Interim Decision #1647

MATTER OF

Hanik

In Deportation Proceedings
A-14493789
Decided by Board October 24, 1905 And March, 1,1966

Affirm,ed by Attorney General September 30, 1966
An alien who, in behalf of his employer, a Hong Kong manufacturer of custom
made men's clothing. 'travels to various cities in the United Stateq to take
orders from, and the measurements of, 'prospective eflatomers whom be
does not solicit but by whom he is contacted as the result of literature
distributed in this country by his employer; who sends the order, together
with the purchase price, to his employer in Hong Kong; and who receives
only expense money while in this country, his monthly saiary being sent
to his parents in India by his employer, is engaged in intercourse of a
commercial character, and, having indicated he would return to Hong Kong
at the termination of his authorized stay, his sojourn here is of a temporary character, and he Is eligible for nonimmigrant classification as a
visitor for business under section 101(a) (15)•(B) of the Immigration and
Nationality Act.
CHARGES

Order: Act of 1952—Section 241(a) (9) [8 13.8.0. 1251(a) (9)3—Failed to
maintain status of admission—Visitor for business.
Lodged: Aet of 1952—Section 241(a) (1) [8 HMG, 1251(a) (1)3—Immigrant
without visa [section 212(a) (20), 8 U.S.C. 1182
(a) (20)1.
BEFORE THE BOARD

The case comes forward on appeal from the order of the special
inquiry officer dated April 8, 1965 finding the respondent deportable
on the charge contained in the order to show cause and upon the
lodged charge, granting him voluntary departure with the further
order that if he failed to depart when and as required he be deported
to Hong Kong, in the alternative, to India.
The record relates to a native and citizen of India, 28 years old,
male, single, who last entered the United States at Detroit, Michigan
on or about February 12, 1965 at which time he was admitted to the
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Interim Decision #1647
United States as a visitor for business until April . 14, 1965. He,
had originally entered the United- States on. or about September 14,
1963 at Honolulu, Hawaii as a visitor for business authorized to
remain in the United. States until March 14,_ 1964. On August 26,
1964 the respondent applied for an extension of his temporary stay,
setting forth-the reason therefor that it was for the puipose, of ‘`for
further study of market'? On tbsi basis of this application on
August 27, 1964 he was granted an extension of his stay in the
'United States as a visitor for business fora period to expire April
14, 1965. The order to show cause was served March 2, 1965 and
the hearing in deportation proceedings was held an March ,25, 1965.

At the deportation hearing the respondent presented an Indian
passport issued at Hong Kong on May 19, 1962 valid to May 18,
1965. The passport contains a '93-1" nonimmigrant visa issued to
him at the American Embassy at Hong Kong on September 4, 1963
valid for an unlimited number of admissions to the United. States,
to March 4, 1964. The application for a passport (Es. 2) indicates
that a Mr. Melwani, manager of Mohan's, the respondent's employer,

appeared. at the Consulste on March 15, .1963 and stated that the ,
respondent would be selling clothes at the New York store. On
September 4, 1963 the applipation for a visa contains a notation that
Mr. Melwani has submitted a statement indicating that the respondent is being sent to take .orders for the Hong, Kong. store and the
visa was issued on that date to the respondent. ,
The facts- concerning the nature of the respondent's emplOyment

are not in dispute., The respondent, in behalf of his employer,
Mohan's, Ltd., of Hong Kong, travels to various cities in the United
States taking the customers'. measurements., The purchase price of
the merchandise is sent to the einployer t in:Hang Kong, either bythe respondent or directly by the customer. .The -respenderit testified
that he does not solicit customers in the United States but takes
orders only from persons who contact him as a result of literature
distributed byhis employer in thi.sconntry making' knolln his itinerary, the items he has .available for sale and in.,..ndiat hotel he may
be contacted.
The respondent testified that he works on a straight salary basis
plus an allowance for living and business expense's. 'His saliry is
$60 Hong tong a rnonth, - anNiuntirig- to approximately - $100 U.S.
He testified he receives no percentage of the value of • the orders which he takes but might receive a bonus depending on the volume
of business upon his return to -Hong Kong: :While the 'respondent
is in the United States his employer sends his monthly salary 'to his

,

825

,

Interim Decision #1647
parents in India. The expense money is estimated to amount to
about $800 per month. He has no other income than that received
from his employment by Mohan's Ltd., of Hong Kong.
The respondent has denied that the use of the terms "study the
United States business market" and "further study of business
market" in his applications for extension of temporary stay (Exs.
3 and 4) were designed to be vague or misleading. He explained
that according to his understanding, further study of the market
is the same as the business he was doing: a notice would be sent to
Hong Kong and the company in Hong Kong would obtain a further
extension for the study of the market because they would have
knowledge of how much more business they could secure from the
United States and he would inform them as to colors and styling
which would be in fashion in the United States (pp. 36-37, 57-59).
the record indicates that the respondent'S employer in Hong Kong
buys American textiles. The respondent also testified that his employer formerly made sales in this country entirely through the use
of catalogs and other literature and that the individual under such
circumstances took his own measurements and then sent the orders
to Hong Kong. The respondent displays swatches of materials and
he takes measurements in order to overcome complaints arising out
of poor fit. The price of men's suits varies from $75 to $95, including the customs duty which must be paid by the puichaser upon
receipt of his suit, the duty averaging about 20 percent of the cost
of the garment which is custom made. The respondent's absence to
Canada on or about February 12, 1965 was only for a few hours and
apparently he was admitted upon the basis of his nonimmigrant
visa.
Section 101(a) (15) (B) of the Immigration and Nationality Act
defines the term "immigrant" to mean every alien except an alien
who is within one or more of the following classes of nonimmigrant
aliens:
(B) an alien (other than one coming for the purpose of studying or of
performing skfiled or unskilled labor or as a representative of foreign press,
radio, nba. or other foreign information media coming to engage in such
vocation) having a residence in a foreign country which he bas no intention
of abandoning and who is visiting the United States temporarily for business
or temporarily for pleasure; • • •

Under the heading of "TEMPORARY VISITORS", 22 CM
41.25 provides:

Temporary visitors for business and pleasure.
(a) An alien shall be classified as a nonimmigrant visitor for business or
Pleasure if he establishes to the satisfaction of the consular officer that he

826

Interim Decision 4t1647
qualifies under the provisions of section 101(a) (15) (B) of the Act and
that: (1) he intends to depart from the 'United 'States at the expiration
of his temporary stay; (2) he has permission to enter some foreign country
upon the termination of his temporary stay; and (3) adequate financial provisions have been made to enable him to carry out the purpose of his visit
and to travel to, sojourn in, and depart from the Baited Stater:.
(b) The term "business", as used in section 101(a) (15) (B) of the Act,
refers to legitimate activities of a commercial or professional character.
It does not include purely local employment or labor for hire. An alien
seeking to enter as a nonimmigrant for employment- or labor pursuant to a
contract or other prearrangement shall be required to qualify under the
provisions of section 41.65. An alien of distinguished merit and ability
seeking to enter the United States temporarily with the idea of performing
temporary services of an exceptional nature, requiring such merit and ability,
but having no contract or other prearranged employment, may be classified
as a nonimmigrant temporary visitor for business.
,

