offer by a country of refuge “of some type of permanent residence that
would allow the alien to remain in that country indefinitely in some official
status”). An alien who is firmly resettled in another country prior to his or
her arrival in the United States “can no longer be considered to be fleeing
persecution” for purposes of asylum. Id. at 490; see also Matter of D-X& Y-Z-, 25 I&N Dec. at 668–69.
The DHS’s evidence includes an offer of permanent residence by the
Brazilian Government. The respondent does not dispute that he was aware
of this offer, which provided for a series of steps that he could have pursued
to obtain permanent residence, including, inter alia, registering with the
police, submitting an application and identification documents, and paying a
fee. However, he failed to pursue the required application process.
We agree with the DHS that these provisions set forth a series of
ministerial acts that would not pose any significant obstacles to the
respondent if he were to choose to accept the right to apply for permanent
residence. See Maharaj v. Gonzales, 450 F.3d 961, 977 (9th Cir. 2006) (“In
other words, an alien may have an ‘offer’ if the alien is entitled to permanent
resettlement and all that remains in the process is for the alien to complete
some ministerial act.”). The respondent was not prevented from accepting
the Brazilian Government’s offer of permanent residence. Rather, he
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Interim Decision #3982

testified that he did not accept the offer because of the cost and time involved
and his fear of local crime if he stayed in Brazil. We conclude that the
DHS presented prima facie evidence sufficient to demonstrate that an offer
of firm resettlement was made available to the respondent. See id. (“The
firm resettlement bar may apply if, instead of completing the process and
accepting the offer of permanent resettlement to which the alien is entitled,
the alien chooses to walk away.”).
“In the second step of our firm resettlement analysis, the asylum applicant
can rebut the DHS’s prima facie evidence of an offer of firm resettlement by
showing by a preponderance of the evidence that such an offer has not, in
fact, been made or that he or she would not qualify for it.” Matter of D-X& Y-Z-, 25 I&N Dec. at 665. The respondent contends that the DHS did not
present prima facie evidence of an offer of firm resettlement because, under
a more complete picture of the legal requirements in Brazil, a “permanent”
visa, such as the one he was offered, is merely an offer of temporary status.
He claims that this status would expire after 5 years and that approval of
an application for renewal would be contingent on the visa holder being
employed at the time of application. The respondent therefore argues that
even if an offer of residence was made available to him, the offer was not
“permanent.” Consequently, he contends that a finding of firm resettlement
is precluded. However, since this feasible offer for “permanent residence”
makes his status renewable, we do not agree that the identified contingencies
to his continued presence render the offer insufficient to be an offer of firm
resettlement.
Not only did the Brazilian Government have a program that would allow
the respondent to apply for permanent status, but in his case, there was
an actual offer to participate in the program. See Camposeco-Montejo
v. Ashcroft, 384 F.3d 814, 818–20 (9th Cir. 2004) (distinguishing the
significance of the right to apply for permanent residence from the ability to
renew a temporary permit). The respondent had permission to work in Brazil
and he was employed. His statement on appeal that he probably would not
be employed at the time when he would need to renew his permanent
residence is speculative and based on general country conditions that may
not be applicable in the future. The requirement to maintain employment
does not, therefore, prevent the status offered to the respondent from being
“permanent.”
The respondent also argues that the DHS did not meet its burden of proof
to establish the relevant foreign law, because it did not provide a full picture
of the legal requirements associated with applying for permanent residence
in Brazil. See Matter of Soleimani, 20 I&N Dec. 99, 106 (BIA 1989) (stating
that foreign law is a matter to be proven by the party seeking to rely on it),
superseded on other grounds by statute, section 208(b)(2)(A)(vi) of the Act,
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Interim Decision #3982

as recognized in Diallo v. Ashcroft, 381 F.3d 687, 692 & n.4 (7th Cir. 2004)
(noting that prior to the statutory change that made firm resettlement a
mandatory bar, “firm resettlement was but one factor that an immigration
judge weighed in deciding whether to grant asylum”).2 We disagree.
Contrary to the respondent’s assertion, the evidence of foreign law that
the DHS submitted is neither minimal nor incomplete. The record contains
ample substantive evidence of the relevant provisions of law and their effect
on the question whether the respondent was firmly resettled in Brazil. The
evidence that the respondent claims was incorrectly omitted is merely
secondary, relating to such matters as the procedure and timing of an
application for renewal of status. The DHS therefore met its burden in a
manner consistent with Matter of Soleimani.
The third step of the firm resettlement analysis requires an Immigration
Judge to “consider the totality of the evidence presented by the parties to
determine whether an alien has rebutted the DHS’s evidence of an offer of
firm resettlement.” Matter of A-G-G-, 25 I&N Dec. at 503. The respondent
was aware that he had an offer of “permanent residence” in Brazil, and he
satisfied its requirements, but he demonstrated his unwillingness to pursue
the offer when it was made. For purposes of determining whether an alien is
subject to the firm resettlement bar to asylum, a viable and available offer to
apply for permanent residence in a country of refuge is not negated by the
alien’s unwillingness or reluctance to satisfy the terms for acceptance.3 See
Matter of A-G-G-, 25 I&N Dec. at 503 (“The regulations only require that an
offer of firm resettlement was available, not that the alien accepted the offer.
To hold otherwise would be contrary to the purpose of the firm resettlement
bar, which is to limit refugee protection to those with nowhere else to turn.”
(citation omitted)). Therefore, the respondent did not meaningfully rebut the
DHS’s evidence that an offer of firm resettlement was available to him.
Finally, in the fourth step, the burden shifts to the respondent “to establish
that an exception to firm resettlement applies.” Id. Although the respondent
described various difficulties he faced in Brazil, he did not establish that the
nature of his stay in that country was too tenuous or that the conditions
imposed by the Brazilian Government were too restrictive for him to be
considered firmly resettled. See 8 C.F.R. § 1208.15(a)–(b) (2019) (allowing
2

