Interim Decision #2643

MATTER OF CLAHAR
In Visa Petition Proceedings
A-22160970

Decided by Board April 7, 1978
(1) In order to support a claimed "brother/sister" relationship under section 203(a)(5) of
the Immigration and Nationality Act, 8 U.S.C. 1153(a)(5), a petitioner has to establish
that both he and the beneficiary once qualified as "children" of a common "parent"
within the meaning of section 101(b)(1) and (2) of the Act.
(2) A petitioner and beneficiary who were not born in wedlock cannot qualify as the
legitimate children of their natural father within the meaning of section 101(b)(1)(A), 8
U.S.C. 1101(a)(1)(A).
Underthe Legitimation Act of Jamaica, a child born before the marriage of his parents

is considered their legitimate child from the date of the marriage and is entitled to all
rights of a legitimate child.
(4) Under the Status of Children Act of Jamaica, an act of acknowledgment.of paternity
without the marriage of the natural parents, does not establish coextensive rights with
children who were born in wedlock or children who were legitimated by the marriage of

their natural parents; and, hence, an acknowledged child in Jamaica cannot be equated
with a legitimate or legitimated child for immigration purposes.
(5) A beneficiary who does not qualify as either a legitimate child under section
101(3)(1)(A) or as a legitimated child under section 101(b)(1)(C) of the Immigration and
Nationality Act, is ineligible for immigration benefits under section 203(a)(5) of the Act.
ON BEHALF
Fro se

ON BEHALF OF SERVICE!

OF PETITIONER*

George Indelieato
Appellate Trial Attorney

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Doard Members

The United States citizen petitioner applied for perference classification for the beneficiary as his sister under section 2103(a)(5) of the
En-migration and Nationality Act. In a decision dated May 6, 1977, the
District Director denied that petition. The petitioner has appealed from
that denial. The appeal will be dismissed.
The petitioner is a 34-year-old married male who is a native of
Jamaica and a naturalized citizen of the United States. The beneficiary
a 21-year-old single female alien who is a native and citizen of
Jramaica.

The District Director predicated his denial of the visa petition upon a
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Interim Decision #%643
finding that the beneficiary was illegitimate at birth and that the record
fails to show that she was legitimated by the marriage of her natural
parents or otherwise legitimated.
In a letter submitted in connection with his visa petition., the petitioner informed.the Immigration and Naturalization Service that he and
the beneficiary have a common natural father; that they were born of
different mothers; and that neither of the mothers married their father -.
The petitioner enclosed with his letter a copy of his birth certificate and
a copy of the beneficiary's birth certificate. The petitioner's birth certificate lists the mother's name as Jane Bennett. No name was listed for
the father. In the beneficiary's birth certificate, the mother's name is
listed as Gertrude Pinnock. No name was listed under the category of
father.
On appeal, the petitioner indicates that he and the beneficiary are
related as brother and sister; that they were born out of wedlock; and
that in Jamaica the practice of parents having children out of wedlock is
customary and socially acceptable_ At oral argument, the petitioner
alluded to a change in Jamaican law which he believed had a bearing on
his visa petition. The p etitioner was given an opportunity to furnish this
Board with information concerning Jamaican law. In a letter addressed
to this Board dated July 29, 1977, the petitioner stated that ". . . marriage of the parents of children born out of wedlock in Jamaica is no
longer the criterion for children to be accepted•as legitimate." In support of that statement, he submitted a document which purports to be a
copy of the text of a statute which pertains to the status of children in
Jamaica. The petitioner's letter and the enclosure to that letter are
made a part of the record of these proceedings.
In visa petition cases, the petitioner bears the burden to establish
eligibility. Matter of Brantigan, 11 I. & N. Dec. 49S, 495 (BI A 1966). In
order to support the claimed "brother/sister" relationship under section
203(a)(5) of the Immigration and Nationality Act, the petitioner has to
establish that both he and the beneficiary once qualified as "children" of
a common "parent" within the meaning of sections 101(b)(1) and (2) of
the Act_ Matter of Gur, Interim Decision 2460 (BIA 1977); Matter of
Rehman, Interim Decision 2450 (BIA 1975); Matter of Garner, Interim
D ecision 2257 (13I A 1975); Matter of Hitena, Interim Decision 2334 (BIA
1974).
The only subdivisions of section 101(b)(1) which may possibly be
relevant to this case are (A) and (C), which provide:
The term "child" means an unmarried person under twenty-one years of age who is—
(A) a legitimate child; or
•-

(C) a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the United States, if

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Interim Decision #2643
such legitimation takes place before the child reaches the age of eighteen years and
the child is in the legal custody of the legitimating parent or parents at the time of
such legitimation.

The term "legitimate" as used in section 101<b)(1)(A) refers solely to a
child born in wedlock. See Matter of James, Interim Decision 2461 (BIA
1975); Matter of Dela Rosa, 14 L & N. Dec. 728 (BIA 1074); Matter of

Kubicka, 14 I. & N. Dec. 303 (BIA 1972).

In light of the representations made on appeal concerning legitimation, we have examined the laws of Jamaica in order to ascertain the
current legal status of children in that country and to determine how
these laws may affect the visa petition under consideration in this case.
Previously we held that the law governing legitimation in Jamaica is
found in the Legitimation Act of Jamaica, II Jamaica Laws, c. 217 (rev.
ed. 1953), as amended by the 1961 Jamaica Laws, No. 18. That statute
provides that a child born before the marriage of his parents shall be
considered their legitimate child from the date of the marriage and shall
be entitled to all the rights of a legitimate child. See Matter of Gilpin,
Interim Decision 2503 (BIA 1976).
We note that on October 19, 1976, the Status of Children Act, 1976,
was enacted in Jamaica. The expressed intention of this legislation is to
remove the legal disabilities of children born out of wedlock. It is clear
from studying the text of Section 3 1 of the Status of Children Act that
the drafters intended to establish equal status under the laws of Jamaica

for children born in or out of wedlock. However, it is equally clear that
the Act does, in fact, provide for various enumerated exceptions to this
general proposition of law. Upon examination of the statute, we find
that any previous rule of Jamaican law relating to the domicile or
Section 3 of the Status of Children Act, 1976, of Jamaica provides that:
(1) Subject to subsection (4) and to the provisions of sections 4 and 7, for all the
purposes of the law ofJamaica the relationship between every person and his father and
mother shall be determined irrespective of whether the father and mother are or have
been married to each other, and all other relationships shall be determined accordingly.
(2) The rule of construction whereby in any instrument words of relationship signify
only legitimate relationship in the absence of a contrary expression of intention is
hereby abolished.
(3) Subject to subsection (4); this section shall apply in respect of every person,
whether born before or after the commencement of this Act, and whether born in
Jamaica or not, and whether or not his father or mother has ever been domiciled in
Jamaica.
(4) Nothing in this section shall affect or limit in any way rule of law relating to—
(a) the domicile of any person;
(b) the citizenship of any person;
(c) the provisions of the Children (Adoption of) Act 'which determine the relationship to any other person or a person who has been adopted;
(d) the construction of the word - eir or of any expression which is used to create
an entailed interest in real or personal property.

486

Interim Decision #2643
citizenship of any person is not affected or limited in any way by the
Status of Children Act. Also, the previous provisions of the Jamaican
Adoption of Children Act governs the legal relationship of parties to an
adoption notwithstanding the provisions of the Status of Children Act.
Further, with respect to the construction of the word "heir" or the
construction of any expression which is used to create an interest in real
or personal property, the provisions pertaining to the equal status of
children under the Act in question are not applicable. Additionally, we
construe the provisions of subsection (3) of Section 3 of the Status of
Children Act to mean that as to the legal aspects of domicile, citizenship,
adoption, and the construction of words used to create real and personal
property interests, the statute has no retroactive effect for children
born before the effective date of the Status of Children Act.

Further, we find that the transitional provisions relating to wills and
other instruments and intestacies do not apply to dispositions made
before the date of the commencement of the Status of Children Act.
Dispositions, as defined by that statute, include oral or written
dispositions involving real or personal property, special powers of appointment, intestate distribution and dispositions by inter vivos instruments, wills, and codicils executed before the date of commencement of
the Status of Children Act. 2
In addition to the above described limitations, there exists still
another limitation embodied in Section 7 3 of the Status of Children Act.

That section provides, in pertinent part, that if a father/child relationSection 4 of the Status of Children Act, 1976, of Jamaica provides that:
(1) All dispositions made before the commencement of this Act shall be governid by
the enactments and rules of law which would have applied to them if this Act had not
been passed.
(2) Where any disposition to which subsection (1) applies creates a special power of
appointment, nothing in this Act shall extend the class of person in whose favour the
appointment may be made, or cause the exercise of the power to be construed so as to
include any person who is not a member of that class.
(3) The estates of all persons who have died intestate as to the whole or any part
thereof before the commencement of this Act shall be distributed in accordance with

enactments and rules of law would have applied to them if this Act had not been passed.
(4) In this section "disposition" means a disposition, including an oral disposition, of
real or personal property whether inter vivos or by will or codicil; and notwithstanding
any rile of law, a disposition made by will or codicil executed before the date of
commencement of this Act shall, notwithstanding the provisions of section 29 of the
Wills Act, not be treated for the purposes of this section as made on or after that date by
reason only that the will or codicil is confirmed by a codicil executed on or after that
date_

Section 7 of the Status of Children Act, 1976, of Jamaica provides that:
(1) The relationship of father and child, and any other relationship traced in any
degree through that relationship shall, for any purpose related to succession to property
or to the construction of any will vr valet testamentary disposition or of any instrument
creating a trust, be recognized only if3

