Interim Decision #2610

MATTER OF SAUNDERS
In Deportation Proceedings
A-20490949
Decided by Board January 27, 1977, and August 25, 1977
(1) Respondent applied for adjustment of status to that of a lawful permanent resident
under section 245 of the Immigration and Nationality Act as the spouse of a United
States citizen. In the application respondent disclosed two convictions in England for
possession of marijuana. The second of those convictions was under the Misuse of Drugs
Aet of 1971 which made guilty knowledge a relevant factor in determining guilt.
Therefore this case is distinguishable from Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).
The second conviction renders the respondent subject to deportation under section
241(a)(11) of the Act. See Matter of Pasquini, Interim Decision 2496 (BIA 1976).
(2) During the five-year period immediately following an alien's adjustment of status under
section 245 of the Act, if it appears that the alien was in fact ineligible for that adjustment,
the adjustment must first be rescinded in proceedings brought under section 246 of the
Act before deportation proceedings can be instituted.
(3) Notwithstanding that the rescission proceedings were timely begun, the Board ordered the deportation prneeeding.s terminated where the notice of intention to rescind
was inadequate under 8 C.F.R. 246.1 and did not give respondent an opportunity to be
heard, and respondent never received final notice that his adjustment had been rescinded.
(4) Service motion to reconsider order terminating deportation proceedings, denied.
CHARGE:
Order Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11))—Convicted of [violation
of] law relating to illicit possession of marihuana

ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Gerald H. Robinson, Esquire
300 Standard Plaza
Portland, Oregon 97204
Counsel of Record:
George V. Des Brisay, Esquire
1123 S.W. Yamhill Street
Portland, Oregon 97205

George Indelicato
Appellate Trial Attorney

Before the Board, January 27, 1977

In a decision dated January 30, 1976, the immigration judge found the
respondent deportable as charged and ordered his deportation to Great
Britain. The respondent has appealed from that decision. The appeal
will be sustained.
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Interim Decision #2610
The respondent, a native and citizen of Great Britain, was convicted
in England for possession of marihuana in 1969 and 1971. He entered the
United States as a nonimmigrant visitor for pleasure in 1973 and subsequently married a United States citizen. The respondent thereafter
made an application for adjustment of status to that of a lawful permanent resident under section 245 of the Immigration and Nationality Act.
In connection with this application the respondent disclosed the fact of
his convictions. The Immigration. and Naturalization Service granted
the application on October 1, 1974, and the respondent's status was
adjusted to that of a lawful permanent resident.

Shortly thereafter, on November 13, 1974, the Acting District Director sent a letter to the respondent notifying him of his intention to
rescind the respondent's permanent resident status pursuant to the
provisions of section 246 of the Act and informing him of his opportunity
to answer within 30 days. The letter, which is in the record before us,
states that the respondent was ineligible for adjustment of status under
sections 212(a)(23) and 212(a)(19) of the Act. It contains the following
statements:
(1) You have been found ineligible under Section 212(a)(23) for two convictions of illegal
possession of narcotic drugs or marihuana to receive a visa for entry into the United
States.
(2) You hava hppn found ineligible under Section 212(a)(19), for obtaining or procuring a
visa or other documentation to enter the United States by fraud or by wilfully
misrepresenting a material fact, by not revealing the prior arrests and convictions, at
the time you obtained your nonimmigrant visa at the American Embassy in London.

The respondent, who did not receive the letter of November 13, 1974,
but learned of the action against him from a friend who received the
letter, wrote the Service from Mexico requesting a six-month period
within which to depart from the United States. In his letter he stated

that he did not deny the allegations made against him. On December 23,
1974 the District Director notified the respondent that his permanent
resident status had been rescinded. This letter was returned undelivered to the Service. These deportation proceedings were subsequently
instituted against the respondent under section 241(a)(11) of the Act
which provides that any alien who has been convicted of a violation of
any law relating to the illicit possession of marihuana shall be deported.
On appeal counsel for the respondent raises three contentions: he
argues that (1) under the court's decision in Lennon, v. INS, 527 F.2d
187 (2 Cir. 1975), the convictions involved here do not subject the
respondent to deportation under section 241(a)(11); (2) the respondent
had a right to a full rescission hearing which was denied; (3) the Service,
which had knowledge of the convictions prior to the grant of adjustment
of status, is estopped from deporting the respondent on the basis of
those convictions.
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Interim Decision #2610
With respect to counsel's first contention, in Lennon the court held
that Congress did not intend to impose the harsh consequences of
exclusion upon an individual convicted of possession of drugs under a
foreign law that made guilty knowledge irrelevant. See Matter of Lennon, Interim Decision 2304 (BIA 1974), reversed on other grounds,
Lennon v. INS, supra. The court's interpretation of Congressional intent
in Lennon applies equally to proceedings instituted against an alien
under the deportation provision of section 241(a)(11). The court concluded that the British statute under which the alien had been convicted

imposed absolute liability for unauthorized possession of drugs and
vacated the order of deportation.
The alien in Lennon, was convicted under the British Dangerous
Drugs Act of 1965. In the present case at least one of the convictions
was had under a statute different from that involved in Lennon, namely
the Misuse of Drugs Act of 1971, a law which repealed the 1965 Dangerous Drugs Act. Section 28 of the Misuse of Drugs Act, which applies to
proceedings against persons charged with possession of marihuana, provides, in pertinent part:
28.—(3) Where in any proceedings for an offence to which this section applies it is
necessary, if the accused is to be convicted of the offence charged, for the prosecution
to prove that some substance or product involved in the alleged offence was the
controlled drug which the prosecution alleges it to have been, and it is proved that the
substance or production question was that controlled drug, the accused—
(a) shall not be acquitted of the offence charged by reason only of proving that he
neither knew nor suspected nor had reason to suspect that the substance or product
in question was the particular controlled drug alleged; but
(b) shall be acquitted thereof(i) if he proves that he neither believed nor suspected nor had reason to
suspect that the substance or product in question was a controlled drug; or
(ii)if he proves that he believed the substance or product in question to be a
controlled drug, or a controlled drug of a description, such that, if it had in fact
been that controlled drug or a controlled drug of that description, he would not
at the material time have been committing any offence to which this section
applies.

A defendant, then, who can prove lack of guilty knowledge is not
guilty under the terms of the statute. Consequently, guilty knowledge is
relevant, all that is required under Lennon. Therefore, this case is
distinguishable from Lennon. See Matter of Pasquini, Interim Decision
2496 (BIA 1976).
'With respect to counsel's second contention, section 246 of the Act
provides, in pertinent part:
(a) If, at any time within five years after the status of a person has been otherwise
adjusted under the provisions of section 245 or 249 of the Act or any other provision of
lmw to that of an ahem lawfully admitted for permanent residence, it shall appear to the
satisfaction of the Attorney General that the person was not in fact eligible for such
adjustment of status, the Attorney General shall rescind the action taken granting an
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Interim Decision #2610
adjustment of status to such person and cancelling deportation in the case of such person
if that occurred and the person shall thereupon be subject to all provisions of this Act to
the same extent as if the adjustment of status had not been made.. .

In those cases in which section 246 is applicable, its provisions must
be complied with before deportation proceedings may be instituted.
Matter of V

—

, 7 I. & N. Dec. 863 (BIA 1956). If, within five years of the

alien's adjustment of status under section 245, it appears that the alien
was ineligible for that adjustment, his permanent resident status must
be rescinded pursuant to section 246 before deportation proceedings can

be instituted against him.
In the present case, rescission proceedings were instituted against
the respondent prior to these proceedings. Counsel, however, has
raised a question as to whether the respondent had notice of the procedural safeguards guaranteed him in those proceedings. See generally
8 C.F.R. 246. In this case defenses that would have been available to the
respondent in rescission proceedings may have been lost for failure to
raise them. Under these circumstances, we shall terminate deportation
proceedings. The District Director, of course, may determine to reinstitute rescission proceedings Against the respondent. That decision lies
generally within his discretion. See Matter of Quan, 12 I. & N. Dec. 487
(Deputy Assoc. Column 1967).
In view of the above opinion, we need not address the issue of
estoppel.
ORDER: The appeal is sustained; the proceedings are terminated.
Before the Board August 25, 1977
BY: Milhollan, Chairman; Wilson, Maniatis, and Maguire, Board Members. Concurring
Opinion by Board Member Appleman.