The case is one of first impression.. Considerable difficulty has
been experienced in the past in arriving at a clean and workable

definition of "business" within the contemplation of the statute (Gordon and Rosenfeld, Immigration Law and Procedure, Sec. 2.8 (b) ).
Soon after the term visitor for bgsiness was originally designated
in the Act of 1924, the Supreme Court ruled that a primary aim of
the statute was to protect .American labor against the influx of
foreign labor, that "business" contemplated. only ."intercourse of a
commercial character," and that persons who sought to make temporary visits to perform labor were not nonimmigrants.: The visitor
for business designation was retained in the 1952 Act. The authors,
Gordon and Rosenfeld, set forth on pages 127 to 129 of their book
on "Immigration Laws and Procedures" numerous examples of cases
that have been found by the Board to be bona fide nonimmigrants
for business and those who have been found not to come within that
designation. The significant considerations to be stressed are that

there is a clear intent on the part of the alien to continue the foreign
residence and not to abandon the existing domicile; the principal
place of business and the actual place of eventual accrual of profits,
at least predominantly, remains in the foreign country; the business
activity itself need not be temporary, and indeed may long continue;
the various entries into the United States made in the course thereof
must be individually or separately of a plainly temporary nature in
keeping with the existence of the two preceding considerations.:
In the instant case.we are satisfied that the "business" in which the
respondent was engaged was intercourse of a commercial character.
liarnuth v. Albro, 279 U.S. 231 (1929).
Matter of Cortez Vasquez, Int. Dec. No. 1342; Matter of G—P—, 4 L & N.
Dec. 217; Matter of
6 L & N Dec. 255,
2

.

827

Interim Decision #1647
The respondent's salary is paid to him in Hong Kong (no funds
accrue to the respondent in the United States). The American Con-

sulate in Hong Kong, in granting the respondent the nonimmigrant
visa as a visitor for business, had knowledge of the fact that the
respondent was an order taker for the Hong Kong firm (Ex. 2).'
His sojourn in. this country is of a temporary character, the respondent having. indicated that he would. return to Hong Kong upon the
expiration of his temporary stay in the United States or extensions
thereof.
If the respondent were engaged in taking orders for suits at a
wholesale level from large distributors, there would be no questioning
his status. The fact that he takes the measurements of prospective
customers in the United Stites; in connection with the business which
he does not solicit but whose customers are attracted by literature
sent out by the Hong Song firm, does not warrant a finding that

the respondent is not classifiable as a visitor for business. The
labor for the orders taken by the respondent is performed in Hong
Kong and there appears to be no conflict with local labor. Upon a
full consideration of the. evidence in the case, we are satisfied that
the respondent falls within the category of visitor for business as set
forth in the law and regulations. The appeal will be sustained.
ORDER: It is ordered that the appeal be sustained and • the proceedings terminated.
,

BEFORE THE BOARD

The case comes•
on motion of the Service dated December 20,
190 requesting that our order of October 29,-1965 sustaining the
alien's appeal and terminating proceedings- be reconsidered and the
appeal be dismissed. . . .
• Briefly, the record relates to a native and citizen of India, 28 years
old, male, single, who last entered the United States at Detroit, '
Michigan on or about February 12, 1965 when he was admitted to
the United States as a visitor for business until April 14, 1965. He
had originally entered the United States on or about September 14,
1963 at Honolulu, Hawaii as a visitor for business authorized to
remain in the United States until March 11, 1964 which was subsequently extended to April 14, '1965. ' The order to show cause was
served on "March 1965; the hearing in deportation proceedings
was held on March 95; 1985; and an order of the special inquiry

officer dated April 8, 1965 found the respondent deportable on the
charge contained in the order to show cause and upon the lodged,
charge, but granted him the privilege of voluntary departure with

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Interim Decision #1647
an automatic order of-deportation to Hong Kong or in the alternative, to India, in. the event he failed to depart as required. The
prolongation of the time the respondent has spent- in the United
States by virture of the appeal and the motion to reconsider has
not been attributable to the respondent -but .from considerations
SA wherein the
arising out of the possible applicability of. 8
departure of the respondent might be considered as a withdrawal -of
the appeal:
..
The facts as to the nature of the respondent's employment are not
in dispute. In behalf of his employer, Mohan's Ltd., of HongKong,
a manufacturer of custom or made :to :measure men's clothing, the
respondent travels to various (titles. in_ the -United' States and takes
orders from customers whom he does not solicit but -who contact him
as the result of literature distributed by-his employer in this country
making known his itinerary, the items he has available for sale and
in what hotels he may be . contacted. - . The respondent _ displays
swatches of .clothfrom which the..customer makes his choice r he takes
the customer's measurements and sends- the_order together with the
purchase price to his employer- in Bong - Kong. This practice. succeeded a prior practice engaged in by the respondent's employer in
which the employer made sales in-this country entirely through the
use of catalogs, the -individual taking . his. 'own, measurements and
then sending the order to Hong Kong. However, -complaints arose
due to poor-fit and the present-procedure was adopted. The respondent earns a salary of about $100 a month plus a -bonus depending
upon the. volume of his-business, the amount of such •onus being
undisclosed. The employer sends respondent's salary to his parents
in India and the respondent receives only expense money amounting
to about $800 per month while in the :United States.. .
Aware that the term - "visitor- for business" contemplated. only
"intercourse of a commercial character," -1 and bearing in.niind that
the significant considerations to be stressed were that there is a clear
intent. on the part of the alien to continue a. foreign residence and
not to abandon any existing domicile; the principal place of business and the actual place of eventual accrual of Profits; at least predominantly, remains in the'foreign -cbuntry ; -the Iniainess activity
itself need not be temporary and indeed 'May long Oontimie;'• the
various entries in the United States made iii the Course thereof must
be individually or separately of a plainly temporary nature in keeping with the existence of the two preceding considerations, we Ionid
that the respondent fell within the category of a'irieifor for business

on-

•

I-Koltun!. v. A7bro, 279 U.S. 231.