487

1.11LUT.1111

liecistuit

IT6043

ship is not recognized by a father at the time a child is born, but is
recognized at a later date, the legal effect of that recognition under the
Act will not affect any estate, right, or interest in property to, which any
person has become absolutely entitled prior to the date of that recognition.
We construe this section to mean that a belated acknowledgment of
paternity of a child born out of wedlock will not retroactively affect
property rights which accrued prior to that acknowledgment.
In his appeal, the petitioner suggests that the legitimation of a child
born out of wedlock may be achieved under Jamaican law without the
subsequent marriage of the natural parents of that child. The Legitimation Act of Jamaica requires the marriage of the natural parents of a
child born out of wedlock in order for that child to be entitled to all the
rights of a legitimate child. We do not find any evidence in the Status of
Children Act, 1976, to indicate that the Legitimation Act of Jamaica has
been abolished, repealed, or annulled. In this connection, the schedule of
amended coexisting Jamaican statutes which is appended to the text of
the Status of Children Act does not reflect the amendment or revocation
of any of the provisions of the Legitimation Act of Jamaica.
Our analysis of the Status of Children Act leads us to the conclusion
that it is not a statute which treats all children born in Jamaica as
legitimate at birth. It is also not a statute which eliminates or modifies
the preexisting legal procedures for effecting legitimation in Jamaica_

While it is evident that the statute has the effect of deleting references
to the term "illegitimate" in Jamaican law and substituting in its place
the expression "born out of wedlock," the fact remains that under
Jamaican law there are significant legal distinctions between children
born in wedlock and children born out of wedlock. These distinctions
affect not only the legal status of a child with respect to domicile,
citizenship, and adoption, but affect his interest and rights to property as

it relates to inter vivos and testamentary dispositions and intestate
distributions. Although a child born out of wedlock in Jamaica may be
(a) the father and the mother of the child were married to each other at the time of
its conception or at some subsequent tine; or

(b) paternity has been admitted by or established during the lifetime of the father
(whether by one or more of the types of evidence specified by section 8 or
otherwise):

Provided that, if the purpose aforesaidis for the benefit of the father, there shall
be the additional requirement that paternity has been so admitted or established
during the lifetime of the child or prior to its birth.
(2) In any case where by reasons of subsection (1) the relationship of father and child
is not recognized for certain purposes at the time the child is born, the occurrence of any
act, event, or conduct which enables the relationship, and any other relationship traced
in any degree through it, to be recognized shall not affect any estate, right, or interest
ha any real or personal property to which any person has become absolutely entitled,
whether beneficially or otherwise, before the act, event, or conduct occurred.

488

Interim Decision #2643
recognized by his natural parents in various formal ways under the
Status of Children Act, the act of recognition does not establish coextensive rights with children who were born in wedlock or children who
were legitimated by the marriage of their natural parents.
The Jamaican law applicable to this case is clearly distinguishable
from Article 15 of the Marriage Law of the People's Republic of China
which states that children born out of wedlock shall enjoy the same
rights as children born in lawful wedlock. In Lau v. Kiley, 563 F.2d 543
(2 Cir. 1977), the court held that all children born in the People's
Republic of China are legitimate. The Chinese statute, unlike the
Jamaican statute, abolishes all distinctions between children born in
wedlock and children born out of wedlock In Matter of Lee, Interim
Decision 2606 (BIA 1977), we held that under the Korean Civil Code of
1960, a child born out of wedlock has coextensive rights with a child born
in wedlock if that child is recognized by registration in the Korean
Family Registry. We noted one exception under Korean culture in the
matter of succession to "Head of Family" and determined that this
exception was immaterial for immigration purposes. In various Eastern
Eurnpean countries, statutes were enacted after World War II for the
purpose of abolishing all distinctions between children of legally married

parents and those born out of wedlock. Under these statutes all children
have the same rights provided paternity is established by acknowledgment or recognition. See Matter of Kubicka, 14 I. & N. Dec. 308 (BIA
1972); Matter of Chojnowski, 11 I. & N. Dec. 287 (BIA 1965); Matter of
K , 8 1. & N. Dec. 73 (BIA 1958) (Poland); Matter ofAnwar, 11 I. & N.
Dec. 365 (BIA 1965) (Yugoslavia); Matter of G , 9 I. & N. Dec. 518
(BIA 1981) (Hungary). We conclude that the Jamaican statute is significantly different from the statutes referred to in the above-cited cases
because the Jamaican statute provides for fundamental exceptions
which affect the substantial rights of children born out of wedlock.
We find that the petitioner and the beneficiary were not born in
wedlock. Therefore, we conclude that they cannot qualify as the legitimate children of their common natural father. Also, we find that the
—

—

petitioner has not presented evidence in support of his visa petition to
establish that he and the beneficiary were legitimated by the marriage
of their respective natural parents as contemplated by the Legitimation

Act of Jamaica. Further, we conclude that, notwithstanding the expressed purpose of the Status of Children Act, that statute does not
abolish all distinctions between the legal status of a child born of legally
married parents and that of a child born out of wedlock. Therefore, we
take the position that compliance with the recognition provisions of the
Status of Children Act cannot result in the legitimation of a child born
out of wedlock. Hence, the beneficiary doe, - not qualify as either a
legitimate child under section 101(b)(1)(A) or as a legitimated child
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Interim Decision #2643
under section 101(b)(1)(C) of the Immigration and Nationality Act. The
petitioner has failed to sustain his burden of proving that the beneficiary
is eligible for immigration benefits under section 203(a)(5) of the Act.

Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

490


Interim Deeidion #1478

Manna or Mamma' In •DeportationProCeedings:.
A-13932037

Decided by Board Arai 8, 1986
Since the grant of voluntary departure is a matter of discretion and admini istratIve grace, respondent's refusal at the deportation hearing to answer
questions directed to him bearing on his application for voluntary departure
is a factor which the special inquiry officer may consider in the exercise of
-such discretion.
Carrams:
Order: Set of 1952—Section 241(a) (1) ES U.S.C. 1251(a) (1))—NonimmiSrant-=No appropriate nonimmigrant documentation.

The respondent, a native and citizen of Italy, appeals -from an
order entered by the special inquiry officer on March 8, 1965 directing
his deportation on the charge stated in the -order to show cause. An

application for voluntary departure. in lieu of deportation was denied. Exceptions have been taken to the denial of the respondent's
application for voluntary departure.
• The respondent concedes that he is an alien who entered the
United States at an unknown port along the Canadian border on or
about May 1, 1961 and that he intended to visit in the United States
at the time of his-last entry (pp. 2 and 3). The respondent refused
to admit allegation No. 5 of the order to show cause, to wit,;You
were not in possession of a valid nonimmigrant visitor visa." An
affidavit executed by the respondent on March 17, 1965 and entered
in evidence as exhibit 2 reads in part as follows: "I did not have any
paper or document which would permit me to enter the United
States. I just had my Italian Passport (when) I entered the United
States . . . at night on April 30, or May 1, 1964 as a passenger on a
train from Montreal, Canada." We conclude on the basis of the
respondent's admission that he is deportable as oharged in the order
to show cause. The'respondent applied for the privilege of volutary departure in

Interim Decision #1478
lieu of deportation. • The special inquiry officer assumes that the respondent is statutorily eligible 'for that•privilege. Voluntary depaiture is denied because of the respbedent's" unwillingness to answer
questions at the hearing. The special inquiry officer cites the case of
Kim v. Rosenberg, 363 13.S. 405, 4 Lid. 2d 1299, June 13, 1960, as
authority for refuiing as a matter of discretion to grant the application for voluntary departure.

Counsel on appealmaintains that the rule set forth in the Supreme
Court's decision in the case of Kim T. Rosenberg (stipra) is not applicable to the insteht ease. and that it was error onr the part of the
Special inquiry officer to rely upon it as a ground lei deifying dis-

relief. Counsel maintains tbat Kim's refusal to answer
questions concerning whether he was a membei of the ComMunist
Party had a direct bearing on his "statutory eligibility for suspension
of deportation whereas the respondent herein has met the burden of
establishing his statutory eligibility for voluntary departure. Counsel urges that if the respondent had submitted to a detailed intercretionary

rogation with regard to his entry without documents ha risked
making harmful admissions which could later be used against him .

in a criminal prosecution.
The issue before us may be compared with that before the Supreme Court in the case of Orloff v. Willoughby, 345 U.S. 83, 97
Led. 842. Orloff in habeas corpus proceedings sought his discharge from the Army or in the alternative the grant to him of a
commission as a medical officer. After Orloff's induction, under a
special law relating to doctors, he applied for a -commission and
when asked concerning membership in the Communist Party of the
United States or other organisations on. the list designated by the
-Attorney General as subversive, he claimed his privilege against
self-incrimination. The commission was denied him but he was retained in the Army and assigned to medical work in a noncommi.sion at a
sion status. The Court held that the grant of a commission
medical officer is discretionary with the President of the 'United
States. The Court in its opinion said:
It is argued that Orloff is being punished for having claimed a privilege
which the Constitution guarantees. No one, at least no one on this court
which has repeatedly sustained assertion by Communists of the privilege
against self-incrimination, questions or doubts all Orloff's right to withhold
facts about Dims= on this ground. No one believes be can be punished for
doing so. But the question is whether he can at the same time take the position that to tell the truth about himself would incriminate him and that
even so the President must appoint him to a post of honor and trust. We
have no hesitation in answering that gnestion "no". (845 U.S. at p. 91, 97
Led. 848.)

Interim Decision #1478
• The grant of voluntary departure is -a matter of discretion and of
administrative grace on the part of the sovereign. An applicant for
administrative grace must upon the request of the Attorney General
or one acting in his behalf, supply such information that is within
his knowledge and has direct bearing on his application for dis- •
cretionary relief. We do not question the respondent's claim that he
was justified in his refusal to answer the questions directed to him
by the special inquiry officer. His refusal to answer the questions
propounded to him, however, is a factor which may be considered
by the special inquiry officer in exercising the discretion granted by
the statute. Under the circumstances we find no error -on the part

of the special inquiry officer in relying upon the case of Kim v.
Rosenberg (supra) in denying the respondent's application for voluntary departure. The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same it hereby

dismissed.