The Service has moved that we reconsider our decision dated January
27, 1977 sustaining the respondent's appeal and terminating the proceedings. The motion will be denied.
In our decision we held that, because five years had not passed since the
respondent had his status adjusted to that of a lawful permanent resident under section 245 of the Immigration and Nationality Act, his
permanent resident status must be rescinded pursuant to section 246
before deportation proceedings could be instituted against him. Because

it appeared that the respondent did not have adequate notice of the
procedural safeguards guaranteed him in the rescission proceedings
which had been brought against him, we ordered that the deportation
proceedings be terminated. We pointed out in our opinion that the
decision whether to reinstitute rescission proceedings against him lies
within the discretion of the District Director. In view of our decision to
terminate, we did nut reach the issue of estoppel which was raised by
the respondent.
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Interim Decision #2610
The Service presents two issues in its Motioii to Reconsider. First, it
contends that the respondent had adequate notice of the rescission
proceedings against him. With respect to this issue, the respondent
testified that, while he was on vacation, the notice of intention to rescind
was mailed to him. The person living in the respondent's home signed
the return receipt and informed the respondent by telephone of the

contents of the letter. (Tr. p. 12). The notice dated December 23, 1974,
advising the respondent that his status had been rescinded was not
received by the respondent and was returned to the Service undelivered. (Tr. p. 15).
Ordinarily, the notice of intention to rescind provided the respondent
would be sufficient under section 246. See 8 C.F.R. 246.1. However,
this case presents unusual circumstances, in particular, an intention by
the Service to rescind the adjustment on the basis of evidence which was
provided by the alien at the time his status was adjusted. Moreover, the
respondent was on vacation at the time of the proceedings, and there is
evidence that the Service knew it. (Tr. p. 12, 13). The respondent also
contends that another Service office informed him that his adjustment
could be rescinded only after the commission of a felony. (Tr. 13). Under
these circumstances, we conclude that the notice of intention to rescind
provided the respondent was insufficient. The respondent did not have
an adequate opportunity to be heard—a safeguard provided him under
the law.
With respect to the first contention of the Service, it is also argued
that Matter of Guan, 12 I. & N. Dec. 487 (Dep. Assoc. Comm. 1967), a
case cited in our January 27, 1977, decision, is distinguishable. Reference
to our decision will show that Matter of (Juan was cited as support for
the point that the District Director is not compelled to institute rescission proceedings in every case. His decision is a matter for the exercise
of discretion.
The Service also contends that an alien whose status is adjusted
under section 245 is not thereby exempt from the exclusion and deportation provisions of the Act. We agree. Relying on Matter of V—, 7 I. &
N. Dec. 363 (BIA 1956), we merely held that, during the five years
subsequent to the alien's adjustment, the adjustment must be rescinded
where it appears that the alien was not in fact eligible for the adjustment before deportation proceedings can be instituted against him on

the basis of his ineligibility. It is the Service's contention that the
holding in Matter of V is inapplicable because in the present case, unlike
in Matter of V, the ground of ineligibility could have subjected the
respondent to deportation prior to the adjustment. We disagree. We are
of the opinion that the distinction is not material.
The Service also claims that our holding with respect to the necessity of first rescinding the adjustment before deportation proceeding can

330

Interim Decision #2610
be instituted is erroneous in view

of the Attorney General's decision in

Matter of S—, 9 I. & N. Dec. 548 (BIA 1961; Attorney General 1962;
BIA 1962). In Matter of S—, the Attorney General was presented with a

case in which the five year period had passed and the alien was claiming
that, as a consequence, he was saved from deportation on grounds which
existed prior to the adjustment. In the present case, five years have not

passed, since the respondent's status was adjusted. Therefore, Matter
of S—, is inapposite.
Our

decision of January 27, 1977, is correct. The Motion to

Reconsider

will be denied.
ORDER: Motion to Reconsider is denied.
Irving A. Appleman, Member, Concurring:

Respondent is a 29-year-old native and citizen of Great Britain. He
the United States as a nonimmigrant visitor in 1973, married a
United States citizen on September 27, 1973, and in November of 1973
filed an application for adjustment of status as permanent resident. In
his application he disclosed two convictions in England for possession of
marijuana, in 1968, for which he received a $50 fine, and in 1973, for
which he received a $100 fine. The records of these convictions were
presented to the Service adjudicator, after which the application was
approved, and on October 1, 1974, his status was adjusted to that of a
lawful permanent resident.
On November 13, 1974, an Acting District Director sent a letter to the
respondent advising of an intention to rescind the adjustment. The
respondent, who at the time was in Mexico, never received this letter,
but was advised telephonically of its contents through a friend. On
December 23, 1974, a letter notifying the respondent that his permanent
resident status had been rescinded was sent to the respondent. It was
returned undelivered. At no time did the respondent demand a hearing,
under 8 C.F.R. 246, nor did he ever receive one.
These deportation proceedings were begun by service of an Order to
Show Cause on October 2, 1975. He is charged with deportability under
section 241(a)(11), 8 U.S.C. 1251(a)(11), because of the narcotic convictions.
entered

In our decision of February 4, 1977, sustaining the appeal and terminating proceedings, we noted that the respondent had raised three

contentions. The first of these, relating to the Second Circuit decision in
Lennon, v. INS, 527 F.2d 187 (1975), was ruled on adversely to the
respondent, because we are concerned with a different statute than in
Lennon. As to the second, we found merit, in the somewhat unusual
facts of the case, to the argument that there was doubt -whether the
respondent had adequate notice of the procedural safeguards guaranteed him under section 246 of the Act (8 U.S.C. 1256), and 8 C.F.R. 246.
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Interim Decision #2610
We therefore ordered termination of the deportation proceedings to
afford the Service a choice whether or not to reinstitute rescission
proceedings. In view of this holding it was not necessary to reach the
serious issue of estoppel, the third contention raised on appeal.
In the motion for reconsideration now before us, the Service not only
argues that there was adequate compliance with notice requirements

and due process safeguards in the rescission proceeding, but that, in
view of the Attorney General's ruling in Matter of S, 9 I. & N. Dec. 548
(1962) the institution of a rescission proceeding was unnecessary.

I
It will be noted that this alien, adjudicated a lawful permanent resident in 1974, would have defenses available to him in a rescission
proceeding which are not available to him in these deportation proceedings. An initial consideration would be whether the institution of rescission proceedings was warranted. While rescission may occur, in the
literal language of the statute, for "lack of eligibility" alone (Section 246,
8 U.S.C. 1256), it is, in the experience of this Member, most unusual to
attempt, rescission where some element of fraud or concealment was not

involved in the adjustment. Respondent could certainly argue that the
congressional intent of the rescission provision did not cover one in his
position. Alternatively, he could urge that as a matter of prosecutive
judgment, quite apart from estoppel, having fully disclosed a relatively
minor arrest record,' and having effected complete rehabilitation (so far
as the record before us reveals) the Service should not pursue rescission. More importantly, in rescission proceedings, the alien could raise
the estoppel issue in the direct framework of the claimed prejudicial
action, with appropriate appeals and review if decision were adverse.
In contrast, in deportation proceedings, if rescission is viewed as a
fait accompli, the respondent has lost his favored status as a lawful
permanent resident, and the inquiry- is limited to the lawfulness of his
status before the adjustment occurred—in this case, whether in 1974
he had remained longer as a nonimmigrant than authorized. (Section 246
S U.S.C. 1256).

There is no question that the respondent was seriously prejudiced by
the failure to have a hearing in the rescission proceedings_ The vigor

with which the Service resists affording him that opportunity is somewhat startling, given the somewhat unusual facts of the case. It is a fact
that the respondent did not receive the letter advising of an intention to
rescind. There is considerable question, from this record, what was read
to him during the long distance telephone call by his "friend." Respon1

Under present Service policies, either of the offenses, taken alone, would probably not

lead to the institution of deportation proceedings against a lawful permanent resident (See

'Operation Instruction 242.1(a)(28), 4-27-77).
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Interim Decision #2610
dent's letter of December 9, 1974, from Mexico (Ex. 5) says that he has
"heard of the allegations." Was he also fully aware of his rights to a
hearing and to make a defense? His letter does not indicate it. On the
contrary it reveals a woeful ignorance of his position. Far from reflecting an understanding that the Service letter was a Notice Of Intention
To Rescind, only; he appears to have accepted the letter as a determination of deportability, something which may or may not occur after
rescission takes place and which usually requires the instutition of
separate proceedings, as this case illustrates. Nowhere does Exhibit 5
reflect respondent's understanding of his rights under the law. On the
contrary he asks for "compassion" and "understanding," and for a few
months to put his affairs in order before le aving. He states his intention
to contact the Service on arrival in the United States. Two weeks later,
after an in absentia determination, the letter advising of the fact of
rescission went out.
One cannot help question the "compassion" and "understanding' received by this lawful permanent resident, married to a United States
citizen, with a United States citizen child, who after complete disclosure
of his "crimes," suddenly gets word, as he erroneously understands it,
that his permanent residence has already been taken away and he must
leave the country forthwith. In these circumstances I completely concur
in that portion of the majority decision which rejects the Service argument that there was adequate compliance with procedural due process
requirements in the rescission action. In this connection it is worth
noting that the burden the United States bears in a rescission proceeding is the same clear, convincing and unequivocal burden borne in
deportation, Waziri v. INS, 392 F.2d 55 <9 Cir. 1968).
II

It is the further contention of the Service that this alien is subject to
deportation proceedings in any event, and even without the institution
of rescission proceedings, since the ground for deportation existed prior
to the adjustment of status. As to this I am in agreement with the
majority that the interpretation given the statute by the Attorney
General in Matter of S , 9 I. & N. Dec. 548, (BIA 1962), does not
warrant the conclusion the Service urges, but I reach that result for
somewhat different reasons.
Matter of S was an exclusion proceeding. The alien fraudulently
obtained an adjustment of status in April. 1955, concealing the fact that
he had obtained a visa by fraud in 1949_ No rescission occurred within
five years. Instead, the facts came to light when he attempted to
reenter the United States in August 1960, as a lawfully returning
resident alien after a visit abroad. The Board held that the passing of
the five years operated as a statute of limitation barring exclusion on
—