The respondent questions whether Matter of Soleimani should be explicitly overruled.
We need not address this issue but note that, after the enactment of section 208(b)(2)(A)(vi)
of the Act, we refined our analytical framework to determine “firm resettlement” in Matter
of A-G-G- and Matter of D-X- & Y-Z-.
3
An alien also cannot nullify an offer of firm resettlement by allowing his qualifications
for permanent residence to lapse or by purposefully becoming ineligible. See, e.g., Vang
v. INS, 146 F.3d 1114, 1117 (9th Cir. 1998) (rejecting an alien’s assertion that he could not
be firmly resettled after he allowed the travel documents issued by the country of refuge to
expire).

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Interim Decision #3982

an alien to rebut a finding of firm resettlement by showing that he did not
stay long enough to “establish significant ties” or that the conditions of
his residence in the country of refuge were “substantially and consciously
restricted by the authority of the country”).
We acknowledge the respondent’s testimony that Haitians were treated
poorly in Brazil, partly on account of their race, and that they were
disproportionately targeted for robbery compared to native Brazilians.
However, the evidence he presented of discrimination and criminal activity
against Haitians in Brazil is limited in scope and does not establish that the
Brazilian Government actively supports any mistreatment of Haitians that
would constitute a conscious and substantial restriction of the respondent’s
residence. See Matter of A-G-G-, 25 I&N Dec. at 503; 8 C.F.R. § 1208.15(b).
Moreover, there is no evidence that the Brazilian Government restricted
his right to travel or any other common, basic human right, with the exception
of the right to vote, which is generally reserved to citizens. In sum, the record
does not show that the conditions of the respondent’s residence in Brazil
were so substantially and consciously restricted by Brazilian authorities
to establish that he was not, in fact, resettled. See 8 C.F.R. § 1208.15(b).
Consequently, we agree with the Immigration Judge’s conclusion that the
statutory firm resettlement bar to asylum in section 208(b)(2)(A)(vi) of the
Act applies in this case. See Matter of D-X- & Y-Z-, 25 I&N Dec. at 667–68.
We turn next to the Immigration Judge’s alternative conclusion that even
if the respondent is not barred, he did not meet his burden of establishing a
well-founded fear of persecution in Haiti. The respondent claims to have
fled Haiti because of mistreatment that he and other members of his family
experienced as a result of their involvement with the Mochrenha political
party, an affiliate of the Farmer Association for the Locality of Mazambie.
The respondent identified his attackers as “bandits,” who are collectively
known as the Cannibal Army. The respondent explained that this group of
bandits are known to work on behalf of the Mochrenha’s rival, the AAA
party. The Immigration Judge found the respondent to be credible but
concluded that he did not meet his burden of establishing eligibility for
asylum or withholding of removal.
We affirm the Immigration Judge’s determination that the respondent has
not demonstrated that he experienced or fears harm from the Haitian
Government or from individuals the Government is unable or unwilling to
control. The record reflects that the respondent’s attackers are part of a
disorganized group of bandits who engage in various criminal endeavors.
While the Immigration Judge acknowledged that the bandits may have had
political motivations, he also found that they were private individuals
who were not affiliated with the Government. On this record, we cannot say