829

Interim -Decision #1641
as set forth in the law and regulations. We found that the business was intercourse of a commercial character, and the fact that
he took measurements of prospective retail customers in the United
States in connection with the business, under the circumstances of
the case, did not warrant a finding that the respondent was not
classifiable as a visitor for business.
We recognize that the line of demarcation between a visitor for
business, and a person in seeking to enter as a nonimmigrant for
employment or labor 'for which the procedure referred to 22 CFR
41.55, the provisions of section 214(e) of the Act and the supporting evidence required by 8 CFR 214.2(h) (ii) is applicable, is sometimes difficult to draw. However, the Act in section 101(a) (15) (B),
still retains the category of a visitor for business. There is no indication that Congress intended to eliminate this category. Upon
a determination that the. business the respondent was engaged in
was intercourse of a commercial character, and after carefully weighing the significant considerations set forth in prior administrative
decisions, we came to the conclusion that the respondent was truly
a visitor for business. The argument of the Service that the respondent is not a "businessman" within the meaning of the statute
appears to be fallacious. The cases set forth in Matter of 9 , 6
I. & N. Dee. 255, in note 3 list a great many cases in which it was
held that the alien was entitled to the status of a temporary visitor
for business. An examination of these cases shows that the great
majority were aliens who could not be considered as "businessmen"
or even skilled, but in every case there was involved international
trade or commerce and the employment was a necessary incident
thereto.
Upon a full consideration of the matters set forth in the motion,
—

we ail= our prior decision. The motion will be denied.

ORDER: It is ordered that the motion be and the same is hereby
denied.
-

BEFORE THE ATTORNEY GENERAL

The decision of the Board of Immigration Appeals in this case
holding the respondent Hotu J. Hira alias Harry Hira to be a temporary visitor for business within section 101(a) (15) (B) of the Im-

migration and Nationality Act has been certified to me by the Board
for review, pursuant to 8 CFR 3.1(h) (1) (iii), upon motion of the ,
Commissioner of Immigration and Naturalization.
For the reasons stated in the Board's opinions of October 29, 1965
and March 1, 1966 the decision of the Board of Immigration Appeals
is affirmed.
830


MATTER OF G—

In DEPORTATION Proceedings
A-11292757

Decided by Board May 6, 1959
of eitiAenoltip —Voting in foreign political election (ricetion 401(o), Nationality Act of 1940)—Claim of fear, where believed, sufficient to put voluntariness in issue.

Loss

Government's burden of proving voluntariness of expatriating conduct by clear,
convincing, and unequivocal evidence is not met under section 401(e) of the
Nationality Act of 1940 where uncorroborated testimony of native-born
United States citizen shows that he voted in Greece in 1951 under a genuine,
if unfoundorl, lone of harm or reprisal for failure to vote.
CHARGE:

Order to Show Cause: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a)
(2)l—neummeo longer roan toe pernOttet1 period
after admission as a nonimmigrant seaman.
BEFORE THE BOARD

Discussion: This case is before us on certification of the order
of the special inquiry officer, dated November 5, 1958, holding that
respondent is still a United States citizen and terminating the deportation proceedings. Respondent acquired United States citizenship at birth at Mobile, Alabama, on August 12, 1926. In 1929, his
parents took him to Greece to live and he remained in that country
until his last entry on December 17, 1957, as a seaman.
In 1948, while living on the Island of Andros in Greece, respondent's name was entered on the list for Greek naval service and about
a month later he was called for such service. Respondent testified
that he protested such service, but was told that if he failed to serve
he would be branded a communist and also he would be punished
by a court martial.
He served in the Greek Navy from April 2, 1948, to April 25,
1950, admittedly taking an oath of allegiance in June 1948. According to Greek law, a prospective inductee who failed to appear
would be subject to 2 additional years' military service and criminal
penalties.
317

In 1050 and twice in 1951, respondent voted in elections in his
native village. Respondent testified that he feared being branded
a communist if he 4.11.d to vote and also was of the impression that
the homes of persons who failed to vote would be burned.. On
February 23, 1952, respondent applied for registration as a United.
States citizen.
The special inquiry officer concluded that the Government had
failed to prove that respondent's entry into the Greek Navy was
voluntary and, therefore, the Government had failed to discharge
its burden of proof in this regard. Concerning voting, the special
inquiry officer concluded that respondent's actions were involuntary
for they were the result of fear that he would be branded a communist and that harm ,eight moult to his family if he failed to vote.
Again, the special inquiry officer concluded that the Government
had failed to discharge the burden of proving the voluntary character of respondent's acts of voting in order to support their contention of loss of citizenship. Hence, respondent was still considered
to be a citizen and the deportation proceedings inappropriate.
The e -vomining officer has appealed from this decision on the issue
of expatriation under section 401(c) of the Nationality At of 1940
by foreign army service and on the question of expatriation under
section 401(e) of the Nationality Act of 1940 in connection with two
acts of voting in 185.1.. The raainining officer concedes that the act
of voting in 1950 was not voluntary.
The Immigration Service contends that the burden of proof of
loss of citizenship has been satisfied by the present record and that
the special inquiry officer's conclusion to the contrary resulted from
misconstruction of the applicable law. On the other hand, counsel
has argued from known facts in this case and the applicable law as
it has been enunciated by the courts, in support of the cpecial inquiry officer's conclusion.
In Perez v. Brownel?, 359 U.S. 44 (1658), the Supreme Court discussed expatriation generally. However, this case stands primarily
for the principle that even though the right to United States citizenship may be relinquished or abandoned, either by expressed language or by conduct amounting to renunciation, loss of citizenship
may be accomplished only voluntarily. See also Mandoli v. AcAeson, 344 U.S. 133 (1952). The specific act of expatriation under
consideration in the Peri=, ease was that of voting in a foreign
political election (section 401(0; 8 U.S.C. 801(0, 1540 ed.). On
the other hand, in Niaikenca v. Dulles, 356 U.S. 129 (1958), the
Supreme Court stated:
* * the parties are agreed that when a citizenship claimant proves his
birth in this country or acquisition of American citizenship in some other
way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence. In Gonzales v, Landon,

319

350 U.S. 920, we held that the rule as to burden of proof in denaturalization
cases applied to expatriation cases under section 401 (1) of the Nationality
Act of 1940. We now conclude that the same rule should govern eases under
all the subsections of section 401.

Concerning the element of voluntariness, the following comments
were set out in the Nishikawa case:
* * * Petitioner contends that voluntariness is an element of the expatriating act, and as such must be proved by the Government. *
Because the consequences of denationalization are so drastic petitioner's
contention as to burden of proof of voluntariness should be sustained. *
'rho same principle applies to expatriation cases, and its calls for placing upon
the Government the burden of persuading the trier of fact by clear, convincing
and unequivocal evidence that the act showing renunciation of citizenship was
voluntarily performed. While one finds in the legislative history of section
601, and ,,,,ocularly section 401(c). recognition of the concept of voluntariness, there is no discussion of the problem of the burden of proof. * It is
altogether consonant with this history to place upon the Government the burden of proving voluntariness. The Court has said that "rights of citizenship
are not to be destroyed by an ambiguity." Perkins v. EIS, 307 U.S. 325, 337.
The reference was to an ambiguity in a treaty, but the principle there stated
demands also that evidentiary ambiguities are not to he resolved against the
citizen. [356 'U.S. 129, 133-1361
Although the Government set up a prima facie case in support of
its allegation of loss of citizenship (foreign army service and voting
in Greece), respondent has produced evidence that he had a bona
fide fear of reprisal or pominlIment if he failed to pro-form the expatriating acts. Voluntary action presupposes the conscious exercise of a free choice in the doing of an act which will cause loss of
United States citizenship, with proof of the voluntary character of
the act required to be clear, convincing and unequivocal?
If a penalty provision for failure to perform compulsory military
service is involved, grave doubts immediately arise concerning the
voluntary character of such service. Also, useless protests of United
States citizenship, etc., are not required to preserve the person's
right to claim United States nationality (Nishikawa T. Dulles,