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text:
Cite as 26 I&N Dec. 726 (BIA 2016)

Interim Decision #3859

Matter of Bandele Adekunle ADENIYE, Respondent
Decided as amended May 2, 2016 1
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An “offense relating to a failure to appear by a defendant for service of sentence” is an
aggravated felony under section 101(a)(43)(Q) of the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(43)(Q) (2012), if the underlying offense was “punishable by”
imprisonment for a term of 5 years or more, regardless of the penalty actually ordered or
imposed.
FOR RESPONDENT: Julio E. Moreno, Esquire, Atlanta, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Blake Doughty, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY and GREER, Board Members; GELLER, Temporary
Board Member.
PAULEY, Board Member:

In a decision dated September 1, 2015, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien
convicted of an aggravated felony under section 101(a)(43)(Q) of the Act,
8 U.S.C. § 1101(a)(43)(Q) (2012), and ordered him removed from the
United States. The respondent has appealed from that decision. The appeal
will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Nigeria who was admitted to
the United States as a nonimmigrant visitor on July 20, 1989. He adjusted
his status on July 26, 1993, but his lawful permanent resident status was
rescinded in 1996. On June 30, 1995, the respondent was convicted of
possessing stolen mailbox keys in violation of 18 U.S.C. § 1704 (1994),
1

On our own motion, we amend the March 17, 2016, order in this case to correct the
erroneous reference on page 728 regarding the jurisdiction in which this matter arises.
Additional case citations have also been included in the amended paragraph.

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Cite as 26 I&N Dec. 726 (BIA 2016)

Interim Decision #3859

which is a Federal felony punishable by a maximum term of imprisonment
of 10 years. As a result of that conviction, the respondent was sentenced to
a 24-month term of imprisonment, but he absconded before being taken
into Federal custody. The respondent was later apprehended, and on
December 17, 2014, he was convicted of escape in violation of 18 U.S.C.
§ 751(a) (2012) and of failing to surrender for service of sentence in
violation of 18 U.S.C. §§ 3146(a)(2) and (b)(1)(A)(ii) (2012).
The Immigration Judge determined that the respondent’s 2014
conviction for failing to appear for service of sentence is for an aggravated
felony under section 101(a)(43)(Q) of the Act because it is “an offense
relating to a failure to appear by a defendant for service of sentence if the
underlying offense is punishable by imprisonment for a term of 5 years or
more.” Accordingly, the Immigration Judge found that the respondent is
removable and ineligible for all requested relief.

II. ANALYSIS
Although the respondent concedes that his offense of conviction is one
“relating to a failure to appear . . . for service of sentence,” he argues that it
is not an aggravated felony under section 101(a)(43)(Q) of the Act because
the “underlying offense”—possession of stolen mailbox keys—was not
“punishable by imprisonment for a term of 5 years or more.” Specifically,
although the respondent does not dispute that 18 U.S.C. § 1704 prescribes a
statutory maximum penalty of imprisonment for 10 years, he maintains that
the term of imprisonment by which his underlying offense was
“punishable” should be determined by looking to the 24-month sentence he
was actually ordered to serve, and not to the offense’s statutory maximum
penalty of 10 years.
In this regard, the respondent observes that the aggravated felony
definition at section 101(a)(43)(Q) of the Act is the only one that focuses
on the term of imprisonment by which an offense is “punishable,” noting
that two other subparagraphs of the definition refer to the sentence that
“may be imposed” for an offense, namely, section 101(a)(43)(J) (covering
certain racketeering and gambling offenses “for which a sentence of one
year imprisonment or more may be imposed”) and section 101(a)(43)(T)
(covering certain “failure to appear” offenses where the underlying offense
was one “for which a sentence of 2 years’ imprisonment or more may be
imposed”). According to the respondent, the disparate use of the terms
“may be imposed” and “punishable by” indicates that Congress must have
intended these terms to have different meanings.
It is unclear why Congress chose to use the term “punishable by” in
section 101(a)(43)(Q) of the Act, rather than the “may be imposed”
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Cite as 26 I&N Dec. 726 (BIA 2016)

Interim Decision #3859

formulation it employed in sections 101(a)(43)(J) and (T). The legislative
history of the aggravated felony definition sheds no light on the question. 2
Nevertheless, we are not persuaded to adopt the respondent’s construction
of the language in section 101(a)(43)(Q).
The fundamental problem with the respondent’s argument is that it runs
counter to the plain “meaning of the term ‘punishable,’ which refers to any
punishment capable of being imposed.” Schrader v. Holder, 704 F.3d 980,
986 (D.C. Cir. 2013) (emphasis added). In analogous contexts, the courts
have held that Congress’ use of the term “punishable by” denotes a focus
on the maximum penalty that may be imposed for the offense of conviction,
rather than on the penalty that was (or could have been) imposed upon any
particular defendant. See United States v. Denson, 588 F.2d 1112,
1116−17, 1120−22 (5th Cir. 1979); see also, e.g., United States v. Gallaher,
624 F.3d 934, 940 (9th Cir. 2010); United States v. Guzman-Tlaseca, 546
F.3d 571, 579 (8th Cir. 2008); United States v. Murillo, 422 F.3d 1152,
1153−54 (9th Cir. 2005).
The respondent’s reading is also inconsistent with the Supreme Court’s
line of decisions culminating in Moncrieffe v. Holder, 133 S. Ct. 1678
(2013), which have held that the term “drug trafficking crime”—defined by
18 U.S.C. § 924(c)(2) (2012) to mean “any felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et seq.)”—refers to offenses “for
which the ‘maximum term of imprisonment authorized’ [under the
Controlled Substances Act] is ‘more than one year.’” Id. at 1683 (quoting
18 U.S.C. § 3559(a)(5) (2012)); see also Carachuri-Rosendo v. Holder, 560
U.S. 563, 567 (2010). As the Moncrieffe Court further explained, “The
upshot is that a noncitizen’s conviction of an offense that the Controlled
Substances Act (CSA) makes punishable by more than one year’s
imprisonment will be counted as an ‘aggravated felony’ for immigration
2

The language now codified in section 101(a)(43)(Q) of the Act was initially enacted as
subparagraph (P) by section 222(a) of the Immigration and Nationality Technical
Corrections Act (“INTCA”) of 1994, Pub. L. No. 103-416, 108 Stat. 4305, 4320, 4322. It
was subsequently redesignated as subparagraph (Q), and the original 15-year term of
imprisonment required by the statute was amended to require the current 5-year term.
Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No.
104-132, §§ 440(e)(5), (6), 110 Stat. 1214, 1277−78. However, it has always included
the “punishable by” language. Section 222(a) also added section 101(a)(43)(J) of the
Act, which has continuously used the words “may be imposed” rather than “punishable
by.” INTCA § 222(a), 108 Stat. at 4321. Section 101(a)(43)(T) of the Act, which was
added by section 440(e)(8) of the AEDPA, 110 Stat. at 1278, has always employed the
“may be imposed” formulation as well. Our research has revealed no evidence to suggest
that the proponents of these various provisions attributed any particular significance to
their discrepant use of “punishable by” and “may be imposed.”

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Cite as 26 I&N Dec. 726 (BIA 2016)

Interim Decision #3859

purposes,” thus signifying that the Court understands the term “punishable
by” to refer to the maximum possible sentence that may be imposed upon
conviction, not to the sentence actually ordered or imposed. 3 Moncrieffe
v. Holder, 133 S. Ct. at 1683. We agree and see no reason to depart from
that commonsense understanding here.
We realize that Congress’ use of different terms within related statutes
generally implies that different meanings are intended. See, e.g., Sosa
v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004). Thus, while the
ordinary meaning of undefined statutory terms is strongly preferred, there
may be occasions when similar or related terms must be given different
meanings, even at the cost of interpreting one of those terms in an
uncommon way. For instance, in Johnson v. United States, 529 U.S. 694
(2000), a case involving the revocation of a criminal defendant’s supervised
release, the Supreme Court recognized Congress’ “unconventional usage”
of the statutory term “revoke,” explaining that the “uncommon sense” of a
term may be relied on “when the ordinary meaning fails to fit the text and
when the realization of clear congressional policy . . . is in tension with the
result that customary interpretive rules would deliver.” Id. at 704−09
& n.9. This principle does not aid the respondent here, however, because
there is no indication that the ordinary meaning of the term “punishable by”
does not make contextual sense or that using the ordinary meaning of the
term would in any way frustrate congressional intent.
Moreover, the respondent’s argument that different phrases must be
construed to have different meanings does not necessarily support his claim
that the meaning to be ascribed to the term “punishable by” in his case
should be the sentence actually imposed. Several subparagraphs of the
aggravated felony definition do focus on the sentence that was ordered in a
3

Carachuri-Rosendo is not to the contrary. The Court held there that an alien’s second
misdemeanor conviction for drug possession under State law did not correspond to
“recidivist possession”—a “felony punishable” by imprisonment for more than 1 year
under the Controlled Substances Act, 21 U.S.C. § 844(a)—where no recidivist
enhancement was actually ordered in State court. Carachuri-Rosendo v. Holder, 560
U.S. at 576−82; see also United States v. Brooks, 751 F.3d 1204, 1209−13 (10th Cir.
2014) (applying the reasoning of Carachuri-Rosendo in holding that a State must have
sought an upward sentencing departure under its sentencing guidelines scheme in order to
find that a defendant was convicted in that State of an “offense punishable
by . . . imprisonment for a term exceeding one year” (quoting U.S. Sentencing
Guidelines Manual § 4B1.2 cmt. n.1 (U.S. Sentencing Comm’n 2007))). Unlike in
Carachuri-Rosendo, the respondent’s offense of conviction was punishable by a term of
imprisonment of more than 5 years based solely on its elements. Carachuri-Rosendo
v. Holder, 560 U.S. at 582 (stating that a defendant must “have been actually convicted of
a crime that is itself punishable as a felony under federal law”).