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Interim Decision #3982

that the Immigration Judge’s determination that the attackers are private
individuals is clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i) (2019).
Since the respondent fears private actors, he must establish that the
Government is unable or unwilling to control them. See Matter of A-B-,
27 I&N Dec. 316, 337–38 (A.G. 2018) (explaining that to establish
eligibility for asylum or withholding of removal, an applicant must
show that the source of the claimed persecution is either the government
or persons the government is unable or unwilling to control); see also
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en
banc); Barrios v. Holder, 581F.3d 849, 854 (9th Cir. 2009).
We are not persuaded that the Immigration Judge clearly erred in making
findings of fact regarding the autonomous police force’s ability and
willingness to control these private actors. While we recognize the
respondent’s assertion that he was reluctant to report a sexual assault because
of potential stigmatization, the record does not demonstrate that Haitian laws
or customs effectively deprive someone in his position of the Government’s
protection or that reporting the incident would have been futile or subjected
the respondent to further abuse. Cf. Bringas-Rodriguez, 850 F.3d at
1073–76 (concluding that societal, legal, and cultural restraints towards
homosexuality necessarily deprived the applicant of the protection of the
Mexican Government).
On appeal, the respondent relies on a portion of the background evidence
relating to sexual and gender-based violence. See Bureau of Democracy,
Human Rights and Labor, U.S. Dep’t of State, Haiti Country Reports on
Human Rights Practices for 2016 § 6, at 21–23, https://www.state.gov/wpcontent/uploads/2019/01/Haiti-1.pdf. This information, found under the
heading “Women,” reflects that segments of Haitian society retain antiquated
views regarding the rights and roles of women in society leading to
societal tolerance of certain abuses towards women. This is not indicative
of cultural, societal, or legal constraints that would make reporting the
harm the respondent experienced futile or dangerous.
Finally, we are not persuaded that the Immigration Judge erred in giving
little weight to the documentary evidence reflecting that the respondent
reported the incident resulting in his cousin’s death to the authorities. As the
Immigration Judge properly determined, the document is inconsistent with
the respondent’s own testimony that he never reported any of the problems
he had experienced.
Moreover, the document does not demonstrate, as the respondent asserts,
that “nothing was done to address this murder.” To the contrary, it states
that the respondent reported the incident and that the authorities responded
by investigating. The fact that limited information or resources mired an
investigation does not establish the unwillingness or inability of the Haitian
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Interim Decision #3982

Government to protect a private citizen. Cf. Garcia-Milian v. Holder, 755
F.3d 1026, 1034 (9th Cir. 2014) (discussing that insufficient resources do not
in themselves negate government action to prevent torturous conduct).
This document further reflects that the respondent was not able to provide
information to assist in identifying the attackers, presumably because he was
not present at the scene. The inability to effectively assist the authorities
does not demonstrate that authorities were unable or unwilling to protect
the respondent. See Matter of A-B-, 27 I&N Dec. at 337–38 (“There may be
many reasons why a particular crime is not successfully investigated and
prosecuted. Applicants must show not just that the crime has gone
unpunished, but that the government is unwilling or unable to prevent it.”);
accord Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (per curiam)
(“Without more, we are reluctant to infer government complicity or
indifference from the mere fact that [the] police were unable to locate the
[applicants’] unknown assailants.”).
Considering the record in its entirety, we affirm the Immigration Judge’s
denial of asylum and withholding of removal based on his determination that
the respondent has not demonstrated that he experienced or fears harm from
the Haitian Government or from individuals the Government is unable or
unwilling to control. See 8 C.F.R. §§ 1208.13(a), 1208.16(b) (2019). Given
our disposition, we need not reach the respondent’s remaining contentions.
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general
rule courts and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.”). Accordingly,
the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the Department of Homeland
Security, or conspires to or takes any action designed to prevent or hamper
the respondent’s departure pursuant to the order of removal, the respondent
shall be subject to a civil monetary penalty of up to $799 for each day
the respondent is in violation. See section 274D of the Immigration and
Nationality Act, 8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2019).

824


Amu:

OF

C

In VISA PETITION Proceedings
A-12042411
Decided by Board January 03,1962
Visa petition—Revocation-8 CFR 206—Appeal must be made by petitioner.
Right to appeal from revocation or previously approved visa petition lies
solely with petitioner. Attorney who once represented petitioner and cannot now locate her and who continues to represent beneficiary has no stand-

ing under 8 CFR 206.3 to assert an appeal.
BEFORE THE BOARD

DISCUSSION: An order entered in this case on September 20,
1961, revoked a visa petition approved for classification of the beneficiary as a nonquota immigrant under the provisions of 8 U.S.C.
1101(a) (27) (A). Notice of the revocation was served on the petitioner and the attorney of record on September 27, 1961, by certified
mail. A notice of appeal executed by the attorney of record was
received by the Immigration and Naturalization Service on October 12, 1961.
The attorney of record appeared before this Board in oral argument on November 8, 1961. He stated, in substance, that he once
represented the petitioner; that he has been unable to locate her in
connection with the revocation of her petition; and that he intends
to continue to represent the beneficiary.
8 CFR 206.3 provides, in part: "If upon reconsideration the approval previously granted is revoked, the petitioner shall be informed of the decision with the reasons therefor and shall have 15
days after the mailing of the notification of decision within which
to appeal as provided in Part 3 of this chapter .. ." (Emphasis
supplied. )
It

is clear from the statements of counsel that the appeal before

ns was not intiated by the petitioner as provided in 8 CFR 206.3
(supra). Under the circumstances, this Board will not consider it
on the merits. Since the appeal is not properly before us, we will
dismiss for failure to comply with 8 CFR 206.3.
ORDER: It is directed that the appeal be and the same is hereby
clisiniseci in uecordance with the foregoing opinion.