supra).
Hence, the Government is required to prove by clear and convincing evidence that the conscript's military service was voluntary
and, at the same time, rebut respondent's prima facie showing of
involuntariness. See Perri v. Dulles, 206 F.2d 586 (C.A. 3, 1953);
Lehmann v. Acheson, 206 F.2d 592 (C.A. 3, 1953) ; Geosheimer T.
Dulles, 117 F. Supp. 836 (D.C.. B.J.; 1954) ; IVarnba T. D2411,38, 119 F.
°The situation here is quite different from Savorgnan v. Untied States, 338
U.S. 491 (1950), and Mackenzie v. Hare, 239 U.S. 299 (1915), for having no
distinct intent to give up United States citizenship, those women both velum.tarily engaged in conduct which Congress had prescribed as the basis for loss
of citizenship.

319

Supp. 633 (N.D. Calif., 1955) ; Correia v. Dulles, 133 F. Supp. 442
( D.C. 11.I., 1955).
In this case, respondent lived in an outlying area of Greece. If
he refused to serve in the navy as directed, he could be punished
and he had no means of escape, no one to turn to for help. His
decision to serve was not a free choice. The evidence clearly shows
that his foreign army service was involuntary and not an act of
expatriation (Nishikawa v. Dulles, supra; lifoldovearn v. Dulles,
108 F. Supp. 1 (F.D. Mich., 1958) ).'

The crux of the expatriation by voting problem now before the
Board is whether the citizen's genuine, but unfounded, fear of harm,
if he failed to vote in the 2 Greek election eonteRtg in 1951, constituted duress or reduced his acts of voting to being involuntary in
the legal sense. Of necessity, every allegation that a person committing an expatriating act out of fear does not per se constitute an
excuse for such an action, for each set of circumstances must be
examined individually and the validity of the averred factors
determined.
According to the Nishikawa case (at pp. 133, 131), the Government must prove voluntariness, which in this case means that the
Government must prove that respondent was completely a free agent
and that his 2 acts of voting in 1051 occurred spontanoowly, apart

from the force of outside pressures.° Also, this proof must affirmatively establish the voluntary character of the acts in issue by clear
and convincing evidence (Gonzales v. London, supra, at p. 920).
The Immigration Service is troubled by the fact that the sole
evidence of voluntariness is responsive testimony of the alleged
citizen on this point. The Service feels that the Nishikawa decision
never intended such evidence to be sufficient to support the alleged
citizen's claim of retention of United States nationality.
First of all, it must be emphasized that in Gonzales v. Landon,
supra, and Gonsales-Jasso v. Rogers, 264 F.2(1 584, the court definitely
stated that testimony of a native-born United States citizen, unsupported by other proof, about the facts surrounding the expatriating
act in issue may be considered sufficient as evidence worthy of belief
and that prima facie proof of involuntariness must of necessity be
overcome by clear, convincing and unequivocal evidence to the conThe draftsmen of the Nationality Act's expatriation provisions stated that
It was designed to take away United States citizenship from persons who had
shown that "their real attachment is to the foreign country and not to the
United States." (Codification of United States Nationality Laws, SIR. Comm.
Print, Pt. 1, 76th Gong., 'Ist Sass., V—VII)
It Is altogether consonant with this [the legislative] history [of section
401(c)] to place upon the Government the burden of proving voluntariness."
(856 U.S. 135, 136.)

320

trary (Nishikawa v. United States, supra, at pp. 133-136, quoted
above).
Significantly enough, the Government in both the Gonzales and
Go,,ale, - Jason cases argued unsuccessfully in a manner not unlike
tlui Immigration Service's contention here—respondent's statements
that his acts of voting were involuntary, were self-serving, unsupported, uncorroborated ones and consequently valueless. In each
instance, the court held that the alleged expatriate's statements that
he acted involuntarily under trying circumstances were indeed sufficient to enable him to maintain his United States nationality, after
specifically determining that the Government had failed to discharge
its burden of proving the converse by the very strong, affirmative
evidence required in so-called denationalization situations. 4
The Immigration Service contends that the ',Logue of voinntariness
was never properly raised, because the only evidence on this point
is the self-serving and uncorroborated statements of respondent,

which the Service feels the special inquiry officer rejected as incredible.
However, the special inquiry officer in his decision stated only
that he had some doubts concerning the substance of respondent's
testimony, which were insufficient in law 5 to overcome the evidentiary requirement that the Government prove expatriation (including the element of voluntariness) by clear, unequivocal and convincing evidence. "Ordinarily, the opportunity of the trial court
to observe the demeanor of the witness will be given great weight,
and the court's conclusions of fact will not lightly be overturned
(Fed. R. Civ. P. 52(a)). But in citizenship cases the appellate
courts will 'reexamine the facts to determine whether the United
States has carried its burden •* •' Knauer v. United States, 328
U.S. 654 at page 657 (1046)." (ionzatex-Jasso v. Rogers, 261 F.20
584 (C.A.D.C., 1950).
• In Gonzalez-Joss v. Rogers, supra, the Court said:
• • • there most be "solidity of proof which leaves no troubling doubt In
deciding a question of such gravity as is implied in an attempt to reduce a
person to the status of alien from that of citizen." Baumgartner v. United
States, 322 U.S. at p. 670. The burden is on the Government to prove an act
of expatriation, Nishikawa v. Dulles, 356 U.S. 129, 133 (1958), and it must do
so by evidence which is "clear, unequivocal, and convincing," and which does
not lane. the iSSIIP in donht. Schneiderman v. United States, 820 U.S. at p. 125.
Or as it was phrased in the Nishikawa case at pp. 137, 138:
• • • Nor can the district judge's disbelief of petitioner's story of his motives and fears fill the evidentiary gap [of affirmative evidence of voluntariness of the actl in the Government's case • • • [for] the Government most in
each ease prove voluntary conduct by clear, convincing and unequivocal evidence.