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Interim Decision #3859

particular respondent’s case. See sections 101(a)(43)(F), (G), (R), (S) of
the Act (defining as aggravated felonies certain offenses “for which the
term of imprisonment is at least one year”). According to the respondent’s
own theory, if Congress had intended section 101(a)(43)(Q) to focus on the
sentence actually imposed, it would most naturally have used the
formulation in those subparagraphs, but it chose not to. Under the
circumstances, we find that the respondent’s argument cuts both ways and
is therefore unpersuasive.
We find no sufficient reason to warrant our deviation from the ordinary
meaning of the term “punishable by” in the context of section
101(a)(43)(Q) of the Act. Since the maximum penalty for a violation of
18 U.S.C. § 1704 is imprisonment for 10 years, the respondent’s offense is
“punishable by imprisonment for a term of 5 years or more,” regardless of
the fact that the sentence actually imposed was for 24 months. We
therefore conclude that he was convicted of an aggravated felony under
section 101(a)(43)(Q).

III. CONCLUSION
Possession of stolen mailbox keys in violation of 18 U.S.C. § 1704 is an
offense “punishable by imprisonment for a term of 5 years or more” under
section 101(a)(43)(Q) of the Act. Thus, the respondent’s conviction under
18 U.S.C. § 3146 for failing to appear to serve his sentence for that offense
is for an aggravated felony that renders him removable under section
237(a)(2)(A)(iii) of the Act. No other issues are presented on appeal.
Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

730

created_timestamp: amended


Interim Decision #1676

MATTER of VOSGANIAN

In Deportation Proceedings
A 10160233
-

Decided by Board December 21, 1966
Since to show a single scheme of criminal misconduct within the meaning of
section 241(a) (4), Immigration.and Nationality Act, requires, at least, the
existence of a purpose so definite and limited in scope as to time, place, and
manner as to make it reasonably probable that the alien would commit the
very crimes for which he stands convicted, it has been established by clear,
uneenivocable, and convincing evidence that respondent's convictions on 2 separate occasions in 2 different courts of larceny (7 counts), from 2 different
victims in the same locale, and of larceny by check (5 counts), involving a third
victim in a different locale, committed over a period of approximately 1
month, did not arise out of a single scheme of criminal misconduct where
respondent, by his own testimony, indicated that initially the purpose of
his action, motivated by the needs of the moment, was to get money to
gamble and win money to pay his debts but losses increased his debts, creditors, and pressures, broadened the scope of his activities, and he engaged in
a frantic series of activities until apprehended.
CHARGE :

Order: Act of 1952--Section 241(a) (4) [8 U.S.C. 1251 (a) (4)3—Convicted of
two crimes involving moral turpitude, not arising out
of a single scheme of criminal misconduct.

&mew or B.Esronorarr
I. Miles Pollack, Esquire

ON

ON BEHALF OF

Myron:

R. A. Vielkaber
Appellate Trial Attorney

850 Broadway
New York City 10013

This is an. appeal from the decision of the special inquiry officer,
finding respondent deportable as charged, holding him to be statutorily ineligible for voluntary departure, and ordering his deportation to England, the country of designation, with an alternative order
of deportation to Lebanon.
The Government introduced, in support of the allegations in the
order to show cause, a record of conviction of the respondent, in the
Superior Court for Middlesex County, Massachusetts, dated February
11, 1964, showing that respondent had pleaded guilty to an indict-

1

Interim Decision #1676
ment charging seven counts of larceny from two different victims, the
said acts taking place in Medford, Massachusetts, on November 12,
18, 20, 21 and 23, 1963. Respondent was sentenced to the House of Correction for one year, but sentence was suspended for a period of three
years upon condition that respondent make restitution in the amount
of $1,155 (Ex. 2).
The Government also introduced, as Exhibit 3, a second record of
conviction showing that on March 28, 1964, on his plea of guilty,
respondent was convicted in the District Court of Peabody, County
of Essex, Massachusetts, of five counts of larceny by check, each check
being in the amount of $50.00, the checks being made on December
11, 13, 14 and 15, 1963, all being cashed in the same department store
in Peabody, Massachusetts (which was not one of the two victims

involved in the first set of convictions). Respondent was sentenced to
one year in the House of Correction, but sentence was suspended until
January 3, 1965 on condition that restitution be made.
Respondent concedes that all of the factual allegations in the order
to show cause are true, and concedes that the above records of conviction relate to him and that he was guilty of the crimes charged therein.
He contests deportability, however, alleging that the crimes referred
to all arose out of a single scheme of criminal misconduct.
Counsel seeks on appeal to raise the additional issue of whether the
crimes involved moral turpitude, mentioning the statutes of several
states covering the passing of worthless checks, and referring to a
decision of the Board (Matter of Stasinski, Int. Dec. No. 1476, decided
May 26, 1965) in which a conviction for issuing or passing a. worthless
check, under a specific section of Wisconsin law, was held not to be a

crime involving moral turpitude. The respondent here was charged
with, and convicted of, larceny and larceny by check. The courts have
long since settled the question that larceny is a crime involving moral
turpitude, cf. Tillinghast v. Edmead, 31 F.2d 82 (1st Cir., 1929) ;
Wilson v. Carr, 41 F.2d 704 (9th Cir., 1930). The record of conviction
is controlling, Wing v. United States, 46 F.2d 755 (7th Cir., 1931),
and speculation as to what other charges might have been brought
under the circumstances can in no way affect the question of deportability.
The Government has the burden of proving deportability by clear,
unequivocal, and convincing evidence (cf. Woodby and Sherman cases,
35 LW. 4053, decided by U.S. Supreme Court, December 12, 1966),
and under the section of law involved here, it must show not only the
conviction of two crimes involving moral turpitude but also that they
did not arise out of a single scheme of criminal misconduct, Wood v.
Boy, 266 F.2d 825 (9th Cir., 1959). We consider that the Government,
2

Interim Decision #1676
by its introduction of the two records mentioned above, showing conviction of two differently defined crimes (seven counts of larceny, and
five counts of larceny by check), in two different courts, involving
three different victims, taking place in two different locations, in two
separate months, with no connection between them other than that
respondent was the defendant, established its prima facie case. It,
therefore, was not error for the special inquiry officer, at that point, to
suggest to respondent through counsel that if it was his contention that
the crimes arose out of a single scheme of criminal misconduct, he
should come forward with whatever evidence he wished to present on
that issue.
Counsel then asked the Government to introduce, on respondent's behalf, thirteen other sets of court. records (Exs. 6 17), which establish
that respondent also pleaded guilty to 31 more counts of larceny, 4
more counts of larceny by check and 1 count of attempt to steal. As the
special inquiry officer points out, most of these could have served as
well for the purposes of section 241(a) (4) as the two sets of convictions
specified in the order to show cause (except for the 14 counts making
up Exhibit 5, where the cases were placed "on file" by the court, a disposition held not to have the force of a conviction for deportation purposes, Pino v. Landon, 349 U.S. 901 (1955) ).
Respondent testified on his own behalf, explaining his situation thus :
In 1968, when he was residing and working in Massachusetts, he
began to gamble at races on nearby tracks, placing his bets either in
person at the tracks or with bookmakers off-track. He was apparently
completely unsuccessful and lost more money than he could afford to
lose, especially since he was already in debt. He felt that the way to
recoup his losses was to continue his betting in the hope that his luck
would change. He borrowed money from banks, loan companies and
"loan sharks", and lost it all. In the first week of November, 1963, he
lost his job. He then had outstanding, and overdue, debts of close to
28,000. He testified that he was being harassed by the banks and loan
companies and threatened with physical harm by the "loan sharks" for
not making payment. He decided that the only solution to his difficulties was to issue and cash checks on accounts in which he had insufficient funds, so that he could obtain the money he needed..
Respondent opened a checking account in one bank and proceeded
to write and cash checks far in excess of the token amount he had
deposited to open the account. By the end of the week, the checks
started "bouncing", and he had already been threatened with criminal
prosecution unless he made prompt restitution, by the manager of one
of the stores he had victimized. His need for money became, if anything, even more pressing, and he knew that the bank, aware of his
-

3

Interim Decision #1676
activities, would not issue additional checks to him, so he proceeded
to open two new checking accounts in two separate banks. He continued writing and cashing checks, passing a total of 50 or more
before he was apprehended (there were a few on which charges were
not brought against him). It appears, from respondent's testimony,
that he had no organized or overall idea of what he intended to do
when he started on this course of conduct, other than to get money,
and that his actions were dictated by the needs of the moment:
I had a big burden of debts and I didn't know what to do, how to pay
and I was threatened and so I opened a little checking account and then from a
department store—a large department store, I wrote a check. I bought little
articles from the check and I tried to pay some of it to the shylocks that would
threaten me, so I gave them part of it and part of it T gambled with but I
lost and then during this period of six weeks, I was writing checks trying to
get some money to pay back and I beard the police were looking for me and
then I was going to be thrown in jail, so I wrote the checks trying to get back
to make money and pay the banks which I didn't want to put back $150 to the
bank, Maiden Trust Company, but I just couldn't put it back because I was
losing the money and then they were looking for me and then the skylocks
threatened me. So I gave them part of it and I went back and wrote more checks
until December 21et. (Tr. p. 14)

The scope of the operation changed as it continued and his losses
continued, and broadened to include the repayment of the monies he
had obtained by the checkwriting, provided his luck changed :
I can gamble and make money if I can by getting lucky, and pay the whole
thing that I wrote checks, including the bank and the department stores will say,
well, he paid us, so that they don't have to prosecute me and if they do, at
least I'll have the money to pay, because I have never been in trouble. I didn't
even know the procedure of law how they excuse a person by paying or not
paying, so I thought that I could pay them all and try to start all over again—
you know—a better life because I was just so much peeved and they were
after me and I said if I stop now, this minute, I will lose this much money,
what am I going to do, so I wrote some more checks so, let me get lucky and
maybe I can pay the rest that I wanted prior to my last check I wrote, to pay
them all, the whole thing back, including the gambling places. (Tr. p. 29).