547


Interim Decision #2866

MATTER OF IBRAHIM
In Deportation Proceedings
A.,21212087
Decided by Board May 18, 1981
(1) Entry into the United States as a nonimmigrant with a preconceived intention to remain
is a serious adverse factor to be considered by immigration judges and the Board
in making discretionary determinations under the Immigration and Nationality Act..
Matter of Garcia-Castillo, 10 I&N Dec. 516 (BIA 1964), reaffirmed.
(2) Immigration and Naturalization Service Operations Instructions are not binding upon
immigration judges or this Board but may be adopted where appropriate.

(3) In the absence of other adverse factors, an application for adjustment of status as an
immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with
a preconceived intention to remain_ Matter of Cavazos, Interim Derision 9.750

(MA

1980), clarified and reaffirmed.
(4) The benefits of Matter of Cavazos, Slipra, are limited to immediate relatives, and an
applichtion for adjustment of status by a fifth-preference immigrant who entered the
United States as a nonimmigrant with a preconceived intention to remain is properly
denied in the exercise of discretion.
CHARGE:

Order: Act of 1952 Sec. 241(a)(2) I8 U.S.C. 1251(a)(2)l Nonimmigrant remained longer
—

—

than permitted

This case is before us on a motion filed by the Immigration and Naturalization Service to reconsider our decision of July 10, 1980, remanding
the case to the immigration judge for further consideration. The motion
will be granted and the appeal will be dismissed.
The respondent is a 35-year old native and citizen of Lebanon_ His
-

last. entry into the United States was on May 19, 1976, as a nonimmigrant visitor for pleasure. On June 3, 1976, he filed an application for
adjustment of status based upon a fifth-preference visa petition filed by
his sister and approved by the Service in October 1975. The District
Director denied the applidation because he found. that the respondent
had entered the United States witl the preconceived intention of
remairtinkAn Order to Show Cause was issued on June 16, 1977, charging the respondent with deportability under section 241(a)(2) of the
Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), for having
55

Interim Decision #2866
remained longer than permitted. At his hearing, the respondent admitted the allegations in the Order to Show Cause. He was found deportable as charged and the immigration judge denied his application for
adjustment of status because he found that the respondent had entered
the United States as a nonimmigrant with the preconceived intention of
remaining.
On appeal, we found ample evidence in the record to support the
immigration judge's conclusion that the respondent had entered the
United States with the preconceived intention of remaining. The immigration judge's discretionary denial of adjustment of status was in accordance with existing precedent at that time_ However, while this case
was pending on appeal we reevaluated the weight to be accorded the
adverse factor of entry as a nonimmigrant with a preconceived intention
to remain vis-a-vis the equity of family ties in the United States. See
Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980).
In Matter of Cavazos, supra, we adopted the Service policy as set
forth in Operations Instruction 245.3(b) regarding the discretionary grant
or denial of adjustment applications. Operations Instruction 245.3(b)
provides that notwithstanding evidence establishing an intent on the
part of a nonimmigrant to circumvent the normal visa-issuing process,
i.e., a preconceived intent to remain permanently at the time of entry as

the
exercise of discretion where substantial equities are present in the case.
Substantial equitiesAre considered to exist if the facts are such that the
alien would be granted voluntary departure until he is invited to appear
at a United States Consulate to apply for an immigrant visa. Under 8
C.F.R- 242.5(a)(2)(vi), voluntary departure may be granted to an eligible alien who is admissible to the United States as an immigrant and
a nonimmigrant, an adjustment application should not be denied in

(A) Who is

an immediate relative of a United States citizen, or

••••
(C) Who has a priority date not more than 60 days later than the date shown in the
latest visa office bulletin and has applied for an immigrant visa at an American Consulate which has accepted jurisdiction over the case.

The respondent in Cavazos came within category (A) above. As the

respondent in this case appeared to come within category (C), we entered
an order remanding this case to the immigration judge for further consideration in light of Matter of Cavazos, supra.
The Service now moves us to reconsider our decision to remand this
case to the immigration judge on the ground that this respondent does
not and should not benefit under Operations Instruction 245.3(b) and
Matter of Cavazos., supra_ The Service

contends that we

have linked

Operations Instruction 245.3(b) and 8 C.F.R. 242.5(a)(2)(vi) together in
this case to virtually eliminate preconceived intent as an adverse factor
56

Interim Decision #2866
in adjustment cases—a result which was never intended by the Service
in promulgating the Operations Instruction. It emphasizes that under
both the instruction and the regulation, relief is granted or denied in the
exercise of the District Director's discretion. The Service does not urge
reconsideration of Matter of Cavazos, supra,.but argues that it is distinguishable in that the respondent here is a fifth-preference immigrant
whereas Mr. Cavazos was an immediate relative. Finally, the Service
refers to a line of cases in which we and the courts have held that entry
with a preconceived intention to remain is a serious adverse factor
relevant to the exercise of discretion. The Service urges us to limit
Cavazos to its facts and not extend its benefits to immigrants other than
immediate relatives.
We are satisfied that Operations Instruction 245:3(b) is not determinative in this case. That instruction is directed to District Directors when
they are considering adjustment of status under section 245. In this
case, an Order to Show Cause has been issued and the case has long
been out of the hands of the District Director. Moreover, as we noted in
Cavazos, the Operatinns Instruction is not binding upon immigration
judges or this Board. We adopted the policy of that instruction in Matter
of Cavazos with respect to immediate relatives because we found it to
be appropriate. As we now find it to be inappropriate with respect to
this case, we reject it.