321

In Gonactlea-Masao, the Court also stated:
* not to establish a sound basis for expatriation, these statements must
be satisfactorily corroborated, and the totality of the evidence must rise to
the standard set by the Supreme Court. In criminal proceedings the rule is
that extra-judicial admissions are insufficient to establish the corpus dolled
or uphold the conviction without corroborative evidence. (citation) Though
the "corroborative evidence need not he sufficient, independent of the statements, to establish the corpus deticti. * * * (it should) tend to establish the
trustworthiness of the statement." (Citations) We need not go so far as to
any that these ruler., or nay others in tra Said of criminal law, are directly
applicable to cases like the present. But they provide a' helpful analogy. If
uncorroborated admissions are insufficient to convict a man of a crime, they
Should hardly suffice to deprive him of his citizenship. (p. 587)

The Immigration Service's contentions attempt to reverse this
reasoning, and necessarily reach tin inappropriate conclusion. In
the instant case, voluntariness being in issue, the question is whether
the Government failed to prove this fact by the required clear and
convincing evidence.
In 1951, respondent lived in a remote area of Greece where cornmturdeatiee with the taide world_ wag ,light, and rumors, once
started, were not easily stifled. Respondent, lacking educational
advantages, became convinced that failure to vote in the 2 elections
in question would result, in his being branded a communist, together
with being in danger of harm to his home and family. His fear
of harm and reprisal was a genuine, though mistaken, belief, engendered by the prevailing mob atmosphere. These factors transformed respondent's acts from spontaneous actions of a free agent
to that of involuntary conduct by one acting under extreme pressure or compulsion.
Respondent's 2 ad, of voting,- in 1051, performed under tho.

taken belief or inducement that he would be branded a communist
if he abstained, were ineffective as an act of expatriation, for the
essential element of voluntariness (the conscious exercise of a free
choice) is lacking in these acts of voting (Nis/alertwa v. Dulles,
supra; Peres v. Brownell, supra; Ka8,1171.1: Nakashigna v. Acheson,
98 F. Supp. 11 (S.D. Calif., 1931); Gon2alea-Jasso V. Rogers,
supra).

Consequently, respondent is presently a United States citizen and
a deportation proceeding is inappropriate. The decision of the
special inquiry officer should be approved.
Order: It is directed that the order of the special inquiry
officer be approved.

322.


Interim Decision #

MATTER OF GARNER

In Visa Petition Proceedings
A-20253948
Decided by Board March 20,1975
(l) The visa petition to classify the beneficiary as a preference immigrant under s
203(a)(5) of the Immigration and Nationality Act, as the sister of the petition;
denied by the district director because beneficiary did not meet thedefinition of'
set focth in section 101(b)(1)(C) of the Act. While beneficiary and petitioner we
children of a common parent (the father), beneficiary had not been legitimated p
her eighteenth birthday.
(2> While the term "aster" is not defined in the Act, to support a claimed brother
relationship necessary for qualification under section 203(aX5), petitioner ai
nefieiary must establish that they once qualified as children of a common par
provided in sec. 101(b)(1) and (2) of the Act.
(S)Matter o/C—, 6 L &N. Dec 617 (BIA1955) and MatterofD—M—,
71, &
N.I>
(BIA1957) are overruled insofar as they hold that the requirements of section10
of the Act are not applicable to "brothers" and "sisters" under section203(a)(5)
Act.
ON BEHALF OF PETITIONER:

Essel W. Baily, Jr., Esquire
Richard M. Wood & Associates
320 North Main Street
Ann Arbor, Michigan 48104

The United States citizen petitioner applied for preference elas.
tion for the beneficiary as her legitimated half sister under si
203(a)(5) of the Immigration and Nationality Act. The district dii
denied the petition. The petitioner has appealed from that denial
appeal will be dismissed.
The petitioner is a legitimate child of her parents. The beneficiar
bom out of wedlock to the petitioner's father and a different moth
appears from the record that the beneficiary was legitimated und(
laws of Great Britain, the place of her father's domicile, by the mai
of her parents. However, that marriage took place when the benef
was 23 years of age.
The district director concluded that the beneficiary could not q
as the petitioner's "sister" through their common father becauf
beneficiary was illegitimate at birth and had not been legitime
215

Interim Decision #2357
compliance with the 18-year age requirement of section 101(b)(1)(C) of
the Act. Counsel maintains that the requirements of section 101(b)(1)(C)
are inapplicable to an alien whose classification as a "sister" is sought
under section 203(a)(5) of the Act.
The term "sister" is not defined in the Act. However, the term "child"
is defined in section 101(b)(1) of the Act. Section 101(b)(1)(C) defines the
term "child" as including "a child legitimated under thelaw of thechild's
residence or domicile, or under the law of the father's residence or
domicile, whether in or outside the United States, if such legitimation
takes place before the child reaches the age of eighteen years and the
child is in the legal custody of the legitimating parent or parents at the
time of such legitimation."
The definition of "child" contained in section 101(b)(1) has been
applied in determining whether aliens are eligible for preference classification under section 203(a) as "sons or daughters," ' or "brothers or
sisters." z It is also applicable in determining whether an individual is a
"parent" under section 101(b)(2) of the Act.3 The application of the
section 101(b)(1) definition of "child" in determining whether an individual qualifies as a "son" or a "daughter" under section 203(a) has been
approved in Nasareno v. Attorney General of United States, 336 F.
Supp. 1219, affirmed 512 F.2d (D.C. cir. 1975), cert, den. sub norm
Nasareno et ai v. Levi, Attorney General, 423 U.S. 832(1975).
In Matter oftteung, 15 I. & N. Dee. 145 (BIA November
25,1974),
we held that in order to support a claimed "brother" or "sister" relationship under section 203(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 sections 101(b)(1) and (2) of the Act.
In Matter of Kim, U I. & N. Dec. 561 (BIA 1974), we specifically
dealt with the issue of whether a child born out of wedlock who was over
the age of 18 years when legitimated by his father could qualify for
1
Legitimated was or daughters: Matter of Coker, 24 I. & N. Dec. 621 (BIA 1974);
Matter o/JvHama* 14 I. & N. Dec. 435 (BIA1973); Matter of Amstasiadis, 12 I. &N.
Dec. 99 (BIA 19(>7); Matter of Mandemrth, 12 I. & N. Dec. 199 (BIA 1967); Matter of
Lauer, 121. &N. Dec. 210 (BIA 1967).Adopted sons or daughters: Matter ofNg, 14L&
N. Dec. 135 (BIA 1972); Matter ofCaramavzava,
121. & N.Dec.47 (BIA1967);Matter of
Yue, 12 I. & N. Cec. 747 (BIA 1968). Stepsons or stepdaughters: Matter of C - , S I. &N.
Dec. 692 (BIA I960); Matter ofPagnerre, 13 I. & N, Dec. 688 (BIA 1971).
3
Legitimated brothers or sisters: Matter of Kim, 14 I. & N. Dec. 561 (BIA 1974);
Matter ofVanPamelm, 12 I. & N. Dec. 11 (BIA1966);Matter ofK-~W~S—, 91. &N.
Dec. 396 (BIA 1958,1961; A.G. 1961). Adopted brothers andsisters:Matter of Butterly,
14 I. & N. Dec. 160 (BIA 1973); Matter ofBoghdadi, 12 I. & N. Dec, 666 (BIA 1968);
Matter ofFonQ, .10 I. & N. Dee. 497 (BIA 1964). Stepbrothers or stepsisters: Matter of
Heung, 151. & N. Dee, 145 (BIA November 25,1974), overruling Matter of Campbell, 13
I. & N. Dec. 652 (BIA 1970).
3
Matter of PoVdoro. 12 I. & N. Dee. 353 (BIA1967);Matter of Schaad,
101. &N. Dec.
555 (BIA 1964).