Is this, the writing of 48 worthless checks, on three different banks,
the cashing of them in seventeen separate stores in eight different
towns, in the period from November 7,1963 to December 26,1963, with
use of the proceeds to make partial repayment on loans from "loan
sharks", make token deposits in the newly opened bank accounts and
make further bets on the races, a "single scheme of criminal
misconduct" f
The wording of the statute itself and its legislative history are of no
assistance in determining the meaning of this phrase, which saves from
deportation certain persons who have been convicted of more than
4

Interim Decision #1676
one crime involving moral turpitude. The Board initially interpreted
this exception to refer to acts which, although separate crimes in and
of themselves, were performed in furtherance of a single criminal
episode, as, for example, the possession and passing of a counterfeit
bill, or an assault with a deadly weapon after breaking and entering
a premises to commit larceny (see Matter of D , 5 I. & N. Dec. 728;
Matter of Z— 6 I. &I N. Dec. 167; Matter of 1—, 6 I. & N. Dec.
882; Matter o f :M—,71.& N. Dec. 144) . We believe that this interpretation effectuates the basic purpose of the exception, which is contained
in an overall provision aimed at simplifying the deportation of genuine
multiple offenders. However, the wording has been variously interpreted by the courts of the several circuits and the matter has never
been ruled on by the Supreme Court. The special inquiry officer , in
ihis opinion, has carefully considered and discussed the reported dec
sions on this issue and their applicability to the instant case.
The deportation proceedings herein arise in the Second Circuit.
On the District Court level, there is the case of Jeronimo v. Murff,
157 F. Supp. 808 (S.D.N.Y., 1957), where the alien was convicted
of six counts of larceny and a count of conspiracy to defraud the
City of New York by making false claims for labor and material on
public contracts. The indictment read:
—

All of the acts and transactions alleged in each of the several counts in this
indictment are connected together and constitute parts of a common scheme
and plan.

The court, in holding that the various acts (committed over a twoyear period) were part of a single scheme of criminal misconduct,
leaned heavily on the language of the indictment, as well as the
identity of victim and the fact that the same city employee had bean
dealt with in each instance. None of these factors is present in the
instant case. Also on the District level is Barrese v. Ryan, 203 F.
Supp. 880 (D.C. Conn., 1962), where the court ruled that the 68year-old alien, who had first entered the United States in 1916, was
not deportable for conviction of two counts of having failed to pay
a $25 occupational tax required for the sale of liquor in connection
with the operation of his restaurant in two successive years. The court
held that the two convictions arose out of the continuing operation
of the restaurant, and hence were a part of a single scheme of criminal
misconduct. Barrese, too, is distinguishable from the instant matter.
There is question, however, as to whether Jeronimo and Barrese
are controlling in the Second Circuit. In a later case, Costello v. Immigration. and Naturalization Service, 811 F.2d 343 (1962), (reversed on other grounds, 376 U.S. 120), the Court of Appeals did
not consider that conviction on two counts of income tax evasion for
5

Interim Decision #1676
two successive years came within a "single scheme of criminal misconduct". It specifically noted its disagreement with the holdings in

Jeronimo, Barrese and cases in other circuits which relied on Jeronimo. In arriving at its decision, the court considered the legislative
intent in creating the language of section 241(a) (4), and stated:
• • • 110T would it seem reasonable to suppose that the Congress intended to
grant immunity from deportation to those who over a period of time pursued
a course of criminal misconduct, involving numerous successive, separate crimes,
consummated at different times but in the same manner, or with the same as-

sociates, or even by the use of the same fraudulent devices, disguises, tools or
weapons. Nor in the ease of successive bank robberies at different times and
places, for example, would it seem that these could be said to have arisen out
of a single, rather than two separate schemes of criminal misconduct, simply
because tae robbers, prior to the first robbery, had in mind and had discussed
the robbery of the second bank after the hue and cry over the first robbery had
subsided. After all, there is no denying the fact the Congress by the 1952 Act
intended to make it easier rather than more difficult to deport aliens who were
recurrent criminal&

Respondent bases his claim to the "single scheme" exemption upon
the fact that for six -weeks he "pursued a course of criminal misconduct, involving numerous successive, separate crimes, consummated
at different times but in the same manner * * *, by the use of the
same fraudulent devices * * *" for the sole purpose of paying off
his debts. Costello rules out, as persuasive of a single scheme, the mere
repetition over a period of time of the same criminal act on separate occasions. The special inquiry officer has given his attention to the
weight to be accorded the claim of a single motivating purpose underlying all of the criminal acts. He points out that the object of most
crimes is financial gain. He states:
Obviously, the existence of such a purpose is too broad a criterion with which
to evaluate the existence of a single scheme. The least that would appear to
be required is the existence of a purpose so definite and limited in scope, both
as to amount and as to time, place and manner of execution, as to make it reasonably probable that the very crimes for which respondent stands convicted
would be the ones which he would commit. (Opinion, p. 11).

We believe this to be a fair and valid standard to apply, one which
can encompass the situation presented in Wood y. Hoy, supra, and prevent, at the same time, a blanket extension of the exception contained
in the statute to any person who has the presence of mind to testify
that he had a preconceived and single purpose in committing several
criminal acts.
Respondent's activity, by his own testimony, does not meet the standard of definiteness and limited scope. His purpose initially was to get
money so that he could gamble and win money to pay back his debts,.
but as his activities proceeded, his debts and creditors increased, the
6

Interim Decision #1676
pressures on him changed, and he engaged in a frantic sequence of
robberies from Peter to pay Paul. His purpose was not being achieved
but he continued hopeful, and changed locales and victims, knowing
the police were after him but willing to lengthen his criminal record
by each successive act until he should be stopped by being apprehended
by the police. There is no evidence that he used any of the money so
obtained for the alleged purpose for which he was stealing it, or that
any of his debts were paid before the arrival of his mother from Lebanon, with money to make restitution. We cannot give serious consideration to the contention, on appeal, that because of "poor planning
or unsatisfactory results" the unskilled criminal should be given the
dispensation of "flexibility of action" to permit him to carry out his
purpose, and still be considered to be within a single scheme (cf. brief,
PP. 6-7).
We hold that deportability has been established, by the appropriate
weight of evidence, that the special inquiry officer was correct in finding respondent statutorily ineligible both for suspension of deportation and voluntary departure, and that the appeal must therefore be
dismissed.
ORDER: It is ordered that the appeal herein be and the same is
hereby dismissed.

7


Interim Decision #2839

MATTER OF PEREZ-VALLE

In Deportation Proceedings
A-19981512
Decided by Board November 19, 1980
(1) Where the judgment in a criminal case is an acquittal, rather than a conviction,
collateral estoppel is applicable in a subsequent criminal case as to matters necessarily determined in reaching the acquittal. Ashy v. Swenson. 397 U.S. 436 (1970).
(2) Collateral estoppel is not applied with respect to an acquittal to bar a subsequent
civil quit because of the differences between civil and criminal law and procedure.
Helvering v. Mitchell, 303 U.S. 391 (1938).
(3) Where a defendant has been acquitted on a criminal charge, one of the essential
elements of which was alienage, the doctrine of collateral estoppel does not preclude
litigation of the question of his alienage in a subsequent deportation proceeding.
CHARGE:

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)3—Entry

without inspection

ON BEHALF OF SERVICE

ON BEHALF OF RESPONDENT:

Raymond Campos, Esquire
Vivero & Campos
304 South Broadway, Suite 310

Jane Gersbacher
Trial Attorney

Los Angeles, California 90013

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

In a decision dated August 14, 1978, an immigration judge found the
respondent deportable as charged and granted him voluntary depar-

ture. The respondent has appealed. The appeal will be dismissed.
The respondent is 35 years old, allegedly a native and citizen of
Mexico. The record reflects that on April 15, 1966, he was granted
voluntary return to Mexico. On December 8, 1970, in the United States
District Court for the Southern District of California,. the respondent
was found guilty in accordance with his pleas of guilty on two counts of
making a false claim to United States citizenship in violation of 18
U.S.C. 911. He was sentenced to confinement for 3 months and 10
months, respectively, with confinement in excess of 3 months suspended. In addition, he was placed on probation for 5 years. On June 19,
1972, the respondent was convicted in the United States District Court
554,1

Interim Decision #2839
for the Southern District of California of conspiracy and transportation of illegal aliens in violation of 18 U.S.C. 317 and 1324 (four counts).
He was sentenced to 3 years confinement and placed on probation for 3
years. He last entered the United States from Mexico on March 7, 1974,
again claiming to be a citizen of the United States. On September 28,
1977, the United States District Court for the Central District of
California acquitted him on a charge that he was an alien found in the
United States after deportation in violation of 8 U.S.C. 1326. On
February 2, 1978, an Order to Show Cause was issued charging the
respondent with deportability for having entered the United States
without inspection. At his hearing, the respondent admitted that he
last entered the United States at San Ysidro, California, claiming to be
a United States citizen. Deportability in this case rests upon the
determination whether the respondent is an alien.
On appeal, the respondent contends that his September 28, 1974,
acquittal on the charge of being an alien found in the United States
after deportation is res judicata to the Government on the issue of
alienage. The respondent's argument is in essence that the judge
acquitted him because he is a United States citizen and, therefore, the
Government is collaterally estopped by the former acquittal from relitigating the issue of alienage' We find the respondent's contention to
be without merit _

It is well settled that the facts necessary for a criminal conviction
and judgment are deemed conclusive in any later civil suit between the
same parties or their privys. Enrich Motors Corporation v. General
Motors Corporation, 340 U.S. 558 (1951); Local 167, LB.T., etc. v. United
States, 291 U.S. 293 (1934); United States v. Kaplan, 267 F.2d 114 (2 Cir.
1959). A determination of alienage in connection with a criminal
conviction has been held conclusive in a subsequent suit for revocation
of naturalization. United States v. Accardo, 113 F.Supp. 783 (D.C.N.J.
1953), eV., 208 F.2d 632 (3 Cir. 1953).
The Board has also applied estoppel to preclude re litigation of
issues decided by a criminal conviction. Thus, a respondent convicted
for illegal entry has been collaterally estopped from re-litigating the
issue of illegal entry in deportation proceedings. Matter of Rina, 15
I&N Dec. 346 (BIA 1976). A respondent convicted for fraudulently
procuring a visa has been estopped from establishing that he had not
-