The question of entry into the United States as a nonimmigrant with a
preconceived intention to remain must be viewed in perspective. Entry
into the United States with a preconceived intention to remain was once
a statutory bar to adjustment of status. Congress eliminated that bar in
1960. See Pub. L. No. 86-648, 74 Stat. 505; see also the discussion in
Ameeriar v. INS, 438 F.2d 1028 (3 Cir. 1971), cert. denied, 404 U.S. 801
.(1971). Thereafter, we concluded that entry with a preconceived intention to remain 33as still a relevant factor in the exercise of discretion and
that it was a serious adverse factor. Matter of Garcia-Castillo, 10 I&-N
Dec. 516 (BIA 1964); affd. Castillo v. INS, 350 F.2d 1 (9 Cir. 1965).
The courts have generally upheld our discretionary denials of adjustment of status in cases where the alien entered with a preconceived
intention to remain and had no close family ties in the United States. See
e.g., Santos v. INS, 375 F_2d 262 (9 Cir_ 1967); Chen v. Foley, 385 F.2d
929 (6 Cir. 1967), Ameeriar v. INS, supra; Soo Yuen v. INS, 456 F.2d
1107 (9 Cir. 1972); Jain v. INS, 612 F.2d 683 (2 Cir. 1979).
The Immigration and Nationality Act makes immediate relative sta-

tus a special and weighty equity. The Congress has accorded immediate
relatives important dispensations not available to visa-preference
applicants. Section 201(a) of the Act exempts immediate relatives from
the Act's numerical limitations on immigration.' Further, section 245 of
I Section 201(b) of the Act defines immediate relatives as "the children, spouses, and
parents of a citizen of the United States . . . ."

57

Interim Decision #2866
the Act which provides for adjustment of status, denies that benefit to
aliens other than immediate relatives who after January 1, 1977, continue in or accept unauthorized .employment prior to the filing of an

application for adjustment of status. Section 245(c)(2). In view of this
most favorable status accorded by Congress, we believe it appropriate
to accord greater weight to immediate relative status than to visa-preference status when making discretionary determinations under the Act.
Therefore, the benefits of Matter (If Cavazos, supra, will be limited to
immediate relatives.
The respondent in this case is not an immediate relative: he is a
fifth-preference immigrant. Accordingly, the appeal will be dismissed.

ORDER The motion to reconsider is granted.
FURTHER ORDER: Upon reconsideration, our prior order of
July 10, 1980, is withdrawn and the appeal is dismissed.

58


Interim Decision #2469

MATTER OF SOSA
In Exclusion Proceedings
A-50269209

Decided by Board February 6, 1976
Applicant, who was admitted to the United States for permanent residence in April 1972
in possession of an immigrant visa issued on the basis of his marriage to a United States
citizen on December 4, 1971, but who ceased living with his wife very shortly after the
marriage and was separated from her at the time he obtained his visa and was admitted
to the United States, did not have a viable marriage at the time of his visa application
and admission to this country and, therefore, his immigrant visa was invalid (Matter of
Gonzalez-Portillo, 13 I. & N. Dec. 309, distinguished). Accordingly, applicant, upon
return to this country in 1974 following an absence to Mexico of approximately one year,
is not entitled to status as a returning resident alien and is excludable under section
212(a)(20) of tt e Immigration and Nationality Act for lack of a valid immigrant visa.
EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20))—Immigrant—no
visa
ON BEHALF OF APPLICANT:
Allan C. Skinner, Esquire
Post Office Bo:t 625
Laredo, Texas 78040

ON BEHALF OF SERVICE:

Richard M. Casillas
That Attorney

The applicant appeals from the August 12, 1975 decision of the immigration judge finding him excludable under section 212(a)(20) of the
Immigration and Nationality Act as an immigrant without a valid immigrant visa. The appeal will be dismissed.
The facts are set forth in detail in the immigration judge's opinion and
need not be repeated at length. Suffice it to say that the applicant
married a United States citizen on December 4, 1971, and on the basis of
that marriage was admitted to the United States as a lawful permanent
resident in April 1972. The Immigration and Naturalization Service
does not challenge the validity of that marriage. However, the applicant
ceased living with his wife very shortly after they were married, and the
immigration j•.idge found that at the time the applicant originally applied
for admission to the United States in Apri11972 "he did not have a viable
marriage and therefore did not have a valid immigrant visa." The
immigration judge concluded that the applicant had not proved by a