216

Interim Decision #2367
preference classification under section 203(a)(5) as a '"brother" through
the paternal relationship. We applied the section 101(b)(1)(C) definition
of a legitimated "child" and held that the b'eneficiary was not entitled to
preference classification.
We are aware of several cases which indicate that the section 101(b)(1) definition of "child" is not applicable in determining whether a
beneficiary qualifies as a "brother" or a "sister" under section 203(a)(5)
(formerly section 203(a)(4)). Matter of€~- t 6 I. & N. Dec. 617 (BIA
1955); Matter ofD—M—, 7 1 . & N. Dec. 441 (BIA1957).Over the years,
we have receded from the view expressed in these cases, and we now
specifically overrule them insofar as they hold that the requirements set
forth in section 101(b)(1) are not applicable to "brothers" or "sisters"
under section 203(a)(5).
Finally, counsel argues that the beneficiary can qualify as the petitioner's stepsister by virtue of the marriage between the petitioner's
father and the beneficiary's mother. It is clear, however, that for immigration purposes no steprelationship between the petitioner and the
beneficiary was created by the marriage, because the beneficiary was
beyond the 18-year age requirement of section 101(b)(1)(B) of the Act.
Matter of Heung, 15 I. & N. Dec. 145 (BIA November 25, 1974);
Matter of Kim, supra.
The district director's decision was correct. The appeal will be dismissed.
ORDER: The appeal is dismissed.

217


Interim Decision #1675

•

. MAITER

or Fr

In Deportation Proceedings
A-11013478
Decided by Board Deem-466 4 19, 1586
Since respondent, who entered the 17nitid States as an exchange visitor prior
to June 4, 1956 and who was never thereafter granted an extension of eta,'
as an exchange visitor, is not subject to the provisions of section 212(e),
Immigration and Nationality Act, as amended (22 OM. 42.91(c)), she is not
precluded -from establishing statutory eligibility for adjustment of status
under section 245 of the Act, no amended; therefore, motion is granted to

reopen deportation proceedings to permit

application

for such relief.

Oman:
Order: Act of 1952—Section 241(a) (2) [8 118.0. 1251(a) (2)]—Nonimmigrant—Remained longer.

The respondent, a native and citizen of China, appeals from an
order 'entered by the special inquiry officer on. September T, 1860,
denying a motion to reopen the proceeding to permit application for
relief under section 245 of the Immigration and Nationality Act
(8 U.S.C. 1255). The Immigration Service does not oppose the
motion.
The respondent is a female alien, 63 years of age, who last entered
the United States at the port of Rouses Point, New York on. July
28, 1953. She was then admitted as an exchange visitor until October 27, 1953 under a fellowship to the United Nations. Her application for further extension of stay was denied on May 24, 1954. A
warrant for her deportation was issued on April 13, 1959 and is
outstanding.
A petition for a preference classification under section 203(a) (2)
of the Immigration. and Nationality Act was approved by the Immigration Service on July 13, 1962. Counsel maintains that a change
of status under section 245 of the Immigration and Nationality Act
is not barred to the respondent by section 42.91(c) of Title 22 of the
Code of Federal Regulations since the respondent entered the United
919

Interim Deolsion: #1675 '
States as an exchange visitor prior to June 4, 1956 and was thereafter never granted an extension of stay as an exchange visitor.
Counsel maintains' that there is precedent for adjusting the status
of an alien in the same position as that of the respondent.
The special inquiry officer denied the motion on the ground that
the respondent is barred from relief by reason of section 212(e) of
the Immigration and Nationality Act since she is an exchange visitor
who has not been shown to have received a waiver of or to have
complied with the two-year foreign residence iequired by law.
We have carefully reviewed the provisions of 22 CFR 42.91(c).
It relates to "an alien who Wesndmitted into the United States as

an exchange visitor subsequent to June 4, 1956, or -who otherwise
acquired the status of aximtchange visitor subsequent to June 4, 1956,
including an alien granted an extension of the period of his tam-'
porary admission stibbectuent to September i0, 1956

." Sueh ian

alien "shall not be eligible to apply for and receive an immigrant
visa . ." tuilesd:he- meets the waiver requirements of section 212(e)
of the Immigration and Nationality Act. Since the respontlent•entered the.United StateS as an exchange visitor prior to June 4, 1956
and it• is alleged that she has never 'been granted an extension of her
temporary admission as an exchange visitor, we will order the hearing reopened to permit application for relief under section 245 of
the Immigration and Nationality Act, as amended. An appropriate
'order will be entered.
ORDER: It is directed that the. proceeding be reopened to permit application for an adjustment of -status under section 245 of the
Immigration and Nationality' Act. '
It is further ordered that if the special inquiry officer grants discretionary
' relief under. section 245 of the Immigration and Nationality Act, the outstanding order and warrant of deportation be
withdrawn.

920


Cite as 26 I&N Dec. 809 (BIA 2016)

Interim Decision #3872

Matter of Samuel Alberto IBARRA, Respondent
Decided September 15, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A “theft offense” under section 101(a)(43)(G) of the Immigration and Nationality
Act, 8 U.S.C. § 101(a)(43)(G) (2012), which requires the taking of property “without
consent,” includes extortionate takings, in which consent is coerced by the wrongful use
of force, fear, or threats.
(2) Robbery by force or fear in violation of section 211 of the California Penal Code is
categorically an aggravated felony theft offense under section 101(a)(43)(G) of the Act.
FOR RESPONDENT: Nina Bonyak, Esquire, Riverside, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: John D. Holliday, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY and MULLANE, Board Members; GELLER,
Temporary Board Member.
PAULEY, Board Member:

In a decision dated January 26, 2016, an Immigration Judge determined
that the respondent was not 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 theft offense under section
101(a)(43)(G) of the Act, 8 U.S.C. § 1101(a)(43)(G) (2012), and terminated
the removal proceedings. 1 The Department of Homeland Security (“DHS”)
has appealed from that decision. The DHS’s appeal will be sustained, the
proceedings will be reinstated, and the record will be remanded to the
Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Nicaragua who became a
lawful permanent resident on September 17, 2001. On January 23, 2004,
1

The Immigration Judge also found that the respondent was not convicted of a crime of
violence under section 101(a)(43)(F) of the Act. In this decision, we need not address
whether the respondent’s offense qualifies as an aggravated felony under this provision.