' The term urea judicata" has been given many different meanings. Current usage
gives it a broad meaning which covers all the various ways in which a judgment in one
action has a binding effect in another. This includes the effect of the former judgment as
a bar or merger where the latter action proceeds on all or part of the very claim which
was the subject of the former. It aloe includes what has come to be known as collateral

estoppel—the effect of a former judgment in a later action based upon a different claim
or demand. See F. James, Civil Procedure, section 11.9 (1965).
582

Interim Decision 112839
obtained the visa by fraud. Matter of Z—, 5 I&N Dec. 708 (BIA 1954). A
respondent convicted for attempting smuggling of heroin into the
United States contended in exclusion proceedings that he was brought
to the United States against his will. The Board found that this
contention had been presented to and rejected by the criminal court
and held that the respondent was estopped from relitigating that issue
in exclusion proceedings. Matter of Grandi, 13 I&N Dec. 798 (BIA 1971).
Where the judgment in a criminal ease is an acquittal, rather than a
conviction, collateral estoppel is applicable in a subsequent criminal
case as to matters necessarily determined in reaching the acquittal.
Ashe v. Swenson, 397 U.S. 436 (1970). However, an acquittal does not
bar a subsequent civil action remedial in its nature based upon the

same facts alleged in the criminal case' Thus, one acquitted of
criminal tax evasion may nonetheless be found to have evaded taxes so
as to be subject to the 50 percent civil tax fraud penalty. Helvering v.
Mitchell, 303 U.S. 391 (1938). A forfeiture of imported merchandise not
included in a declaration of entry pursuant to the tariff provisions of
the United States Code is not barred by a. prior acquittal on a charge of
having smuggled that merchandise into the United States. One Lot
Emerald Cut Stones and One Ring v. United States, 409 U.S. 232 (1972).
Likewise, the doctrine of collateral estoppel does not prohibit a parole
board from finding a petitioner guilty of a violation of parole following
an acquittal on the same underlying charge in a criminal trial. See
Standlee v. Rhay, 557 F.2d 1303, n.2 (9 Cir. 1977). This rule is applicable
in deportation cases. The Supreme Court has held that an acquittal on
a criminal charge alleging that the defendant procured and brought a

woman to the United States for immoral purposes may nonetheless be
found deportable based on the acts underlying that charge. See Lewis
v. Frick, 233 U.S. 291 (1914)'
Collateral estoppel is not applied with respect to an acquittal to bar
a subsequent civil suit because of the differences between civil and
criminal law and procedure. The following quotation from Helvering v.
Mitchell, 303 U.S. 391 (1938), is instructive:
The difference in degree of the burden of proof in criminal and civil proceedings
precludes application of roe Indicate. The acquittal was "merely ... an adjudication
that the proof was not sufficient to overcome all reasonable doubt of the accused."
Lewis v. Frick, 233 U.S. 291 (1914).... It did not determine that Mitchell had not
2 If a subsequent civil action is punitive in nature, it may be barred. See Coffey v.
United States,116 U.S. 436 (1886); compare Coffey with One Lot Emerald Cut Stones v.
United States, 409 U.S. 232 (1972); see also Standlee v. Rhay, 557 F.2d 1303, n.2 (9 Cir.

1977).
3 Although the standard of evidence necessary to establish deportability has changed
since 1914 (see Woodby v.INS, 385 U.S. 276 (1966), the court's reasoning in Levris v. Frick
is equally applicable today.

583

Interim Decision #2839
willfully attempted to evade the tar. That acquittal on a criminal charge is not a bar to
a civil action by the Government, remedial in its nature, arising out of the same facts
on which the criminal proceeding was based has long been settled. ... Where the
objective of the subsequent action likewise is punishment, the acquittal is a bar,
because to entertain the second proceeding for punishment would subject the
defendant to double jeopardy; and double jeopardy is precluded by the Fifth Amendment whether the verdict was an acquittal or a conviction.. ..

Havering v. Mitchell, supra, at 397.
The Supreme Court has recently set forth other sound reasons for
not applying collateral estoppel to preclude re-litigation of issues
covered by a prior acquittal. In Standefer v. United States,100 S. Ct.
1999 (1980), the petitioner had been convicted on nine counts of an
indictment, including five counts charging him with aiding and abetting a public official in accepting unauthorized compensation. Prior to
the petitioner's trial, the Internal Revenue Service agent whom he had
allegedly aided and abetted was acquitted of all charges alleging that
he had received unlawful compensation. The Court held that the
government was not barred by the doctrine of nonmutual collateral
estoppel from re-litigating the issue of whether the agent had accepted
unlawful compensation despite his acquittal on those charges. The
Court noted that in a criminal case the government is often without
the kind of "full and fair opportunity to litigate" that is a prerequisite
to estoppel. The Court observed that the prosecution's rights of discovery are limited by rules of court and the accused's constitutional
privileges; the prosecution cannot be granted a directed verdict or a
judgment notwithstanding the verdict no matter how clear the
evidence of guilt, compare Federal Rule of Civil Procedure 50; it cannot
secure a new trial on the ground that an acquittal was plainly contrary
to the weight of the evidence, compare Federal Rule of Civil Procedure
59; and it cannot appeal from an acquittal, see United States v. Sall,163

U.S. 662 (1896). The Court also commented that the application of
nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion which are unique to our
criminal law.
While in Standefer the Court was addressing nonmutual estoppel in
the context of a criminal case, the considerations discussed above are
equally applicable where the subsequent case is a civil one, such as the
instant deportation proceedings. The Court's arguments are particularly applicable in this case because the record does not contain a copy
of the transcript of the trial at which the judge merely granted the
respondent's motion for a directed verdict of acquittal.
Thus, we conclude that the respondent's acquittal on the charge of
heing an alien found in the United States after deportation in violation
of 18 U.S.C. 1326 does not preclude litigation of the respondent's
584

Interim Decision #2839
nationality status in deportation proceedings. Cf. Lewis v. Frick,
supra.
The respondent's December 8, 1970, conviction for making false
claims to United States citizenship in violation of 18 U.S.C. 911 would
ordinarily estop him from claiming United States citizenship from
birth. See United States v. Rangel-Perez, 179 F.Supp. 619 (S.D. Ca.
1959); Pena-Cabanillas v. United States, 394 F.2d 785 (9 Cir. 1968);
United States v. Bejax Matrecios, 618 F.2d 81 (9 Cir. 1980). However, in
-

view of the respondent's subsequent acquittal purportedly on the basis
of a finding of citizenship, we think it inappropriate to dispose of this
case by applying collateral estoppel. We will instead examine the
evidence of alienage, and thus deportability, to see whether it is clear,
convincing, and unequivocal. We find that it is. The evidence of
alienage is as follows:
1) The respondent was granted voluntary return to Mexico in 1966.
2) The respondent's birth ccrtiflcate reflects that "... citizen Cirillo Perez, single,
Mexican, farmer, 31 (thirty-one) years of age. Native of Zepatillan, Jallisco and
rosidant of Jegarivrrtite of this area (emphasis added), and said that on the 2nd day of
October of the current year (1944) at about .4 o'clock in the morning, in his home,
without number of said ranch, was born a live male child (the respondent) ....
3) On December 8, 1970, the respondent was convicted of making false claims to
United States eiti7snalairk
4) In an affidavit dated January 24, 1974, the respondent said "I am a citizen and
resident of Mexico."
5) In a deportation hearing on February 31, 1974, the respondent testified under oath
that he was not a citizen or national of the United States but that he was a citizen of
Mexico.
,

Contradicting this evidence of alienage is the respondent's testimony that he is a United States citizen, a statement by his counsel
that the respondent's baptismal certificate will support the respondent's testimony, and a statement by counsel that the respondent's
parents testified at his criminal trial that the respondent was born in
the United States and taken to Mexico where his birth was recorded.

In a deportation case the Government must prove deportability by
clear, convincing, and unequivocal evidence. However, when the
Government establishes a prima facie case of deportability, the burden
shifts to the respondent to go forward with the evidence. In this case,
the Government has presented abundant evidence of alienage while
the respondent has presented only his testimony. Counsel's brief and
comments to the immigration judge are not evidence.
The respondent has been given ample opportunity to present
evidence in his defense. The Order to Show Cause was issued on
February 2, 1978. The hearing was first convened on May 18 and the
Government presented its evidence of alienage. Counsel for the respondent asked for a continuance for the purpose of obtaining a
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Interim Decision #2839
transcript of the record of the respondent's acquittal. The continuance
was granted. The hearing was resumed on June 29. The respondent
appeared without counsel and the immigration judge continued the
case. On August 10, 1978, the respondent appeared again without
counsel. The immigration judge gave the respondent a legal aid referral list and again continued the case until August 14, 1978. On that date
the respondent appeared with present counsel, Mr. Campos. Counsel
advised the immigration judge that he had requested a copy of the
transcript of the respondent's acquittal but that he did not know when
it would be ready. He also offered a copy of the respondent's baptismal
certificate. However, the immigration judge refused to admit the certificate into evidence because it was not properly certified or attested.
See 8 C.F.R. 287.6. The immigration judge adjourned the hearing until
September 27 to give counsel an opportunity to obtain the necessary
certification and/or the transcript. On October 25, 1978, the Bearing
resumed. The respondent appeared again without counsel. He advised
the immigration judge that he did not have the money to purchase a
transcript of his prior hearing. The immigration judge then proceeded
to a decision.
Thus, the respondent was given four continuances over a 5-month
period, two of which were granted for the specific purpose of allowing
him an opportunity to obtain evidence of the place of his birth and a
copy of the transcript of the record of his acquittal. No such evidence
was produced..CounseI for the respondent has filed a brief on appeal in
which he referred to the evidence, but he did not attach it. It has been 2
years since the immigration judge's decision, and the respondent still
has not offered that evidence.
Accordingly, the appeal will be dismissed. However, if the respondent produces the evidence discussed above in a form which is admissible in deportation proceedings, we will reopen the proceedings to
consider his evidence.
ORDER. The appeal is dismissed.
FURTHER ORDER' The respondent is permitted to depart from
the United States voluntarily within 30 days from the date of this

order; and in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.