—

333

Interim Decision #2610
any ground which existed prior to the adjustment. Pointing to the
Congressional history, the Attorney General noted that adjustment
under section 245 was never intended to confer greater rights than
those enjoyed by a permanent resident who gained his status through
entry with an immigrant visa. Since there exists no statute of limitation
as to the latter, and he may be deported or excluded at any time, for proper
cause, the same treatment must be accorded the alien adjusted under
section 245, the replacement for the old preexamination procedure.
What then is the effect and meaning of the five-year limitation in
section 246, on rescission of permanent resident status? In this area
Matter of 8— is somewhat vague, and one can readily appreciate the
Service difficulty in applying the provision. The solution the Service
offers here, however, is for all practical purposes, to read section 246
out of the statute altogether. I cannot agree that Congress intended

section 246 to be that meaningless.
The majority decision points to one instance where section 246 should
be applicable, i.e., where deportation (or exclusion) is sought, as here,
within the five-year period. This has the virtue of reconciling Matter of
S—, as the Attorney General pointed out, with the earlier decision of
this Board in Matter of V—, 7 I. & N. Dec. 363 (BIA 1956). In the
Attorney General's language, in Matter of V— (as here) the rescission
procedure, specifically provided to determine the issue of the alien's
ineligibility for the record of lawful admission, was "available," the five
years not yet having elapsed; whereas in Matter of S— this was not the
case. The majority decision thus finds some support in Matter of S—.
However, the implication which flows from this is that within the five
years a deportation or exclusion proceeding based on a ground rendering the alien ineligible for the adjustment must be preceded by rescission, but that after the five years there need be no compliance with
section 246. The difficulty with this is the lack of any reason for such a
distinction. On the contrary, why should the alien who had been a lawful
permanent resident for more than five years, with correspondingly
greater equities, be in a far worse position than one who has resided
here for a shorter period of time?
In my opinion section 246 does permit of another interpretation. As to
any ground of deportation or exclusion, known and embraced by the
grant of adjustment of status, the five-year rule should apply with full
force, and operate as a full statute of limitations. As to any ground
arising before the grant of adjustment, and not known at the time of
adjustment, deportation or exclusion proceedings should lie without
regard to rescission and the five-year rule. 2 In short, section 245 should
be read as a waiver and adjustment of known grounds of disability. As
As to any ground arising after the adjustment of status, it seems clear, under the langu age

of the statute, that deportation or exclusion proceedings lie, regardless of section 246.

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Interim Decision #2610
to these, if the Service is to deport or exclude, it must first rescind
under section 246, and must do so within five years. As to all other
grounds the alien is no different from any other permanent resident.
With this interpretation the Congressional intent is given meaning and
the existing case law reconciled.
Applied here, this interpretation clearly dictates the necessity of a
rescission proceeding, and for this reason I have concurred in the result
reached by the majority. For the reasons set forth in part I of this
opinion, this case is best resolved by a swift and merciful termination of
the deportation proceedings.

335


Interim Decision #2454

MATTER OF MATA

In Visa Petition Proceedings
A-20840664

Decided by Board November 28, 1975
(1) In proceedings to revoke approval of a visa petition, the petitioner is entitled to the
same rights to inspect the record of proceedings which constitutes the basis for the
decision, to rebut the evidence contained therein, and to have his explanations, rebuttal, or evidence included in the record before the decision is rendered, as in the ordinary
visa petition procedure. Although the regulations governing the procedure for revocation of a petition (8 CFR 205.3) are not so explicit, it is held that they incorporate the
more detailed procedures set forth in 8 CFR 103.2(b).
(2) In the absence of indication in the instant revocation proceedings that petitioner's
eounterevidenoa was taken into conaideration; that petitioner was aware of any discrepancies between her own statement and that of beneficiary, or that she had an
opportunity to explain any apparent contradictions before decision was rendered, the
record is remanded to afford petitioner an opportunity to examine the adverse evidence,
to rebut it, and to offer additional evidence in behalf of her vim petition.

ON BEHALF OF :PETITIONER: Pro se

The United States citizen petitioner appeals from the July 9, 1975
decision of the district director revoking his prior approval of her application for immediate relative status for the beneficiary as her spouse under
section

201(b) of the Immigration and Nationality Act. The record will be

remanded to the district director for further proceedings.
The petition was approved onJuly 18, 1973. On June 4, 1975 the district
director notified the petitioner of his intention to revoke approval of the
petition on the basis of an investigation conducted by the United States
Consulate in Santo Domingo, Dominican Republic. He gave the petitioner 15 days to present any counterevidence which might prevent such
action. On June 19, 1975 counsel for the petitioner submitted documentary evidence in response to the adverse information referred to by the
district director in his notice of intention to revoke.
The district director's final decision is an almost verbatim repetition of
the statement is his notice of intention to revoke. It is not clear from his
decision whether or not he had taken the petitioner's counterevidence
into consideration. Moreover, the summary reports of the American
Consul in Santo Domingo, the Vice Consul, and another partially iden524

Interim Decision #2454
tified individual refer to inconsistencies in interviews and question-andanswer statements which do not show that the petitioner was aware of
any discrepancies between her own statement and that of the beneficiaxy,
or that she had an opportunity to explain any apparent contradictions for

the district director's consideration before he made his decision. See 8
CFR 103.2(b)(2); Matter of Holmes, 14 I. & N. Dec. 647 (BEA. 1974);
Matter of Arteaga-Godoy, 14 I. & N. Dec. 226 (BIA 1972).
In proceedings to revoke approval of a visa petition, the petitioner is
entitled to the same rights to inspect the record of proceedings which
constitutes the basis for the decision, to rebut the evidence contained
therein, and to have his explanations, rebuttal, or evidence included in
the record of proceedings before the decision is rendered, as in the
ordinary visa petition procedure. Although the regulations governing the
procedure for revocation of a petition are not so explicit, 8 CFR 205.3, we
hold that they incorporate the more detailed procedures set forth in 8
CFR 103.2(b).
Accordingly, we shall remand the record so that the petitioner may
have an opportunity to examine the adverse evidence, to rebut it, and to
offer additional evidence in behalf of her visa petition, and so that the
district director, upon consideration of all the evidence, may render a new
decision.
ORDER: The record is remanded to the District Director for further
proceedings in accordance with the above opinion and for the entry of a
new decision.
Warren R. Torrington, Member, Concurring:

I concur in the remand to the district director and in the holding that, in
proceedings to revoke the approval of a visa petition, the petitioner is
entitled to the rights which 'a petitioner has in original visa petition
proceedings. However, I have found nothing in the provisions of 8 CFR
205.3 to support the majority's holding "that they 'incorporate' the more
detailed procedures set forth in 8 CFR 103.2(b)"; and I, therefore,
disagree with that —in my view, quite unnecessary—further holding.

525


aterim Decision #2110

MATTER OF LEBLANC
In Visa Petition Proceedings
LOS—N-12900
Decided by Regional Commissioner November 26, 1971
The statute does not require that the beneficiary of a visa petition to accord
nonimmigrant classification as an intra-company transferee under section
101(a) (15) (L) of the Immigration and Nationality Act, as amended, be
coming to an existing office, branch or other establishment of his employer
in order that the petition may be approved. While there may be a question
as to whether or not the petitioning company actually has an established
and existing affiliate in the United States at this time, where, as the record in the instant case shows, the petitioner has acquired physical premises necessary to its functions here which evidences the bona fides of its
intended operation in this country, the petition may be approved if otherwise approvable.
ON BEHALF OF PETITIONER: Paul Gutman, Esquire
1900 Avenue of the Stars, Suite 1060
Los Angeles, California 90067

This case comes before the Regional Commissioner on appeal
from the decision of the District Director, Los Angeles, who denied the petition on October 7, 1971, stating in pertinent part
that: "Inasmuch as the services of the beneficiary are requested
to participate in the organization of the United States branch,
not yet in existence, it is concluded that the beneficiary does not
meet the criteria for classification as intra-company transferee
under section 101(a) (15) (L) of the Act, as amended."
The petitioner, Thriftmart Ltd., is a corporation organized and
existing under the laws of the province of Ontario, Canada, since
1964, intending to conduct its business in the State of California
under the name of Cosmetiques Herbelle. It intends to promote
the door-to-door retail sales of cosmetics on credit as it has been
doing in Canada. The petitioner has submitted a certificate of
qualification certifying the petitioner, dba Cosmetiques Herbelle,
as a Canadian corporation qualified to transact intrastate business
in California. The petition was filed on October 7, 1971, under

Interim Decision #2110
section 101 (a) (15) (L) of the Act seeking the services of the beneficiary as an intra-company transferee.
The beneficiary is a 26-year-old married male, a native and citizen of Canada. The petitioner has stated that beneficiary "has
unique, peculiar and specialized knowledge and talent in the
screening, recruiting, contracting with and training of persons to
participate in a sales program selling cosmetics marketed by petitioner. Mr. LeBlanc has been employed by petitioner for more
than four years and, in respect of the last year and a half, has
had full charge of screening, recruiting, contracting with and
training sales personnel and has supervised sales of our products
for the entire western Canadian area."
The petitioner states that the beneficiary is to be employed in
California for twelve months at $200.00 a week with "override
commission" and will be hiring and training sales personnel to
sell cosmetics on credit.
Section 101 (a) (15) (L) of the Act describes an intra-company
transferee as follows:
An alien, who immediately preceding the time of his application for admission into the United States, has been employed continuously for one year by
a firm or corporation or other legal entity or an affiliate or subsidiary
thereof and who seeks to enter the United States temporarily in order to
continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive or involves specialized knowledge....