preponderance of the evidence that he was adinissible to the United
572

Interim Decision #2469
States as a returning resident because at the time of his original admission as a permanent resident he was not eligible for an immigrant visa.
The applicant was admitted to the United States as a permanent
resident in April 1972. He left this country on February 17, 1973,
intending to take a two-month vacation in central Mexico, but he did not
seek to reenter the United States until March 26, 1974. Because he had
established a colorable claim to returning resident - status, it was the
Government's burden to show why the applicant should be deprived of
that status. Kwong Hai Chew v. Golding, 344 U.S. 590 (1953); Chew v.
Rogers, 257 F.2d 607 (D.C. Cir., 1958); Matter of Kane, Interim Decision No. 2371 (BIA. 1975).
The Service contends that the applicant obtained permanent resident
status by misrepresentation because he failed to divulge his separation
from his United States citizen wife during the entire visa-issuing process. The Service does not dispute the validity of the marriage at its
inception, i.e., it does not contend that the marriage was a sham;
however, the Service maintains that the marriage was not viable and,
therefore, that the visa would have been denied had the true facts been
known. As it is not contended that the marriage was a sham, the Bark
case,' referred to by counsel, is inapposite.
At the exclusion proceeding when the applicant was asked whether at

various relevant times he was living with his wife as husband and wife,
he answered that he was not, but that he was trying to and begging her
to live with him. His counsel states that it was not until he finally sought
a divorce in 1973 that he gave up his hope and efforts for a reconciliation. It does not appear from the record, however, that the applicant's
wife ever gave him reason to believe that they would, be reconciled or
that his hopes of reconciliation were realistic.
The complaint and judgment of divorce show, that the applicant, who
was the plaintiff in that action, and his wife lived together for only one
week after their marriage; that the marriage was never consummated;
and that the applicant's wif,e•efused to live with him. Thus, this case is
distinguishable for Matter of Gonzalez-Pm-till°, 13 I. & N. Dec. 309
(BIA 1969). In that case, although the respondent had been separated
from his wife at the time of original entry, he was not found to have been
excludable at entry because he had had a reasonable belief that he and
his wife would be reconciled. In the present case the marriage was dead
before the applicant obtained his visa and entered the United States in
April 1972.
An alien spouse of a United States citizen Can acquire lawful permanent resident status without regard to numerical limitations under
'Bar k v. INS, 511 F.2d 1200 (C.A. 9, 1975), which has replaced the decision cited by
counsel. In Bark, the issue was whether or not the marriage in question was a sham.

573

Interim Decision #2469
section 201( b) of the Immigration and Nationality Act. This provision
was included in the Act in order to prevent the separation of families
and to preserve the family unit. H.R. Rept. No. 1365, 82d Cong., 2d
Sess. 1680 (1952). Immigration benefits will not be conferred on the
basis of a nonviable or a terminated marriage, because the Congressional purpose would not then be served. Matter of Lew, 11 I. & N. Dee.
148 (D.D. 1965). See,M,atter of Harris, Interim Decision No. 2336 (BIA
1974). We agree with the immigration judge in this case that the applicant's marriage to a United States citizen was not viable at the time he
applied for an immigrant visa and sought admission to the United States
and that, therefore, his immigrant visa was invalid.
In exclusion proceedings it is the applicant's burden to show that he is
admissible to the United States, section 291, Immigration and Nationality Act, although as stated above, in the case of a returning
resident the burden falls upon the Service to prove that a person with a
colorable claim to such status is not entitled to it. Kwong Hai Chew v.
Golding, supra; Chew v. Rogers, supra; Matter of Kane, supra. We find
that, by the evidence presented, the Service has borne its burden to
establish that the applicant was not a returning resident, and that the
applicant has not proven that he is otherwise admissible to the United
States.

ORDER... The appeal is dismissed.
Irving A. Appleman, Member, Dissenting:

This applicant is a native and citizen of Mexico, admitted to the
United States for permanent residence at Chicago on April 4, 1972. His
visa was ismed on . the basis of a 'marriage to a United States citizen on
December 4, 1971. On August 5, 1972 he instituted an uncontested
divorce action against his United States citizen wife; and on February
17, 1973 he departed to Mexico. Judgement in the divorce action was
entered in his favor on March 6, 1973.1n Mexico he proceeded to San
Juan de Cracia, Michoacan, south of Mexico City, and while there
married Guadalupe on Februa'ry 26, 1973. 1

In March 1973 2 he went to the United States Consul in Guadalajara,
Mexico to attempt to secure a tourist visa for his Mexican spouse. At
that time the United States consul took his Form 1-151 (alien registration and reentry permit) from him and sent it to the United States
immigration authorities at Laredo. On March 26, 1974, pursuant to a
letter of appointment received from the immigration authorities, he
presented himself at Laredo and sought admission as a returning resiIt will be :iota' that this was prior to the entry of the final divorce decree in Illinois;
this is not relevant to the deoision in the ease.
2 Either March 4 (Tr. p.66), or March 26 (Tr. p.26).