809

Cite as 26 I&N Dec. 809 (BIA 2016)

Interim Decision #3872

he was convicted of two counts of second degree robbery by force or fear in
violation of section 211 of the California Penal Code, with use of a deadly
or dangerous weapon as an aggravating factor under section 12022.53(b). 2
He was sentenced to 3 years of incarceration for these offenses, with an
additional consecutive 10 years for a firearm enhancement. He was also
ordered to pay fines and restitution.
The Immigration Judge determined that a violation of section 211 of the
California Penal Code is not an aggravated felony theft offense under the
categorical approach because the statute proscribes generic extortion in
addition to generic theft offenses. In reaching that conclusion, the
Immigration Judge relied on United States v. Becerril-Lopez, 541 F.3d 881,
891–92 (9th Cir. 2008), a decision of the United States Court of Appeals
for the Ninth Circuit, in whose jurisdiction this case arises. In that case, the
court stated that section 211 encompasses generic extortion, which is
defined as obtaining property “from another with his consent induced by
the wrongful use of force, fear, or threats.” Id. (quoting Scheidler v. Nat’l
Org. for Women, Inc., 537 U.S. 393, 409 (2003)).
Based on this precedent, the Immigration Judge concluded that section
211 of the California Penal Code punishes offenses that are not included in
the generic definition of theft because a violation of the statute must be
accomplished with the “consent” of the victim, but generic theft, as defined
in section 101(a)(43)(G) of the Act, requires, as an element, that a taking
must be accomplished without the victim’s consent. Accordingly, the
Immigration Judge determined that the DHS had not met its burden of
establishing the respondent’s removability by clear and convincing
evidence and terminated the proceedings.

II. ANALYSIS
To determine whether a crime is an aggravated felony for immigration
purposes, we must apply the categorical approach outlined by the Supreme
Court in Taylor v. United States, 495 U.S. 575 (1990). Under the
categorical approach, only the “fact of conviction and the statutory
definition of the prior offense” can be examined. Id. at 602; see also
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (holding that the
focus of the categorical approach is on “whether the elements of the crime
2

Section 211 of the California Penal Code provides as follows:
Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means
of force or fear.

810

Cite as 26 I&N Dec. 809 (BIA 2016)

Interim Decision #3872

of conviction sufficiently match the elements of generic burglary, while
ignoring the particular facts of the case”). Whether the elements of section
211 of the California Penal Code match the elements of generic theft under
section 101(a)(43)(G) of the Act is a question of law that we review de
novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016).
Section 101(a)(43)(G) of the Act defines an aggravated felony in
relevant part as “a theft offense (including receipt of stolen property) . . . for
which the term of imprisonment [is] at least one year.” To resolve whether
the Immigration Judge properly terminated proceedings in this matter, we
must decide whether the respondent’s offense falls within the generic
definition of a theft offense. Theft under section 101(a)(43)(G) is defined
as the “taking of property or an exercise of control over property without
consent with the criminal intent to deprive the owner of rights and benefits
of ownership, even if such deprivation is less than total or permanent.”
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007) (quoting Penuliar
v. Gonzales, 435 F.3d 961, 969 (9th Cir. 2006)); see also Matter of
Garcia-Madruga, 24 I&N Dec. 436, 438, 440 (BIA 2008).
The Immigration Judge’s analysis does not recognize that in extortion
offenses, “consent” is coerced—that is, it is “induced” and does not
constitute the kind of “consent” that exempts an offense from aggravated
felony treatment under section 101(a)(43)(G) of the Act. Scheidler,
537 U.S. at 410. The phrase “without consent” need not appear in the text
of a statute for the prohibited crime to be a theft offense. Rather, we
conclude that theft refers more broadly to offenses that involve a taking
against the voluntary assent of the victim—meaning offenses with elements
that necessarily involve conduct that coerces compliance. See Matter of
Cardiel, 25 I&N Dec. 12, 20 (BIA 2009) (stating that “the concept of
‘consent’ used in the law of extortion is highly unconventional and does not
connote a voluntary or elective conferral of property”).
The California courts have long recognized that extortion requires an
offender to induce the victim’s “coerced and unwilling consent” and that
“the wrongful use of force or fear must be the operating or controlling
cause compelling the victim’s consent.” People v. Goodman, 323 P.2d 536,
541 (1958). There is no meaningful difference between a taking of
property accomplished against the victim’s will and one where his
“consent” to parting with his property is coerced through force, fear, or
threats. See Matter of Cardiel, 25 I&N Dec. at 20–21 (stating that
“‘consent’ obtained under extreme duress through the wrongful use of force
or fear does not constitute consent” for purposes of determining if the
elements of an offense match those of generic theft). As the Ninth Circuit
has explained, the “‘with consent’ element of generic extortion is not
inconsistent with the ‘against the will’ element of a Cal. Penal Code § 211
811

Cite as 26 I&N Dec. 809 (BIA 2016)

Interim Decision #3872

conviction for a taking involving threats to property” because “in spite of
the different expressions, there is no difference . . . , for both crimes equally
require that the defendant’s threats induce the victim to give up his
property, something which he would not otherwise have done.” See
Becerril-Lopez, 541 F.3d at 892 n.9 (quoting 3 Wayne R. LaFave,
Substantive Criminal Law § 20.4(b) (2d ed. Westlaw 2003)).
We additionally note that the jury instructions for section 211 of the
California Penal Code require as an element that the defendant take
property from another “against that person’s will.” Judicial Council of
California Criminal Jury Instructions (2016 edition), CALCRIM No. 1600.
According to these instructions, “An act is done against a person’s will if
that person does not consent to the act. In order to consent, a person must
act freely and voluntarily and know the nature of the act.” Id.; see also Cal.
Jury Instr.—Crim. 9.40 (Fall 2016 Revision) (“‘Against the will’ means
without consent.”).
Thus, a victim’s consent to an extortionate taking does not connote a
voluntary conferral of property and is distinguishable from consent
obtained through fraud or deceit. See Matter of Cardiel, 25 I&N Dec. at
20; see also Mena v. Lynch, 820 F.3d 114, 119−20 (4th Cir. 2016) (stating
that the “consent” essential to extortion stands in marked contrast to the
type of “consent” underlying an embezzlement offense, which is “closely
related” to the crime of fraud); cf. Matter of Garcia-Madruga, 24 I&N Dec.
at 440 n.5 (concluding that a conviction for welfare fraud, which involves
the taking or acquisition of property with consent that has been fraudulently
obtained, did not qualify as a theft offense under section 101(a)(43)(G)). In
Matter of Garcia-Madruga, we explicitly declined to provide a precise
meaning for the term “consent” in deciding whether crimes involving fraud
or deceit fell within the generic definition of aggravated felony theft, and
we did not discount the possibility that such a term could encompass
“consent induced by coercion.” Id.
The respondent cites Lopez-Valencia v. Lynch, 798 F.3d 863, 866
(9th Cir. 2015), and United States v. Corona-Sanchez, 291 F.3d 1201,
1207–08 (9th Cir. 2002) (en banc), in support of his argument that the
Ninth Circuit has concluded that a conviction under California’s theft
statute is categorically not a conviction for an aggravated felony theft
offense under section 101(a)(43)(G) of the Act. However, in both decisions
the court limited its holding to offenses in which the underlying crime
charged is a violation of section 484 of the California Penal Code, which is
not at issue here. Moreover, in neither case did the court consider the
central issue before us—whether a taking of property falls within the
generic definition of theft in section 101(a)(43)(G) when the victim’s
“consent” has been elicited by force, fear, or threats. As we previously
812