In support of the petition, the petitiorier submitted a statement
dated September 24, 1971, stating that at the present time there
were no employees in the proposed Los Angeles affiliate branch
but that "It is intended that Mr. LeBlanc set up the Los Angeles
branch office. Currently the address of the petitioner is that of
petitioner's firm of accountants until such time as a formal
branch office facility can be established by Mr. LeBlanc. It is intended that the beneficiary will come to the United States to participate in the establishment and commencement of business in
Los Angeles."
On appeal, counsel for petitioner concedes that at the time the
petition was filed there were no employees in the "proposed" Los
Angeles branch office and that it had been petitioner's intention
to use the beneficiary "to set up the Los Angeles office." He goes
on to state that "since that time conditions have changed significantly and materially justifying reconsideration of petitioner's
petition and of the District Director's decision."
Counsel now states that the petitioner has leased an office and
warehouse in Los Angeles and, as evidence, has submitted copy of
817

erim Decision #2110
'Standard Form Business Property Lease" dated November 8,
11, and showing the lease to start January 1, 1972, and run for
'ee years. An addenda to the lease indicates that the petitioner
Ly have limited access to the premises prior to January 1, 1972,
on the signing of the lease. Counsel also states that petitioner
s employed an "American national" resident of California as
,s California manager in full charge of petitioner's office in the
iited States and who will supervise the conduct and activities
the beneficiary."
Counsel then states that "Petitioner is in the process of establing its inventory of merchandise for marketing and sale in
ilifornia which merchandise, upon receipt from time to time,
ill be stored in petitioner's warehouse facilities at the above
)ted address. As a consequence petitioner can now be deemed to
an operating branch of petitioner's Canadian based business
ith physical and managerial facilities and with active, resident
Lanagement. All that beneficiary will be doing will be the reruiting and training of a sales force to facilitate what has now
ecome a going business of applicant."
The statute requires that the beneficiary, immediately precedIg the filing of the petition, had been employed continuously for
ne year by petitioner and that he seek to enter the United States
emporarily in order to continue to render his services to the
ame employer, the petitioner, or a subsidiary or affiliate in a Caiacity that is managerial, executive or involves special knowldge.
The statute does not require that the beneficiary be coming to
,n existing office, branch or other establishment of his employer
n order that the petition may be approved. While there may be a
[uestion as to whether or not the petitioning company actually
ias an established and existing affiliate in the United States at
his time, where, as the record in this case shows, the petitioner
las acquired physical premises necessary to its functions here
Nhich evidences the bona fides of its intended operation in this
:ountry, the petition may be approved if otherwise approvable.
The record shows that beneficiary had been employed for more
than a year in Canada by the petitioner in the recruiting, hiring
and training of sales personnel in door-to-door credit sales techniques which requires and involves specialized knowledge, and
that he is expected to perform the same services for an affiliate
branch in the United States.
On careful review, we find that the beneficiary qualifies as an
intra-company transferee and is eligible for classification under

Interim Decision #2110
section 101(a) (15) (L) of the Act. The appeal will be sustained
and the petition granted.
ORDER: It is ordered that the appeal be sustained and the petition granted.

819


11A

Eli OF S--

In EXCLUSION Proceedings
A-10067819
Board decision of October 9, 1981

Decided by the Attorney General January 22,1962
Board decision of January 24, 1962
Excludability—Deportability—Effect of adjustment of status, section 245, 1952
Act, on ground which existed prior thereto.
(1) Adjustment of status acquired under section 245 of the Act does not
immunize an alien from the exclusion and deportation provisions of the
Act. These provisions apply equally to aliens lawfully admitted for permanent residence and to those who have had their status adjusted under section 245 to that of permanent residents.
(2)

The five- year limitation contained in section 246 applies t -) the Attorney

General's authority to rescind adjustment of status and does not bar exclusion or deportation thereafter on grounds which existed prior to the adjustment and which would also have supported rescission, If timely known.
(3) In the instant case, the lapse of more than five years since the applicant's adjustment of status under section 245 does not bar exclusion proceedings based on fraudulent procurement of an entry document prior to
the adjustment.

NOTE: Matter of V—, 7-363, ,distinguished.
ExcLunAnr.r.: Act of 1952—Section 212(a) (19) [8 U.S.C. 1182(a) (19)]-0b-

tamed visa by fraud or misrepresentation (1949).
BEFORE THE BOARD

(October 9, 1961)
DISCUSSION: Tho Board upheld the ruling of the special inquiry officer authorizing the applicant's admission to the United
States as a returning resident. The Commissioner believes the applicant is inadmissible and requests that the decision of the Board be
certified to the Attorney General for review. The Board has entered
two orders : on June 2, 1961, the appeal of the District Director was
dismissed, and on August 17, 1961, a Service motion for reconsideration was denied Request for review is under 8 CFR 3.1 (b.) (1) (iii).
In April 1955 the applicant secured an adjustment of status under
section 245 of the Immigration and Nationality Act (8 U.S.C. 1255)
548

which then permitted a lawfully admitted nonimmigrant to obtain
the status of an alien lawfully admitted for permanent residence.
The applicant was ineligible for the adjustment but it was not
rescinded within the five-year time limit permitted by law (section
246(a), Immigration and Nationality Act; 8 U.S.C. 1256(a)). The
Board believes that in the absence of timely rescission the applicant
cannot be denied any nondiscretionary rights which are the incidents
of proper adjustment. The Service disagrees with this view, at least
as it applies to an alien who has departed from the United States
and seeks to reenter.
The law and facts have been fully stated in previous orders.
Briefly, in 1949 the applicant entered the United States on a displaced person's visa which he had fraudulently procured. In 1951
he abandoned the United States and went to South America where,
shortly after his entry, he assumed the name of A—S—, allegedly
a fictitious name and one which he has used to date. In 1954 he
entered the United States as a visitor under the name of A—S—.
In 1955, using the Bailie of A S , he improperly secured the right
to be a permanent legal resident of the United States under section
245 of the Immigration and Nationality Act. He was not entitled to
the adjustment because he had not been lawfully admitted; he had
been inadmissible at the time of entry as one who had procured a
visa by fraud in 1949. The adjustment of status was not rescinded
within the five years during which such action could be instituted.
The applicant has reentered the United States from time to time in
1957 on a reentry pe_la'A issued in the name of A—S----, and on
other occasions, as he is attempting to do at the present, on the basis
of a Form I-151A -a(alien registration card) which at the time of
application for admission (August 1960) was sufficient to authorize
the admission of an alien admitted for permanent residence returning to resume residence (24 F.R. 2583, April 3, 1959).
The Service apparently agrees that where there has been no rescission of the adjustment of status, there can be no expulsion of an
alien (who did not depart after the adjustment) on grounds which
made the alien ineligible for the adjustment. Thus, we would assume
there is agreement that the alien who was ineligible for adjustment
because he is a criminal, a subversive, or a person who procured a
—

—

document by fraud can enjoy the fruits of his adjustment as long as

he remains in the United States. However, the Service feels that in
exclusion proceedings, even though there has been no rescission, it
is proper to exclude the alien on the grounds which it could not have
used to deport him prior to his departure. Thus, the examining
officer urges that the applicant is inadmissible under section 212(a)
(19), Immigration and Nationality Act (8 U.S.C. 1182(a) (19)), because he had procured a visa by fraud in 1949. However, the Board
549

is of the belief that since Congress provided that the adjustment
could not be questioned after the five years which have passed since
the adjustment, the applicant must be considered as having been
admitted for permanent lawful residence. It follows, in the Board's
opinion, that any attempt to exclude the applicant on the ground
which made him ineligible for the adjustment is an attack upon the

status which Congress stated should no longer be questioned. The
adjustment gave the applicant a legal status in the United States.
We can see no logical reason why Congress which desired to protect
this status by a statute of limitations, even though the status had
been acquired by one who was not eligible, should wish to withdraw
that protection because the alien had left the country and reapplied
for admission on the basis of the very adjustment of status which

they had protected. Since one lawfully admitted for permanent
residence is entitled by law to reenter to resume residence on the
basis of an alien registration card following a visit such as the applicant made, he must be permitted to enter.
We do not know why Congress provided a statute of limitations to
prevent attack upon the right of permanent residence belonging to
an alien who had secured it by an adjustment, but failed to provide
similar protection for the one who secured his right through the
visa process; however, there is a difference, and it is this difference
which now prevents the applicant's right to permanent residence

from being questioned because he was ineligible to receive it.
The Service ,motion raises a matter which was not an issue at
the exclusion proceeding. The motion urges that the applicant is
inadmissible because, although his true name is -J—, he used the
name S on the reentry permit in 1957 and used, and is attempting
to use, a Form I-151A issued in the name of S— (he received it as
part of the adjustment of status). We do not believe that the ap

plicant is inadmissible because of his use of the name S . He
did not adopt it to defraud this Government. It is the name by
which he has been generally known since 1951 (United States ex rel.
Leibowitz v. Sehlotfeldt, 94 F.2d 263 (C.A. 7, 1938)). Moreover,
since it is the Board's belief that it must regard the applicant for
the purpose of immigration laws as the S— who obtained the right
to legal residence in 1955 with all the incidents flowing out of that
right, we do not believe that his use of the name under which he
received the adjustment can be considered a new and additional
violation of the immigration lasvb. Tu so consider it, would be to

do indirectly what cannot be done directly—challenge the applicant's
status as a lawful resident acquired by the adjustment.
To complete the discussion, we would point out that. the adjust-

of status obtained by the applicant would not free him from
liability to exclusion or expulsion if an act committed by him after

ment

550

the adjustment placed him in any of the categorico which make

an

alien excludable or deportable.
ORDER: At the request of the Commissioner under the authority
contained in 8 CFR 3.1(h) (1) (iii), the case is referred to the Attorney General for review of the Board's decision.
BEFORE THE ATTORNEY GENERAL
(January 22, 1962)

The Board of Irrunigration Appeals, pursuant to 8 CFR 3.1(h) (1)
(iii), has, at the request of the Commissioner of Immigration and
Naturalization, referred its decision of June 2, 1961, in this case to
me for review. The Board of Immigration Appeals affirmed an
order of a special inquiry officer holding that the applicant was admissible into the United States AS a returning lawfully admitted
resident alien. The decision raises a novel and important question of
interpretation of the immigration laws.
The question arises in the following way: Applicant, whose true
identity is apparently B—J—, a native of Czechoslovakia, first entered the United States in 1949 on a displaced person's immigration
visa issued to a native of Germany, an identity which
the applicant had assumed in applying for the visa. In 1951 applicant abandoned his residence in the United States and left for South
America. After passing through Brazil on a transit visa, he arrived in Paraguay. Although five years of residence in Paraguay
is a prerequisite to the acquisition of Paraguayan citizenship, applicant apparently acquired Paraguayan citizenship within several
months of his arrival. For purposes of his Paraguayan naturalization he assumed the identity of A—S--, a native of Germany. In
1953 he entered Brazil, and in January 1054 he was admitted to
the United States as a visitor under the name of A—S—. In
September 1954 he was married to a lawfully resident alien. In

April 1955, pursuant to section 245 of the Immigration and Nationality Act (66 Stat. 217 (1952)), applicant, under the assumed
identity of A—S—, had his status adjusted to that of an alien
lawfully admitted for permanent residence. Section 245, then, as
now,' required, among other things, that an alien to be eligible
far adjustment had to be admissible to the United States for perStat. 505 (1960), 8 U.S.C. (Supp. TI) § 1255: "(a) The status of an

alien

. may be adjusted by the Attorney General, in his discretion and

under such regulations as he may prescribe, to that of an alien lawfully

admitted for permanent residence if (1) the alien makes an application for
such adjustment, (2) the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application Is
approved."