574

Interim Decision #2469
dent alien to resume his permanent residence in this country. These
exclusion hearings ensued, since it appeared that his admission for
permanent residence on April 4, 1972 might have been unlawful. Initially he was not represented, but when the complexity of the case and
lack of understanding of the applicant became apparent, the immigration judge, most commendably, _directed an adjournment to permit the
alien to obtain counsel. The hearing thereafter was resumed with counsel.
The applicant first met his United States citizen spouse in 1969 while
she was visiting in Mexico. He renewed the acquaintance in Chicago in
October 1969; they "went steady" for a period of time, and were married, as noted, on December 4, 1971. At the time, he was living at the
home of his spouse and her mother. There is conflicting evidence as to
the length of time that he continued to live with her after the marriage
ceremony. The divorce decree states that on December 20, 1971, 16
days after the marriage, his wife left him. A statement taken on March
26, 1974 indicates that he lived with her for six or seven days after they
were married (p. 24). He testified (Tr. p. 24) that he lived with her for
some 24 days after the marriage.
The divorce complaint alleged that the wife refused to consummate
the marriage. He testified that they did have sexual relations, but that
he was working a night shift, that his wife did not like his way of life and
did not wish to stay with him, and that after the marriage she was rarely
home. While they were separated he "begged" her to live with him (Tr.
p.31), they went camping together, and would eat together. He was
living close by and was almost continuously at the mother's house (Tr,
pp. 29-32). They were separated at the time he obtained his visa and
entered, but he continued his efforts at reconciliation for some time
after his admission, until eventually, by mutual agreement, since he had
the necessary funds and she did not,, he instituted the divorce action.
Concerning his departure to Mexico on February 17, 1973, he took a
two month vacation from his job, and left behind a bank account, his
clothes, his radio, and everything he owned including some miscellaneous furniture. During his absence he sent money to pay a part of the
rent for an apartment he had shared with his brother. His employment
in Chicago is still available to him and he is seeking to enter to resume it.
The immigration judge found that the Government had satisfactorily
established that at the time the applicant secured his immigration visa
in 1972, there was no "viable" marriage in existence; that he was not
eligible for the visa which he had obtained as the spouse of a United
States citizen; and that consequently his entry for permanent residence
was unlawful and he is not entitled to admission as a lawfully returning
resident alien. In view of this finding, no determination was made
whether the applicant had abandoned permanent residence in the
575

Interim Deciaion #2469
United States. subsequent to his departure in 1973. The majority has
affirmed. •
This case presents several significant issues. Initially, while neither
the decision below nor the majority decision discusses the point, it
appears that the ease is properly held in exclusion, rather than in
expulsion proceedings. In view of the duration of the alien's absence
from the United States, and the distance traveled, it cannot be found
that his case is governed by the rule laid down in Rosenberg v. Rend,
374 U.S. 449 (1963). Consequently, the issue presented in MaldonadoSandoval v. INS, 518 F.2d 278 (C.A. 9, 1975), and Matter of CastilloPineda, InterM Decision No. 2374 (BIA 1975) is not present here. (See
Matter of Lea!, Interim Decision No. 2439 (BIA. 1975)).
The major issue presented is whether or not the Government has
satisfactorily met the burden of proof laid down by Matter of Kane,
Interim Decision No. 2371, and Chew v. Golding, 344 U.S. 590 (1953).
The "viable" marriage concept was enunciated in the framework of a
visa petition :?roceeding in which a petitioner carries the burden of
proving that he has a marriage in existence which can be recognized
under the immigration laws, and that the grant of his application will
serve the purpose of joining together a family unit.s This, on the other

hand, is an exclusion proceeding in which, because the applicant has
shown his prior admission for permanent residence, the Government's
burden is not iissimilar to that of a deportation ease.
Ws not alleged, nor has it been shown, that the marriage in 1971 was
invalid at its inception. On the contrary, the immigration judge found
otherwise, and the majority decision affirms that finding. The United
States citizen petitioner satisfied the Immigration and Naturalization
Service that there was a "viable" marriage at the time that her visa
petition for this alien was approved. This marriage was not terminated
until March 6, 1978, 15 months after its celebration, and 11 months after

he entered the United States. It was not terminated by an annuhnent,
so as to give rise to the issue of retroactivity ab initio presented in
Matter of Sar,iedi, 14 I. & N. Dec. 625 (BIA. 1974), and Matter •of
Castillo-Pineda, supra, but was ended by divorce.
There is evidence that the marriage was consummated, and that the
parties lived together for a substantial period of time prior to separation. The Audi rigs of an uncontested divorce decree are not determinative in this connection. See Matter ofF , 9 I. & N. Dec. 684 (BIA 1962);
See also Karayannis v. Brownell (D.C. Cir., 195'7) 251 F.2d 882. It will
• be noted in any event, that while the decree finds nonconsummation, it
also finds that the citizen spouse left the applicant and was responsible
—

Even in visa petition pmeectlings the definition of "viability" is a matter of varying

interpretation, see e.g. Bark v. INS, 511 F.2d 1200 (C.A. 9, 1975).