586


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Interim Decision #3846

Matter of D-M-C-P-, Applicant
Decided August 5, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Neither an Immigration Judge nor the Board of Immigration Appeals has jurisdiction
to consider whether asylum-only proceedings were improvidently instituted pursuant
to a referral under the Visa Waiver Program.
(2) It is improper to deem an application for relief abandoned based on the applicant’s
failure to comply with the biometrics filing requirement where the record does not
reflect that the applicant received notification advisories concerning that requirement,
was given a deadline for submitting the biometrics, and was advised of the
consequences of his or her failure to comply.
FOR APPLICANT: Timothy R. Woods, Esquire, Baltimore, Maryland
BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.
WENDTLAND, Board Member:

In a decision dated September 18, 2012, an Immigration Judge found
that the applicant had abandoned his applications for asylum, withholding
of removal, and protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and
opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR
Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force
June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against
Torture”). The applicant has appealed from that decision, arguing, as a
threshold matter, that he was improvidently placed into asylum-only
proceedings by the Department of Homeland Security (“DHS”) because he
had not been admitted under the Visa Waiver Program (“VWP”). The
appeal will be sustained in part and dismissed in part, and the record will be
remanded to the Immigration Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
The following facts are not in dispute. The applicant is a native and
citizen of Argentina who arrived in the United States on April 26, 1999.
On May 9, 2011, the DHS issued an administrative order of removal
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Interim Decision #3846

pursuant to section 217 of the Immigration and Nationality Act, 8 U.S.C.
§ 1187 (2006), based on the applicant’s alleged violation of the conditions
of his admission under the VWP. The applicant expressed a fear of
returning to Argentina, and on June 23, 2011, his case was referred to the
Immigration Court for asylum-only proceedings pursuant to 8 C.F.R.
§ 217.4 (2011).
During a July 6, 2011, master calendar hearing, the applicant argued
that he had been improperly placed into asylum-only proceedings. He
asked to be placed into removal proceedings so that he could pursue
cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C.
§ 1229b(b)(1) (2006). The applicant also requested a continuance,
explaining that he had filed a petition for review with the United States
Court of Appeals for the Fourth Circuit challenging his placement into
asylum-only proceedings.
The Immigration Judge denied the continuance request and directed the
applicant to submit his application for asylum, which he filed during an
August 3, 2011, master calendar hearing. The applicant then informed the
Immigration Judge during a November 15, 2011, master calendar hearing
that his petition for review had been dismissed by the Fourth Circuit
because his administrative proceedings were still pending. An individual
hearing was scheduled for August 30, 2012, and was later rescheduled
for September 18, 2012. The applicant filed a motion to continue on
September 4, 2012, requesting additional time for his attorney to
prepare his case. That motion was denied by the Immigration Judge on
September 6, 2012.
During the September 18, 2012, individual hearing, the DHS advised
the Immigration Judge that the applicant’s fingerprints had been taken the
previous week but that there was insufficient time to process the required
background and security clearances prior to the hearing. Consequently, the
applicant requested a continuance. The Immigration Judge denied the
motion for a continuance and found that the applicant had abandoned his
applications for relief from removal.

II. ANALYSIS
As a threshold matter, the applicant asserts that the Immigration Judge
should have held that the DHS improvidently placed him into limited
asylum-only proceedings because, contrary to the DHS’s determination, he
had not been admitted under the VWP. In addition, he argues that the
Immigration Judge erred in finding that he had abandoned his applications
for relief, even though he had his fingerprints taken 4 days prior to the
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Interim Decision #3846

hearing. Finally, the applicant contends that the Immigration Judge erred in
denying his motion to continue the proceedings, which the DHS did not
oppose on the day of the hearing, and he requests that the record be
remanded to the Immigration Judge for further proceedings.
A. Jurisdiction
Pursuant to section 217(b) of the Act, the requirement that an alien
seeking admission as a nonimmigrant must possess a valid nonimmigrant
visa at the time of application for admission may be waived for an alien
who agrees to waive any right
(1) to review or appeal under the Act of an immigration officer’s determination
as to the admissibility of the alien at the port of entry into the United States, or
(2) to contest, other than on the basis of an application for asylum, any action for
removal of the alien.

Where an immigration officer determines that an individual is an
applicant for admission under the VWP and is inadmissible, the applicant
will be refused admission into the United States and removed, without
referral to an Immigration Judge for a determination of deportability, except
that an Immigration Judge has jurisdiction over any application for asylum,
withholding of removal, or protection under the Convention Against
Torture filed by the alien. See 8 C.F.R. §§ 208.2(c)(1)(iii), (3)(i), 217.4(a),
1208.2(c)(1)(iii), (3)(i) (2015); see also Matter of Kanagasundram, 22 I&N
Dec. 963 (BIA 1999). Similarly, an individual who already has been
admitted to the United States under the VWP and is determined by an
immigration officer to be deportable from the United States will be
removed to his or her country of nationality or last residence unless the
applicant requests an opportunity to have a claim for asylum and related
relief heard by an Immigration Judge. See 8 C.F.R. §§ 208.2(c)(1)(iv),
(3)(i), 217.4(b), 1208.2(c)(1)(iv), (3)(i).
The regulations expressly provide that in such referred asylum-only
proceedings, the “scope of review . . . shall be limited to a determination of
whether the alien is eligible for asylum or withholding or deferral of
removal, and whether asylum shall be granted in the exercise of discretion,”
and “all parties are prohibited from raising or considering any other issues,
including but not limited to issues of admissibility, deportability,
eligibility for waivers, and eligibility for any other form of relief.”
8 C.F.R. §§ 208.2(c)(3)(i), 1208.2(c)(3)(i); see also Matter of A-W-,
25 I&N Dec. 45, 46 n.1, 47−48 (BIA 2009); cf. 8 C.F.R. § 1003.19(h)(2)(ii)
(2015) (stating explicitly that nothing in the regulation should “be
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Interim Decision #3846

construed as prohibiting an alien from seeking a determination by an
immigration judge that the alien is not properly included” within the
category of aliens subject to mandatory detention).
Based on the foregoing limitations imposed by regulation and statute,
we conclude that asylum-only proceedings present a significantly limited
scope of issues for the Immigration Judge to review. In that regard, neither
the Immigration Judge nor we have jurisdiction to consider whether such
proceedings were improvidently instituted pursuant to a referral under the
VWP program.1
We note that if jurisdiction to consider a challenge to the DHS’s
determination that an alien is or was a VWP applicant lies with any entity,
it is with the Federal courts. Several courts of appeals have determined that
they have jurisdiction to review removal orders issued by the DHS where
a VWP entrant challenges the validity of the waiver of the right to contest
removal except on the basis of an asylum claim. Bingham v. Holder, 637
F.3d 1040, 1043 (9th Cir. 2011) (finding jurisdiction to review a VWP
entrant’s final order of removal under section 242(a)(1) of the Act, 8 U.S.C.
§ 1252(a)(1) (2006)); Bradley v. Att’y Gen. of U.S., 603 F.3d 235,
237 n.1 (3d Cir. 2010) (same); Bayo v. Napolitano, 593 F.3d 495, 500
(7th Cir. 2010) (en banc) (same); see also McCarthy v. Mukasey, 555 F.3d
459 (5th Cir. 2009).
B. Biometrics Requirements
The applicant has also challenged the Immigration Judge’s
determination that he abandoned his applications for relief from removal.
Under the governing regulations, applicants for asylum, withholding of
removal, and protection under the Convention Against Torture are required
to submit to identity, law enforcement, or security investigations or
1

We acknowledge that in Matter of Kanagasundram, 22 I&N Dec. at 964−65, we held
that an applicant’s removal proceedings were properly terminated where section 217 of
the Act required adjudication of his asylum application in proceedings commenced by the
issuance of a Form I-863 (Notice of Referral to Immigration Judge), since he had been
refused admission under the VWP. However, that case did not address whether the
converse is true―namely, whether an Immigration Judge or the Board has authority to
terminate proceedings commenced by a Form I-863 under the VWP provisions based on
a determination that proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2012),
are required instead. It is therefore not inconsistent with the outcome we reach
here. Moreover, Kanagasundram did not implicate a regulation such as 8 C.F.R.
§ 1208.2(c)(3)(i), which expressly limits jurisdiction by restricting the scope of the
review that the Board or an Immigration Judge may undertake.

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Interim Decision #3846

examinations, which include the submission of biometrics and other
biographical information. See 8 C.F.R. § 1003.47(b)(1), (7), (d) (2015).
According to the regulation at 8 C.F.R. § 1003.47(d),
At any hearing at which [an applicant] expresses an intention to file or files an
application for relief for which identity, law enforcement, or security investigations
or examinations are required . . . , unless [the] DHS advises the immigration judge
that such information is unnecessary in the particular case, [the] DHS shall notify
the [applicant] of the need to provide biometrics and other biographical information
and shall provide a biometrics notice and instructions to the [applicant] for such
procedures. The immigration judge shall specify for the record when the
[applicant] receives the biometrics notice and instructions, and the consequences
for failing to comply with [these] requirements . . . .

Failure to comply with the biometrics requirement “within the time
allowed” constitutes abandonment of the application, and the Immigration
Judge may then dismiss the application, unless the applicant demonstrates
that such failure was the result of good cause. 8 C.F.R. § 1003.47(c), (d).
We find additional guidance in an interim Operation Policies and
Procedures Memorandum (“OPPM”) issued by the Office of the Chief
Immigration Judge, entitled “Background and Security Investigations in
Proceedings before Immigration Judges and the Board of Immigration
Appeals,” which states the following:
When [an applicant] states his or her intent to file an application for a covered
form of relief, counsel for [the] DHS must provide [the applicant] with the DHS
biometrics instructions form which will inform the [applicant] that he or she must
mail a copy of his or her application to a specific DHS office in order to get a
biometrics appointment, unless [the] DHS advises the Immigration Judge that such
information is unnecessary in the particular case. The DHS will then request a
reasonable period of time for (1) the [applicant] to comply with the DHS
biometrics instructions, and (2) [the] DHS to initiate and complete the necessary
background investigations and security checks.
Thereafter, the Immigration Judge, on the record, must inform the [applicant]:
(1) that the DHS has provided him or her with the biometrics instructions form;
(2) of the date he or she must comply with those instructions; and (3) that failure to
comply with those instructions or later provide biometrics or other biographical
information to [the] DHS, without good cause, will constitute an abandonment of
the application for relief and an order will be entered dismissing the application.