551

manent residence under the Act. If applicant had at one time
procured a visa by fraud or willful material misrepresentation, this
would have made him ineligible for adjustment. 2
In 1956 applicant spent several hours in Mexico obtaining a
divorce from his wife. Between 1957 and 1960, he left and reentered the United States several times. On reentry he either presented the alien registration card issued to him as A—S--- or reentry
permits also issued to him in that name.
On applicant's last attempt to reenter the United States at Miami
Beach, Florida, in August 1960, the Immigration and Naturalization Service sought to exclude him under section 212(a) (19) of
the Act 2 on the ground that his initial entry in 1949 was procured
by fraud or willful misrepresentation of a material fact. The special inquiry officer who heard the exclusion proceeding, although
concluding that the applicant had procured his 1949 displaced person's visa by fraud or willful material inisrepiesentation, held that
the passage of five years since the adjustment of applicant's status
barred his exclusion on a ground which existed prior to such adjustment. While Congress in section 246 of the Act, 8 U.S.C. 1256,
authorized the the Attorney General to rescind action granting adjustment if the alien was not in fact eligible for such adjustment, 3 he
pointed to the fact that the Attorney General's rescission authority
was limited to five years following the adjustment. It was his
view that exclusion or deportation proceedings based upon grounds
which would also have supported rescission were indirect attacks
on the adjustment of applicant's status to that of an alien lawfully
admitted for permanent residence and that Congress, in barring
rescission of the adjustment after five years, also intended to bar
such indirect attacks. Since the fraudulent procurement of a visa

in 1949 would have been grounds for rescission of the applicant's
status, and since the passage of more than five years barred rescission, the special inquiry officer concluded that applicant could not
3 Section 212(a) (19), 8 U.S.C. 1182(a) (19), excludes from admission into
the United States "[a]ny alien who seeks to procure, or has sought to procure, or hue procured a vino or other documentation, or seeks to enter the
United States, by fraud, or by willfully misrepresenting a material fact."
3 ". . . If, at any time within five years after the status of a person has
been otherwise adjusted under the provisions of section 245 or 249 of this
AM- or any other provision of lam to that of an alien lawfully admitted for
permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status,
the Attorney General shall rescind the action taken granting an adjustment
of status to such person end cancelling deportation in the case of such person
if that, occurred and the person shall thereupon be subject to all provisions
of this Act to the same extent as if the adjustment of status had not been
made."

552

now be excluded on that ground: 3 Accordingly, he directed the applicant's admission. The Board of Immigration Appeals has affirmed
on the basis of the special inquiry officer's opinion.
I cannot agree that an adjustment of status under section 245 and
the five-year limitation on rescission provided in section 246 have
the effects attributed to them by the special inquiry officer and the
B
. oard of Immigration Appeals.
Neither the exclusion provisions of the Act, section 212 (8 U.S.C.
1182), nor its deportation provisions, section 241 (8 U.S.C. 1251),
contain statutes of limitations. 5 Consequently, an alien who upon
entry acquires the status of an alien lawfully admitted for permanent
residence is nevertheless subject to deportation at any future time, or
exclusion if he seeks to reenter the United States after departure,
for conduct preceding his acquisition cf that status. By virtue of
the decision below, an alien initially admitted as a nonimmigrant
who subsequently acquires the status of a lawfully admitted permanent resident through the adjustment procedure provided for in
section 245 of the Act, acquires, through the five-year limitation
on rescission of his status, the additional advantage of a statute of
limitations immunizing him from exclusion or deportation on
grounds founded on events preceding the acquisition of his status.
There is no indication that Congress intended to afford such an
advantage to one acquiring permanent resident status by adjustment under section 245. That section was first enacted in 1952. 66
Stat. 217. Prior to that time, an alien initially admitted as a nonimmigrant could only change his status to that of an alien lawfully
admitted for permanent residence by undergoing a complicated
procedure called preexamination. Pursuant to that procedure, the
alien was required to leave the United States in order to obtain
an immigration visa from a consul and reenter. See, Gordon and
Rosenfield, Immigration Law and Procedure, 711 12 (1959). This,
-

of course, entailed both a burdensome expense and inconvenience for
the alien. It did not, however, with respect to deportation or exclusion proceedings thereafter commenced, put him in any better
position than an alien initially admitted for permanent residence
without preexamination. The adjustment procedure of section 245
was "specifically devised to obviate the need for departure and re4 The Service apparently conceded that deportation Is barred but contended
that this did not affect exclusion. I do not believe the question in this case
can be satisfactorily resolved on the basis of such a distinction.

pct nut

failb to provide e ntatate of limitations for depot - tability

but since the grounds for deportability which it establishes apply retroactively
to conduct preceding its enactment (section 241(d), 8 U.S.C. 1251(d)), it has
been construed to apply to such conduct even in cases where the period of
limitations provided by previous law would have barred
r': 11Pli.

v. Carson., 553 ❑ .S. 685 (1557).

553

deportation.

Leh-

entry in the cases of aliens temporarily in the United States. . . ."
H. Rept. No. 1365, 82d Cong., 2d Sess., p. 63 (1952). I find nothing
to suggest that the section was intended to ultimately immunize an
alien from deportation or exclusion thereafter on grounds which
would have made him initially inadmissible. In 1958, subsequent
to this applicant's adjustment of status, Congress liberalized the
adjustment procedure of section 245. The Senate Report accompanying the amendment of that section was careful, however, to
emphasize that the amendment was not designed either to "benefit
the alien who has entered the United States in violation of the law"
or to "affect the statutory standards of eligibility for immigration
into the United States." S. Rapt. No. 2133, 85th Cong., 2d Sess.,
p. 2. There is no reason to suppose that section 245, as originally
enacted, had any broader purpose.°
From this background, it seems clear that section 245 was intended to perform no other Riot:Lion than to permit nonimmigranta
to attain permanent resident status without leaving the United
States. Nor is there any basis for believing that the five-year limitation in section 246 on the Attorney General's rescission authority has
the effect of broadening the benefits conferred by a section 245
adjustment so as to place nonirr migrants who thereby acquire the
status of aliens lawfully admitted for permanent residence in a better position than those who have initially entered as permanent
residents.
Section 246 permits the Attorney General to rescind adjustment
of status within five years. In the words of the statute, rescission
places an alien in the same position "as if the adjustment of status
had not been made"; that is, one whose status was adjusted under
section 245 to that of an alien "lawfully admitted for permanent
residence" is, through rescission, returned to nonimmigrant status.
Consequently, the effect of the five-year limitation on rescission is
simply to bar the Attorney General from returning an alien with
adjusted status to the category of nonimmigrant. I cannot agree
6 That Congress did not intend section 245 to confer any protections against
deportation or exclusion is brought out more clearly by contrasting its proviSilMIN with those of beclivu 234 of the Act (8 T.T.S.O. 1251), and section 24.9 of
the Act (8 U.S.C. 1259). Section 244 allows the Attorney General to suspend
the deportation of an alien who is found to be deportable. Section 249 now
authorizes him' to make a record of lawful admission for an alien except

where the alien is deportable on grounds specified in that section. Section 949

has been read as authorizing the Attorney General to waive known grounds
of deportation other than those specified in that section. Matter of L—F—Y—,
8-601 (1960). Thus, these provisions confer upon the Attorney General a
"pardoning" authority. In contrast, section 245 permits adjustment only where

the applicant is "eligible to receive an immigrant visa and is admissible to the
United States for permanent residence." Section 245 does not give Attorney
General "pardoning" authority.