576

Interim Decision #2469
for the disruption of the marriage. The circumstances of the marriage
were such as could reasonably be expected to cause marital difficulties.
The citizen spouse was only 17, some 14 years younger than the applicant. He worked on a night Shift, obviously a disruptive element to a
new marriage. He has testified to a lack of funds at the time the
marriage was celebrated. The citizen spouse was not called as a witness
and the applicant's testimony is =contradicted that he made repeated
efforts at reconciliation after his entry.
The judge's findings concerning credibility are normally entitled to
great Weight. At times the testimony of the applicant was quite confused; as noted by the judge. However, the applicant is far from the
most literate person, as evidenced by his inability to read even in
Spanish without assistance (Tr. pp. 32, 37, 42). Counsel noted for the
record the alien's general lack of intelligence, (Tr. p. 71) and this is
borne out by many of his answers, which, by their unresponsiveness,
evidence* lack of understanding:of the question rather than an intent to
deceive. For example, he testified repeatedly at the outset of the hearing that he was entering simultaneously "to visit" and to resume his
employment in Chicago—answers which were inconsistent on their face.
A good deal of the confusion in his testimony occurred during the earlier
part of the hearing when he did not have counsel present. The immigrationjudge clearly recognized the alien's confusion when he adjourned to
allow an opportunity to obtain counsel.. The Government's case rests
entirely on the alien's own testimony, which has now been found credi
ble in the part which renders him excludable, and not credible as to his
explanation of what occurred. Under the circumstances the finding as to
lack of credibility must be treated with reservation, particularly in the
absence of any countervailing evidence whatsoever, except the divorce
decree.
For the purpose of this proceeding the validity of the marriage must
be determined as of the time of entry. If valid then, the entry was
lawful. One cannot escape the conclusion, from examination of this
record, that, had the alien been successful in his efforts to effect a
reconciliation after his entry we would not have these proceedings
today. It is possible that the majority decision rests to a degree on
hindsight. That the marriage ended in divorce does not mean that it was
-

invalid at the time of entry_

There is a limit to the extent to which there may be an administrative
challenge to the validity of a marriage duly celebrated and consummated, and in my opinion that limit has been exceeded here. Whatever
license may exist for the Service to scrutinize the "viability" of a marriage in processing a visa petition, cannot extend to nonrecognition of a
marriage, duly celebrated, valid in its inception, consummated, in existence over a year, recognized as valid by the Government at the time of
577

Interim Decision #2469
the alien's admission, and terminated by divorce, under the circumstances ?resented in this case.
Matter of Gonzalez P ortillo, 13 I. & N. Dec. 309 (BIA 1969), is a much
closer case in that it was contended there that the alien had obtained his
visa by fraud because prior to his application for a visa his citizen wife
had told him she intended to terminate the marriage and he had ceased
to reside with her. The finding in Matter of Gonzalez Portillo has equal
applicability here,—
-

-

. . . we doubt that Congress, when it enacted the waiver provisions in section 212
(a)(14), intended that this bounty should be rescinded and become unavailable to an
alien spouse of a United States citizen who at the time of entry had reason to believe
that he would be successful in reviving a floundering marriage which, according to the
evidence before us, appears to be contracted in good faith and which. had subsisted until
shortly before his departure to obtain a special immigration visa. . . . It is our position

that the fact that the respondent was unsuccessful in resuming marital relations with his
wife after entry should not retroactively affect his status with regard to the labor
certification raquirement at the time of entry since it is the time of entry which controls,
Matter of Paco, 12 I. & N. Dec. 599 (BIA 1968). [Emphasis added.]

Like the applicant, Gonzalez Portillo had a marriage valid in its
-

inception, was separated from his spouse when he got his visa, and was

unsuccessful in reviving the floundering marriage. Even assuming the
applicability of the "viable" concept in this proceeding, Matter of
Gonzalez-Portillo is either dispositive of the issue of "viability", or must
be overruled. One can find no rational basis for distinction. This record
is a long, long way from establishing that the marriage was hopelessly
and irretrievably "dead" at the time the applicant entered. The Government has not met its burden of establishing that the alien either
perpetrated a fraud when he entered in 1972, or that he was inadmissible at that time for lack of a valid labor certification, or a valid visa.
If the applicant is held to have obtained lawful permanent residence in
1972, it must then be determined whether he abandoned his residence
during his extended absence. This raises a grave question concerning
the reason for the duration of his absence. There is clear evidence he had
no intention of abandoning when he left. lie took steps to retain residence even while abroad. Within approximately a month after leaving
the United States he was making efforts to bring his new spouse to this
country. The record is silent as to why the United States counsul took

away his Form 1-151 in March of 1973, or why he was not summoned to
hearing in connection with the matter until over a year later. If the
delay was occasioned by his own actions, then there is reason to believe
he may have abandoned his residence, and even if lawfully admitted in
1972, he would not be admissible today. On the other hand, if the delay
was brought about by circumstances outside of his control, and by
possibly u/tm, wires actions of Government officials, it is a different
578

Interim Decision #2469
matter entirely. This aspect of the case was not explored, apparently
because of the charges and findings below. The case should be remanded
for a full exploration and a determination as to whether or not he did in
fact abandon his lawful residence in this country.

579