OPPM 05-03, at 3 (Mar. 28, 2005) (footnote omitted).
We note that the regulations and this memorandum are consistent with
respect to the required instructions and advisals for covered forms of relief
from removal. Considering these provisions together, we conclude that to
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Interim Decision #3846

ensure that an asylum applicant receives proper notice of the biometrics
requirements, the Immigration Judge should do all of the following on the
record: (1) ensure that the DHS has advised the applicant of the need to
provide biometrics and other biographical information and has furnished
the appropriate instructions; (2) inform the applicant of the deadline for
complying with the requirements of which he has been notified; and
(3) inform the applicant of the consequences of noncompliance, including
the possibility that the application will be deemed abandoned and
dismissed, unless the failure to comply resulted from good cause.2
As to the amount of time that should be allowed for an applicant to
comply with the biometrics instructions, there is no specific guidance in the
regulations or the memorandum, which give the Immigration Judge
discretion to make that determination on the basis of the individual
circumstances of the case. According to the memorandum, the DHS will
request a “reasonable period of time” for the applicant to comply with the
instructions on the biometrics instruction form and for the completion of
the necessary background investigations and security checks, presumably
based on the particular factors in each case. OPPM 05-03, supra, at 3. The
Immigration Judge should then set the deadline by which the applicant
must comply with those instructions based on this request. In addition, the
Immigration Judge should schedule the merits hearing for a date that
affords the applicant “a reasonable period of time to comply with the DHS
biometrics instructions and the DHS time to complete the background
investigations and security checks.” Id. at 3−4.
It is clear that the “deadline” that must be met by an applicant pertains
to the timing of his own submission of his biometrics information to the
DHS, not the timing of the DHS’s subsequent completion of its
investigations and checks, a matter that is largely outside the applicant’s
control. Id. at 4 (stating that if an applicant does not show good cause for
noncompliance with the biometrics instructions, the Immigration Judge
may deem the application abandoned, but permitting the DHS to seek a
continuance if additional time is needed to complete the background
investigations and security checks).
In this case, the applicant appeared at master calendar hearings on
July 6, 2011, August 3, 2011, and November 15, 2011. At the conclusion
of the November 15, 2011, hearing, the Immigration Judge set the case for
an individual hearing on August 30, 2012, to adjudicate the applicant’s
applications for relief. A hearing notice reflects that the individual hearing
2

We conclude that the requirement to set forth a specific deadline is implicit in the
regulatory language “within the time allowed.” 8 C.F.R. § 1003.47(c), (d).

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Interim Decision #3846

was reset to September 18, 2012. In his decision issued on that date, the
Immigration Judge found that the DHS did not have an adequate
opportunity to review the applicant’s fingerprints and biometrics because
the fingerprints had been taken only 4 days earlier. Accordingly, he
determined that the applicant had abandoned his applications for relief by
not expeditiously having his fingerprints taken.
The record does not reflect that the applicant received the notification
advisories concerning the biometrics filing requirement, and there is no
indication that he was either given a deadline for submitting the biometrics
or advised of the consequences of failure to comply, including the
possibility that his applications would be deemed abandoned. The
regulations state that such notice and warnings must be given to the
applicant and clearly suggest that “the time allowed” for compliance must
be specified by the Immigration Judge. See 8 C.F.R. § 1003.47(c), (d);
accord OPPM 05-03, supra, at 3. Under these circumstances, we conclude
that the Immigration Judge improperly determined that the applicant
abandoned his applications for relief from removal. Accordingly, the
applicant’s appeal in this regard will be sustained and the record will be
remanded for further consideration of his applications.
Given our disposition in this case, we need not address the applicant’s
argument that the Immigration Judge erred in denying his motion to
continue the proceedings.
ORDER: The applicant’s appeal in regard to his placement in
asylum-only proceedings is dismissed for lack of jurisdiction.
FURTHER ORDER: The applicant’s appeal from the Immigration
Judge’s determination that he abandoned his applications for relief from
removal is sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

650


Interim Decision 44401

MArrun OF JENSEN
In EXCLUSION Proceedings
A-14102045
Decided by Board October 30, 1964
Notwithstanding forgery and uttering are defined as separate offenses in section 309 (1) and 311, respectively, Canadian Criminal Code, a conviction in
Canada of forgery and uttering constitutes, under standards prevailing in the
United States, the commission of a single crime involving moral turpitude
within the meaning of section 212(a) (9), Immigration and Nationality Act.
EXCLUDABLE :

Act of 102—Section 212(a) (9) 18 U.S.C. 1182(a) (9)3—Convicted
of crime involving moral turpitude: forgery, section 310(1)

and uttering, section 311(a), Canadian Criminal Code.

The applicant, a native and citizen of Canada, applied for admission to the United States at the port of Piegan, Montana on August 11,
1964. He presented a nonquota immigration visa issued by the United
States Consul at Calgary, Alberta, Canada on the same day. He was
held for a hearing before a special inquiry officer because of a conviction in Canada on December 6, 1957 for wilfully and knowingly
forging and uttering a cheek in the amount of $20.00. The special
inquiry tinker concludes that the applicant's conviction for forgery
and uttering constitutes the commission of a single crime involving
moral turpitude within the meaning of the exception to section 212
(a) (9) of the Immigration and Nationality Act, notwithstanding
the fact that forgery and uttering are defined as separate offenses in
the Canadian Criminal Code.1 The case has been certified to this
Board for final decision.
1 Section 309(1), Canadian Criminal Code, defines the crime of forgery as
follows:
"Every one commits forgery who makes a false document, knowing it to be
false, with intent (a) that it should in any way be used or acted upon as genuine,
to the prejudice of any one whether within Canada or not, or (b) that some
person should be induced, by the belief that it is genuine to do or to refrain
from doing anything, whether within Canada or not".
Section 311 of the Canadian Criminal Code defines the crime of uttering a
forged document as follows :

• Footnote continued on following page.

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Interim Decision #1401
The applicant was born December 14, 1940 at Cardston, Alberta,
Canada. He was 16 years of age when he forged a, check in the amount
of $20 for the purchase of a. high school sweater emblazoned with a
school letter that he had -won as a member of the basketball team.
He testified that his father was unable to provide him with the funds
he needed for this purchase. This is his only offense either in the
United States or in Canada.
Section 212(a) (9) of the Immigration and Nationality Act provides
in substance that an alien is ineligible to receive a visa and shall be
excluded from the United States if he has been convicted of a crime
involving moral turpitude. However an alien who has committed
only one such crime while under the age of 18 years, may be granted
a visa and admitted to the United States provided the crime was
committed more than five years prior to the date of the application
for a visa and more than five years prior to the date of application for
admission to the United States.
The applicant applied for a, visa at the Calgary Consulate on June 30,
1964. He applied for admission to the United States on August 11,
1964. He was approximately 16 years and 11 months of age when

he committed the offense here under consideration. It is well established that the crimes of forgery and uttering involve moral turpi-

tude.2 The only issue presented by the case is whether under standards prevailing in the United States the applicant has committed
"only one such crime" within the meaning of section 212(a) (9) of
the Immigration and Nationality Act (8 U.S.C. 1182 (a) (9) ).
The Canadian Criminal Code defines the forming and uttering of a
document as two separate offenses (supra, footnote 1). The Criminal
Codes of some of our States have separate provisions for the crimes
of forging and uttering a document. 3 Notwithstanding this fact it
has been generally held in the United States that the making of a
forged written instrument and the uttering of it by the same person,
at the time, as one transaction, constitute but one offense.' It is also
the general rule in the Federal Courts that where the several counts of
Footnote continued.

"Every one who, knowing that a document is forged, (a) uses, deals with, or
acts upon it, and (b) causes or attempts to cause any person to use, deal with, or
act upon it, as if the document were genuine, is guilty of an indictable offense
and is liable to imprisonment for fourteen years".
2 %/Orden v. De George, 341 U.S. 223 (1951).
° See Chapter 020 at the Wannesota Statute Annotated; Oregon Revised Stutntes, 1953, Chapters 165.105 and 165.115; Article 84, McKinley Consolidated Laws
of New York.
*State v. Elughero, 98 N.W. 99, Supreme Court of Minnesota, 1901; People
v. Adler, 140 N.X. 331, 30 N.B. 044; Daugherty v. °laden, 341 P. 2d 1080, 1077
Supreme Court of Oregon, 1959.

748

Interim Decision #1401
an indictment charge both forgery and uttering and the forging and
uttering are parts of a single transaction, the sentence bused on a
general verdict or plea of guilty must impose only one penalty .. .
a separate sentence for each count is erroneous and void.'
It is not clear from the record before us as to whether the Canadian
Court imposed a separate sentence for each offense committed by the
applicant. The records of conviction merely show that he was given
a "one year suspended sentence." Regardless of this fact we conclude that under standards prevailing in. the United States 6 the applicant "committed only one such crime" within the meaning of the
exception set forth in section 212(a) (9) of the Immigration and
Nationality Act when he committed the offenses defined by sections
309(1) and 311 of the Canadian Criminal Code on November 5, 1957

at Cardston, Alberta, Canada. An appropriate order will be entered.
ORDER: The decision and order admitting the applicant to the
United States for permanent residence, entered by the special inquiry
officer on August 28, 1964 is hereby affirmed.
United States v. Carpenter, 151 Fed. 214, 215 (C.A. 9, 1907) ; Simon T. United
Stales, 37 Appeals D.C. 280, Supreme Court D.C., 1911.
° Matter of T—, 2 I. & N. Dec. 22, 42 ; Giamnzariou v. Harney, 311 P. 2d
285, 1062.

749