554

that, in performing this narrow function, the. time limitation imposed on rescission by section 246 was intended to be read as qualifying the express authority provided by the Act to deport or exclude aliens on proper grounds without time limitation. Such an
extreme interpretation would require either specific statutory lan■_tuage or at least a clear indication in the legislative history that.
Congress intended the statute to be so read. There is neither.?
I recognize that as I construe the time limitation in section 246

it may be of little practical value to the alien. While the limitation
obviously prevents the Attorney General from returning the alien
to the category of a nonimmigrant on the basis of conduct which
would have justified a rescission of adjustment, it could be argued
that this entails no real benefit to the alien since the same conduct
nevertheless can be utilized independently as a ground for his deportation or exclusion. This makes it difficult to ascertain precisely why Congress enacted the time limitation. But whatever
the purpose Congress may have intended the time limitation to
serve, it is clear that it could not, consistently with the policies

underlying the provisions of the immigration laws here involved,
have intended to confer upon an alien of adjusted status the benefit
of immunity from exclusion or deportation for prior conduct. 8
7 The time limitation provision is apparently the result of a recommendation
made by the Senate Committee on the Judiciary in its study of the immigration and naturalization systems of the United States. S. Rept. No. 1515, 51st
Cong., 2d Sess., p. 611 (1950). No explanation is given there of the purpose to be attributed to the provision. Nor is it discussed at later points in
the legislative history mentioning the time limitation. See II. Rept. No. 2096,
82d Cong., 2d Sess., p. 128 (1952) ; H. Rept. No. 1365, 82d Cong., 2d Sess.,
p. 63 (1952) ; S. Rept. No. 1137, 82d Cong., 2d Sess., p. 26 (1952).
8 Congrese reasons for providing the five-year limitation are nowhere clearly
indicated. See note 7. supra. As far as I can determine, the significance

to the five-year limitation was that it cut off the
availability of a procedure which, although to all intents and purposes would
which Congress attached

establish deportability, permitted the Attorney General to act more informally and expeditiously than he could in a deportation proceeding. The rescission procedure apparently resulted from congressional recognition that a
means more informal and expeditious than deportation was needed to correct
mistakes made in granting permanent residence to nonimmigrant aliens
through adjustment of status. Experience under preexamination had shown
that such mistakes were more likely to occur where eligibility for permanent
resident status was determined by government officers located in the United
States who did not ordinarily have the first-hand information available to

American consuls located in a prospective immigrant's native country. See
S. Rept. No. 1515, blot Cong., 2d Sess., p. 606 (1950). This view of rescission
is borne out by the fact that section 246 in authorizing rescission does not
provide the explicit and detailed procedural requirements laid down for de1252(b)). At
portation proceedings by section 242(b) of the Act (S
the same time Congress must have been aware that rescission by returning
the alien to nonimmigrant status, in fact, established his deportability on the
555

The special inquiry officer, in reaching a contrary conclusion,
relied in part on an earlier Board decision, Matter of V—, 7-363
(1956). There, deportation proceedings were brought against an
alien on the ground that she had entered the United States without a valid entry document as required by section 212 (a) (20), 8 U.S.C.
1182(a) (20). She had presented a Form I 151A_ (alien registration
card) to obtain entry. The card had been issued pursuant to the creation of a record of lawful admission for permanent residence under
an earlier version of section 249 of the Act, 66 Stat. 219 (1952). It
appeared, however, that she obtained her record of lawful admission
by concealment of a material fact. Accordingly, the Service contended
that the Form I-151A which she obtained on the basis of that record
was not a valid entry document. The Board held, however, that since
her record of lawful admission had not been rescinded in accordance
with section 246 she could not be deported on the ground that she had
entered without a valid entry document. The special inquiry officer m
the instant case has read Matter of V—, supra, as standing for the
general proposition that an alien registered for lawful admission
under section 249, or whose status is adjusted under section 245, cannot
be deported or excluded on grounds which existed prior to such registration or adjustment without first rescinding that action, and if, as
-

here, rescission of adjustment is barred by the five year limitation in
-

section 246, exclusion is also barred.
Matter of V , supra, is not controlling in the instant case. The
only question before the Board in Matter of V— was whether the
Service was entitled to establish the alien's ineligibility for the
record of lawful admission in a deportation proceeding where the
rescission procedure, specifically provided to determine that issue,
was available. It did not have before it the question whether, had
rescission no longer been available due to the lapse of five years,
the record of lawful admission would not only bar deportation or
exclusion on a ground which required an explicit showing that the
record was improperly made, but on a preexisting ground which,
—

ground that he had over3tayed the period of hie admission. The five-year

limitation would thus seem to be a recognition that it would be unfair to
permit indefinitely such serious consequences to be effected through a somewhat informal procedure. After five years, the Attorney General is, therefore,
required to correct mistakes in granting permanent resident stntlic to those
initially admitted as nonimmigrants in the same manner as in the case of
other aliens, i.e., through deportation. I should note in passing that while
Congress may have permitted the Attorney General to make use of more informal procedures in rescission, in practice under the governing regulation
there is little difference between the safeguards afforded an alien in deportation and that afforded him in rescission. See 8 CFR 246.12(a) and (b).
556

would
also have supported a rescission.
I conclude that since section 246 only limits the Attorney General's
authority to rescind an adjustment of status, the lapse of more than
five years since applicant's adjustment does not bar an exclusion
proceeding based upon the alleged fraudulent procurement of an
entry visa prior to his adjustment of status. However, because
the determination by the special inquiry officer that the 1949 visa
was procured by fraud or material misrepresentation in violation
of section 212(a) (19) was made prior to my decision of October 2,
'136, in which I formulated
1961, in Matter of S— and B—C—,.9
standards for determining questions of materiality arising under that
section, I am remanding this case to the Board for such action as is
consistent with my opinion in Matter of S— and B—C—, supra.
The Service in its motion for reconsideration, denied by the
Board on August 17, 1961, also contended, for the first time, that
applicant's entry into the United States under the name of A—S--,
and subetilleoi 14, the adjustment of his status, provided an additional ground for excluding him. This ground was neither urged
nor considered in the hearing before the special inquiry officer. It
has been held that grounds for exclusion presented but not passed
upon at the hearing may he considered on administrative appeal
(United States ex rel, Jelic v. District Director, 106 F.2d 14, 19
(C.A. 2, 1939) ). I feel, however, that it would be unfair for the
altltuugli independently sufficient as a basis for exclusion,

Board, on appeal, or the Attorney General, on review, to consider

grounds not even presented at the hearing before the special inquiry
officer. I, therefore, do not consider the additional ground for
exclusion now urged by the Service.
BEFORE THE BOARD

(January 24, 1962)
ORDER: In accordance with the opinion of the Attorney General
of January 22, 1962, hereunder, the case is remanded to the special
inquiry officer for further consideration in accordance with that
opinion, and Matter of S— and B—C—, 9 436.
-

557


Interim Dacision #2354

MATTER OF

LT.Th

In Deportation Proceedings
A-19036861
Decided by Board March 18, 1975
In order for en alien to qualify for exemption from the labor certification requirement of
section 212:a)(14) of the Immigration and Nationality Act as an investor under 8 CFR
212.8(b)(4), he must be actively in the process of investing at least $10,000 in a business.
Conditional intent to make the investment is not sufficient under the regulation. The
record is remanded to the immigration judge for further proceedings to permit respondent opportunity to further document his claim.
CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]Nonimmigrant, remained
longer.
ON REHATIP or SERVICE

ON BEHALF OF RESPONDENT:

Elmer E. Poston, Esquire
770 Kapiolani Blvd.
Honolulu, Hawaii 96813

David L. Milhollan
Appellate Trial Attorney
Gary Y. Fujiwara
Acting Trial Attorney

The alien respondent has appealed from the September 29, 1972
decision of an immigration judge in which the respondent was found

deportable, was denied adjustment of status under section 245 of the
Immigration and Nationality Act, and was granted the privilege of
voluntary departure. The record will be remanded for further proceedings.

At the hearing below, counsel for the respondent attacked the manner
in which these proceedings were instituted. However, as was acknowledged by counsel at oral argument, and as was set forth in the acting
trial attorney's brief, the Service complied with the pertinent regulations in serving the order to show cause on the respondent. The respondent has not been denied due process.
The respondent is a native and citizen of Tonga. He has conceded
deportabilLy as a nonimmigrant visitor who has remained beyond the
authorized length of his stay, and the only issues on appeal involve his
application for section 245 relief.
206

Interim Decision #2354
The respondent is seeking adjustment of -status as a nonpreference
immigrant, He claims that he qualifies for an exemption from the labor
certification requirements of section 212(a)(14) as an "investor" within
the meaning of 8 CFR 212.8(b)(4). The respondent formally presented
his "investor" claim prior to the 1973 amendment of the regulation. His
claim will therefore be judged by whichever formulation of the regulation is more favorable to him Matter of Ko, 14 I. & N. Dee. 349 (Dep.
Assoc. Comm. 1973); Matter of Heitland, 14 I. & N. Dee. 563 (BIA
1974).
Prior to his visit to the United States, the respondent had been a

merchant and had resided in American Samoa. The respondent sold his
businesses in American Samoa before journeying to the United States.
His purpose in coming here was to obtain medical treatment for his son,
a native of American Samoa.
The respondent operates a landscape and yard service in Hawaii. He
commenced this business with an investment of approximately $7,000.
At the date of his hearing, he evidently had added to this initial investment, but had still devoted less than $10,000 to the enterprise. He
employs two United States citizen laborers, and he appears to have
accumulated over $9,000 which he plans also to invest in the business
provided he receives adjustment of status. The respondent contends
that he is "actively in the process" of investing these additional funds,
and that this amount must be added to his actual investment in the
business to determine whether he qualifies under the regulation.

Under either formulation of the "investor" regulation, capital which is
"actively in the process" of being invested may be employed in computing the amount of the alien's investment. This respondent, however, has
not committed his new funds to the business; he simply intends to
purchase new equipment should he receive status as a permanent resident. While we understand the respondent's hesitancy in acting in the
face of uncertainty, such a "conditional intent" to invest does not qualify
under 8 CFR 212.8(b)(4).
We shall not attempt to set forth a complete definition of this phrase.
However, we hold that an alien is not "actively in the process" of making
an investment if he merely possesses uncommitted funds which he
intends to devote to his enterprise in the event that he receives adjustment of status under section 245. Since the amount of the respondent's
investment, as reflected in the record, is under $10,000, he cannot
qualify as an "investor" under the present version of the regulation.

The respondent predicated his "investor" claim on our decision in
12 L & N. Dec. 86 (BIA 1967), which was decided
under the earlier version of the regulation. However, in Matter of
Heittand, supra, we overruled Finau. Furthermore, this case arose
prior to Matter of Ahmad, 15 L & N. Dee. 81 (BIA 1974), and the
Matter of Finau,

207

Interim Decision #2354
respondent Las not sufficiently documented his "investor" claim within
the contemplation of that decision.
We shall remand the record to the immigration judge in order to give
the respondent the opportunity to further document his investment, and
in order to permit the immigration judge, to determine whether the
respondent may qualify as an "investor" under the approach set forth in
Matter of Heitland, supra.
ORDER: The record is remanded to the immigration judge for
further proceedings.
Chairman David L. Milhollan abstained from consideration of this
ease.

208


Interim DeCision #1817

MAI VIA OF PIZA.BRO
In Visa Petition Proceedings
A-17176989
Decided by Regional Commissioner November 20,1967'
Beneficiary/petitioner, who has an undergraduate degree (B.S.) in psychology,
is not solely by reason of such degree a member of the professions within the
meaning of section 101(a) (32) of the Immigration and Nationality Act, as
amended, and, therefore, is ineligible for preference •classification under
section 203(a) (3) of the Act, as amended, as a psychologist
ON BEHALF or PErmonEn: Hiram W. Ewan, Esquire
1011.N. Broadway, Suite 203
Los Angeles, California 8001E

This case comes forward on appeal from the decision of the District
Director who denied the petition on September 14, 1967 in that petitioner/b eneficiary did not meet the Minimum edimitiOnal requirements for recognition for professional status in the field 9f psychology.
Oral argument was requested and granted. Counsel for petitioner
appeared as scheduled.
The petitioner is a 26 year old single female, a native and citizen
-

-

of the Philippines. She was admitted to the United States at Honolulu, Hawaii on October 24, 1965 as a visitor and received extensions
of stay in that status to April 23, 1967. On April 6, 1967 she filed the
present petition in her own behalf for preference classification - under
section 203(a) (3) of the Immigration and Nationality. Act, as
amended, as a psychologist.
The record shows that the petitioner graduated from the University
of Santo Tomas, Manila, Philippines on March 24, 1961 with a Bachelor of Science degree in psychology. She then entered the school of
medicine for one semester and then dropped out. She claims that she

subsequently enrolled for graduate work in psychology but also
dropped that. She has 'pretented evidence to indicate that, from November 22, 1960 to hie 300.961 (six 'Months) she Was a clinical
537

Interim Decision *1817
psychology intern in Quezon City, Philippines. From February 1965
to October 1965 she was employed as a, receptionist with an insurance
company in the Philippines.
On appeal counsel presented a registration card issued to the beneficiary for the year 1967 by the State of California Department of
Public Health showing that she is registered as a "clinical laboratory
technologist trainee". Counsel argued that a Bachelor of Arts degree
in psychology was enough to qualify the beneficiary as a professional
and stated that there were numerous occupations in which it had been
determined that a baccalaureate degree in a given field qualified such
person for professional status and that advanced degrees were required
only for highly specialized work. He stated. that credit should be
given to the fact that she had six months internship, 12 units in medicine and had started graduate work in psychology, which she later
dropped.
The certification by the Secretary of Labor pursuant to section 212
(a) (14) of the Act has been issued.
Section 203 (a) (3) of the Immigration and Nationality Act provides
for the issuance of visas "to qualified immigrants who are members of
the professions, or who because of their exceptional ability in the sciences or arts will substantially benefit prospectively the national economy, cultural interests, or welfare of the United States".
Section 101(a) (32) states: "The Una 'profession' shall include but
• not be limited to architects, engineers, lawyers, physicians, surgeons,
and teachers in elementary or secondary schools, colleges, academies, or
seminaries."
The occupation of psychologist is not included in section 101(a) (32)
of the Act quoted above. The issue to be decided in this case is whether
the petitioner, by reason of her having acquired an undergraduate
degree in psychology, will qualify her for recognition as a. member of
the professions.
In the Motto. of Asuncion decided by the Regional Commissioner,
May 17, 1966, Lit. Dec. No. 1600, it is stated:
Examination of the occupations named in section 101(a) (32) of the Act indicates the following characteristics common to all : (1) Recognition as a member
of those professions normally requires the successful completion of a specified
course of education on'the college or university level, culminating in the attainment of a specific type of degree or diploma; and (2) the attainment of such
degree or diploma is usually the minimum requirement for entry into those
occupations.
Thus, not every individual who is graduated from an accredited conege or university is classifiable as a member of the professions. If the degree or diploma he
obtains equips the individual to enter an occupation for which the attainment of
the degree or diploma. is not a realistic prerequisite, that occupation may not be
considered to be a profession. Also, if the degree or diploma obtained is so avoca-

538

Interim Decision #1817
tional in nature that it does not provide the recipient with a background which
can be accepted as a realistic qualification for a specific position, the recipient
would not be classifiable as a member of the professions on the basis of his educational attainment.

While the acquisition of a baccalaureate degree is a minimum academic requirement for recognition as a member of the professions, the
acquisition of such a degree does not automatically and by itself make
the holder a member of the professions. Some occupations require a
degree above the level of a baccalaureate degree to qualify as a professional in their field of study. The definition of professional, quoted
above, includes doctors and surgeons and it is well established that
a baccalaureate degree alone will not qualify a person as a doctor or
surgeon and that advanced degrees are a requisite for recognition in

the professions of medicine and surgery.
In the Matter of ASIA., decided by the District Director, September 13, 1966, Int. Dec. No. 1653, it is held that for recognition as a
member of the professions as a librarian a master's degree is required
and that a baccalaureate degree is inadequate for such recognition.
In the Matter of RoNan, decided by the District Director, October 14, 1966, Int. Dec. No. 1660, it was held that to qualify as a professional dietitian a baccitlaureate degree was not in itself adequate but
that a master's degree was required or a baccalaureate degree plus one
year's internship in a program approved by the American Dietetic
Association.
The Occupational Outlook Handbook published by the Department
of Labor states :
Generally, the master's degree with a major in psychology is the minimum
educational requirement for professional employment in the field. Psychologists
with this degree can qualify for positions where they administer and interpret
psychological tests, collect and analyse statistical data, aid research experiments,

and perform routine administrative duties. In addition, they may teach in colleges, help counsel students or handicapped persons, or—if they have had previous teaching experience -=act as school phychologists or counselors. (See statements on School Counselors and Rehabilitation Counielors.) Because of the
current shortage of psychologists, applicants who have only a bachelor's degree
with a major in psychology may he employed for certain jobs in work related to
psychology, or in other fields where training in psychology is helpful, as in
administration.

It is noted that the statement is made that applicant, with a bachelor's degree with a psychology major, may be employed in relating
fields or where psychology training is helpful. This employment, however, does not give these employees recognition as professional psy-

chologists by reason of their baccalaureate degree or by the nature of
their employment.
539
351-654-69-36

Interim- Decision #1817
The Occupational Handbook, previously mentioned, also states under the heading of "Employment Outlook" :
Employment opportunities for psychologists with doctor's degrees will probably continue to be excellent through the mid-1970s. Psychologists with master's
degrees are likely to be in considerable demand but their opportunities for full
professional employment will be less favorable than those with the Ph.D. degree.

No mention is made of any undergraduate degrees which indicates
that full professional status is considered only for those people with
advanced degrees.
Volume U, Dictionary of Occupational Titles, Third Edition, published by the United States Department of Labor places all occupations
in psychology in the three digit code group of 045 and in the "life
sciences" group, and states that occupations in psychology includes
occupations concerned with the collection, interpretation, and application of scientific data relating to human behavior and mental processes.
Activities are either in the applied 'fields of psychology or in basic
science fields and research. The three digit code group of 045 (occupations in psychology) are further broken down into specialized fields of
psychology and the code group 045.088 and 045.108. In the 045.088
group are included psychologist--comparative, psychological, experimental, developmental, educational, engineering and social. In the
045.108 group are included psychologist—clinical, industrial, personnel, school and counseling.
The Dictionary of Occupational Titles, Volume II, in discussing the
academic training required for recognition as psychologist in code
group 045.055 states:
Generally, a master's degree is the minimum requirement for professional
employment in psychology or in spy of the social sciences in this group. Those
social scientists with this degree qualify for college instructorships in some
schools and many nonteachlug positions in government and industry Psychologists with this degree, however, mainly assist in laboratory experiments, statistical analysis, and construction of tests. In some social sciences, such as
anthropology, training in the field is a requirement for the master's degree.
In most schools a Ph.D. is the usual requirement for a faculty position and
for the more responsible administrative and research positions. Three to six
years of graduate work, and, in some cases, 1 year of internship is usually sufficient to obtain a doctorate.
For the most part, a bachelor's degree is not adequate preparation for entrance
into professional employment in any of the social sciences or in psychology. Some
graduate schools offer temporary positions and assistantships to persons working
on advanced degrees, and some private firms accept economists with this degree
and train Mein in management. Many entry applicants without a graduate degree
obtain beginning routine research and administrative positions in government
and industry in their respective fields.

540

Interim Decision #1811'
It also discusses the academic requirements for those occupations
in psychology under. code.group 045.108 which are involved in guidance and counseling and states:
A college degree is the minimum requirement for entry into this field. In most
eases, education beyond the 4-year college level is required, varying according
to the individual situation.
Most municipal and State governments and private organizations require 2
years of graduate study from applicanti who are interested in pursuing social
work as a career.
Openings in school-counseling work are usually available to individuals who
have State teaching certificates and special certificates for school counseling.
Most States issue counselor certilicates,only.to people with a master's degree or
the equivalent in counselor education, as well as actual teaching experience.
A graduate degree in psychology serves as an excellent qualification for entry
into numerous positions, particularly those in industry.

In both code groups 045.088 and 045.108, which includes the occupations.in psychology, the "SVP" (specific vocational preparation)
time is rated at from two to ten years.
The profession of psychologist deals with the complex matters
of mental and social 'behavior of an equally complex society. The
holder of an undergraduate degree in psychology may not be classed

as a member of the professions : solely by .reason of such a degree.
liThile such persons may be employed in occupations which utilize
their academic preparation, such persons are not classed as professional psychologists. A. graduate degree or professional experience
the equivalent of a graduate degree for recognition as a member of the
professions in the field. of psychology is needed. Thcpetitioner in the
instant case does not have a.graduate degree in psychology and has
only six months internship in clinical psychology, three months of
which were served during the last semester of school year in which she
earned her undergraduate degree, It is concluded that the Petitioner
does not have the -high level of academic training or. experience to
qualify as a member of the professions. The decision of the District
Director was proper. The petitioner is not eligible for the preference
classification sought. The appeal will be dismissed.
ORDER: It is ordered that the appeal be dismissed.

541


Interim Decision #1995

MATTER OF SS. CAPTAIN DEMOSTHENES

In Fine Proceedings
LOS-10/2.283
Decided by Board July 11, 1969
(1) Liability to fine does not lie under section 254(a) (2) of the immigration
and Nationality Act for failure to detain on board two alien crewmen
denied conditional landing privileges who were apprehended while attempting to swim ashore from the vessel, since, within the meaning of section
254, they did not effect a landing, the element essential to establish a violation of that section.
(2) Where reasonable precautions were taken by the responsible parties, a
vessel's unduly prolonged port call because of the necessity for extensive
repairs warrants a more generous mitigation of the fine arising under section 254 of the Act than in the usual rase.
IN RE: SS. CAPTAIN DEMOSTHENES, which arrived at the port of Los
Angeles, California, from foreign via another United States port,
on August 25, 1968. Alien crewmen involved: Nicolaos Buras,
Georgios Cavril, Cons6ntinos Koumoutsos and Dimitrios Kefalinso
BASIS FOR FINES: Act of 1952—Section 254(a) (2) [8 U.S.C. 1284].
ON BEHALF OF APPELLANT:

Michael D. Dempsey, Esquire
600 South Spring Street
Los Angeles, California 90014

The District Director at Los Angeles, in a decision dated April
10, 1969, held that W. H. Wickersham & Co., as agents for the
vessel, had incurred liability to administrative penalties of $4,000,
$1,000 as to each of the alien crewmen named above, fur failure
to detain them aboard the vessel at all times despite the fact that
they had not been granted conditional landing privileges. However, the District Director found present herein factors which, in

his opinion, merited mitigation of the fines to the extent of
$2,000, $600 as to each of the first two crewmen named above,
and $400 as to each of the other two crewmen. Thus, he permitted to stand herein a penalty of $2,000, $400 as to each of the
first two named crewmen and $600 as to each of the other two
crewmen.
345

Tt appears from the record before us that the following material facts exist without substantial controversy. The vessel made
its first United States port call on this trip at Baltimore, Maryland, on August 1, 1968. Immigration inspection, which was then
and there accorded its crew, resulted in the refusal of conditional
landing privileges to ten alien members of the crew, Greek nationals, including the four named above. They remained aboard
the vessel at all times while it was in the port of Baltimore.
The vessel cleared Baltimore bound for the Far East. After
transiting the Canal Zone, the crankshaft for the main engines
broke and the vessel put into the port of Los Angeles on August
25, 1968, for extensive repairs. It remained in that port for approximately four months thereafter.
On the night of November 17, 1968, while the vessel was anchored just within the breakwater marking the boundary of Los
Angeles harbor, the crewmen Nicholaos Buras and Georgios Cav
ril attempted to swim ashore from the vessel. They were apprehended before reaching land by local police, turned over to immigration officers, placed under deportation proceedings and
deported to Greece.
On December 3, 1968, the vessel then being at dock side, the
crewman Constantinos Koumoutsos left the ship and made his
way ashore in the United States. At the time the District Director considered the case, he was still at large in this country. However, information has now been received by this Board that he
was eventually apprehended by immigration authorities in Boston, Massachusetts, and deported to Greece at the expense of the
vessel's owners)
On December 8, 1968, the crewman Dimitrios Refaliuso succeeded in leaving the ship and making his way ashore in the
United States. Insofar as the record shows, he is still at large in
this country. The only additional comment required in this
connection is that professional guards were on duty at all times
at the gangway while the vessel was at dock side, but it was riding low in the water so that anyone could step from the ship to
the pier, and there was a heavy fog on the night he escaped.
On the basis of the foregoing facts, we conclude that the Dis-

I Ordinarily, we would remand the case to havc thin information Introduced into evidence and considered by the District Director, but we will not
do so here because of the unavoidable administrative delay involved; because
the authenticity of the information does not appear to be subject to question; and because the present posture of the case calla for final resolution of
all aspects of the problems presented, at one and the same time.

346

Interim Decision #1995 -

trict Director has improperly order fines imposed as to the crewmen Nicolaos I3uras and Georgios Cavril who were taken into
custody by local police while attempting to swim ashore and
therafter given over into the custody of immigration officers
and made the subject of deportation proceedings. The reason is
that we do not think it can logically be held that they effected a
"landing," which is the element essential to establish a violation
of this section of the law."
Judicial decisions indicate that the term "landing" is a word of
art. The Supreme Court of the United States has defined it
thus: " 'to land' means to go ashore" and " 'landing from such vessel' takes place and is complete the moment the vessel is left and
the shore is reached." " This language was later quoted verbatim
by the Court of Appeals for the Ninth Circuit. 4
We were called upon to apply the foregoing definition in a
somewhat similar situation involved in the case of Adorno Dubbiosi, Boatswain ex SS "Enrico.", NOR-87, BIA, 5/13/59, unreported. Therein, an alien serving as boatswain abroad a vessel
was charged with liability to fine under section 271 (a) of the Immigration and Nationality Act (8 U.S.C. 1321) for4ailure to prevent the "landing" of four other aliens whom he had assisted to
stowaway aboard the vessel in Italy, and whom he had concealed
throughout the trip to the United States. On the vessel's arrival
in the United States, Service officers discovered the stowaways
just as they were ready to go ashore. Said officers then took the
stowaways and the boatswain into custody and ashore for possible criminal prosecution. In the light of the foregoing judicial
definition of the term "landing," and in view of the penal nature
of this statute requiring for it strict construction in all respects, 5,
we held that no "landing" was effected. We so hold here, finding
no valid reason to do otherwise.
With respect to the foregoing, the United States District Court
for the Eastern District of Virginia, Norfolk Division, ruled to
the same effect in connection with the question of whether the
alien boatswain involved in the case before us had made an
"entry," holding he should have been made the subject of exclusion proceedings rather than the expulsion proceedings which the
Service had brought against him." All we can add, in this connecThe KatIdambra, D.C. N.Y., 1926, 18 F.2d 113.
Taylor v. United States, 207 U.S. 120 (190'7).
4 Niven v. United States, 169 Fed. 782 (1909).
5 Miller v. Robertson, 366 U.S. 243 (1924).
G In re Dubbiosi, 191 F. Supp. 65 (1961).

347

Interim Decision #1995
tion, is that it is immaterial from the fine liability standpoint
that it may not have been the efforts of the parties responsible
for the vessel's operation which prevented the crewman from effecting a landing in the United States for the reason that the
landing is the essence of the violation and without it there can be
no fine.'
As to the other two crewmen, the District Director's opinion
reflects that the parties responsible for the vessel's operation exerted diligent efforts to keep them on board. Professional guards
were hired and on duty at all times while the vessel was at dock
side. Their seaman's documents were lifted and made available to
the Service after their escape. The fact that they had left the ship
was reported to the Service with reasonable promptness.
Ordinarily, under these circumstances we would be inclined to
view as adequate the mitigation ($400) already authorized by the
District Director as to these two crewmen. However, it appears
in this instance that the vessel's port call was unduly prolonged
because of the necessity for extensive repairs. Obviously, this
complicated the ordinary difficulties of detaining the crewmen on
board. In such situations, we have consistently held that more
generous mitigation is warranted than in the usual case, provided
reasonable precautions were taken by the responsible parties, as
they were here. And, as we have already pointed out herein, one
of the two remaining detainees was subsequently removed from
the United States by and at the expense of the parties responsible
for the vessel's operation. Accordingly, we will reduce the penalty
to the statutory minimum of $200 as to him, and reduce the penalty as to the other detainee by an additional $200.
ORDER: It is ordered that the appeal be sustained insofar as
the crewmen Buras and Carril are concerned, and that no fines
be imposed on to them.
It is further ordered that the District Director's decision be
otherwise amended to provide for $200 more mitigation as to the
crewman Kefalinso and $400 more mitigation as to the crewman
Koumoutsos, and that as so modified the decision of said official
be and the same is hereby affirmed.
It is further ordered that the penalty permitted to stand in this
:ase be $600, $400 as to the crewman Kefalinso and $200 as to
he crewman Koumoutsos.

1 S ee Matter of SS "Reline," NOR-10/33.103, BIA, 1960, 9 I. & N. Dec.

348

Interim Decision 42031

section 349 (a) (2) of the Act as it was a concomittant of his nonexpatriating marching and not a separate and distinct act. 5
ORDER: It is ordered that no change be made in the order of
the special inquiry officer and that the applicant be admitted to
the United States as a United States ciizen.

5 Matter of V—L—,
5 I. & N. Dee. 497
Dulles, 168 F. Supp. 1 (E.D. Mich., 1958).

511

(BIA, 1953) ; Moldoveanu v.