Cite as 26 I&N Dec. 809 (BIA 2016)

Interim Decision #3872

stated in Matter of Cardiel, 24 I&N Dec. at 20, “[I]t is not at all clear to us
that extortion would fall outside the scope of the term ‘theft offense,’ . . .
simply by virtue of the fact that an extortionate taking is, in some peculiar
sense, not effected ‘without consent.’” Cf. Chapling v. Mukasey, 267
F. App’x 516, 517 (9th Cir. 2008) (“[T]he requirement that the property
have been obtained by extortion does not cause the full range of conduct
criminalized by [section 496(a) of the California Penal Code] to exceed the
scope of a generic theft offense.”).
We now hold that the generic definition of aggravated felony theft under
section 101(a)(43)(G) of the Act encompasses extortionate takings, in
which consent is coerced by the wrongful use of force, fear, or threats. We
therefore conclude that the respondent’s crime is categorically an
aggravated felony theft offense and that he is removable as charged.
Accordingly, the DHS’s appeal will be sustained and the record will be
remanded to the Immigration Judge for consideration of the respondent’s
eligibility for relief from removal.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the
removal proceedings are reinstated.
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.

813


MATTER OF B—
In DEPORTATION Proceedings
A-8258569
Decided by Board June 21, 1960
Recommendation against deportation—Ineffective when made at time of
resentencing.
Judicial recommendation against deportation made at time of resentencing Is
held ineffective to avert deportation where sole purpose of court in vacating
original judgment of conviction and sentence was to repair the omission to
have made such recommendation initially within the time limitation set by
section 241(b).

CHARGES :
Order: Act of 1952—Section 241(a) (4) (8 U.S.C. 1251(a) (4)1—Convicted
of two crimes—Receiving stolen property; burglar:.
Lodged: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—Crime
within five years—Receiving stolen property.
BEFORE THE BOARD

Discussion: This case is before us on appeal from a decision of
a special inquiry officer directing the respondent's deportation.
The respondent is a 21-year-old unmarried male, native and citizen of Guatemala, who last entered the United States on August 26,
1955, as a returning resident. He came to this country with his
parents in 1946 at the age of 7 and has resided in the United
States since that time. The special inquiry officer held that the
respondent was deportable on the lodged charge but not on the
charge stated in the order to show cause. The latter had been
based on convictions for 2 offenses, but the respondent received an
absolute pardon for one of the crimes from the Governor of Virginia on October 16, 1959. The lodged charge was predicated solely
on a conviction in the United States District Court for the District
of Columbia for receiving stolen property, the offense having been
committed about January 3, 1958. The only issue to be determined
is whether that charge is sustained.
We have carefully reviewed the entire record and have considered
the contentions of counsel. In connection with the conviction for
receiving stolen property, the respondent on June 30, 1958, was
686

sentenced to imprisonment for a term of 1 to 3 years. Execution
of the sentence was suspended and he was placed on probation for
3 years. On October 17, 1958, probation was revoked and the
sentence previously imposed was ordered into effect. In May 1959
the respondent through counsel filed a motion to vacate the judgment of conviction and the sentence imposed. Thereafter, he moved
the court to recommend to the Attorney General that he be not
deported, and notice of the motion was forwarded to the United
States Attorney and to the Service on July 2, 1959. On July 17,
1959, while the respondent was still serving the sentence imposed
on June 30, 1958, the judgment of conviction and the sentence
were vacated; he was convicted and sentenced to a term of imprisonment of 3 months to 1 year and 11 months; and the court recommended against his deportation.
Under 8 U.S.C. 1251(b) (2), a conviction is eliminated as a basis
for deportation "* * * if the court sentencing such alien for such
crime shall make, at the time of first imposing judgment or passing
sentence, or within thirty days thereafter, a recommendation to the
Attorney General that such alien not be deported * * *." Prior
notice must also be given, but the Service does not question the
sufficiency of the notice in this respondent's case.
Counsel is correct in his assertion that under Pino v. Landon,
349 U.S. 901 (1955), a conviction must have attained finality in
order to support an order of deportation. Matter of D—, 7 I. &
N. Dec. 670, which counsel cited in this connection, was overruled
, A-2904545, Int. Dec. No. 1024 (Atty.
in Matter of A
Gen., 1959). However, counsel apparently concedes that the judgment of conviction on July 17, 1959, attained finality and we do
not consider that the respondent's case involves the question of
finality of conviction but rather the question of when there first
occurred the imposition of judgment or passing of sentence.
It is true that on July 17, 1959, the court vacated the judgment of
conviction entered on June 30, 1958, as being null and void and,
insofar as the criminal proceeding is concerned, that judgment was
superseded by the judgment of July 17, 1959. In the deportation
proceeding against the respondent, on the other hand, the question
is not whether one judgment of conviction is valid and another
judgment of conviction is invalid, but instead we have only the
question as to whether, for deportation purposes, sentence was first
imposed on June 30, 1958, or on July 17, 1959. It is our opinion
that, in truth and in fact, judgment was first imposed and sentence
was first passed on June 30, 1958, and the question resolves itself
into whether this action of the court can be disregarded in order to
make the subsequent action on July 17, 1959, the first imposing of
judgment and passing of sentence.
687

In United States ex rel. Piperkoff v. Esperdy, 267 F.2d. 72 (C.A.

2, 1959), the court said (p. 75) :
We hold that § 1251(b) [of Title 8, United States Code] announces a federal standard for the determination of what constitutes the first entry of
judgment or the passing of sentence. While we may assume that in many or
even most cases that standard incorporates and adopts the relevant state law,
we hold that it does not do so where the sole basis for the vacation and reentry of judgment is to repair the omission to make the statutory recommendation against deportation permitted by §1251(b). To hold otherwise would
be to defeat the plain command of the statute, which strictly, and for good
purpose, limits the time within which We extraordinary power Tested in the
trial court must be exercised. * * *

In the motion to vacate the judgment of conviction and the
sentence imposed, it was asserted that the failure of trial counsel to
advise the court that the defendant (this respondent) was an alien
and to request from the court a recommendation that he not be
deported deprived this respondent of such a substantial right as to
render the assistance of trial counsel ineffective. It is our considered opinion that the motion itself shows clearly that the sole
purpose for vacating and reentering the judgment of conviction in
the respondent's case on July 17, 1959, was to repair the omission
to make the statutory recommendation against deportation when
sentence was first imposed on June 30, 1958. Since the facts in the
respondent's case bring it within the quoted language of the Piperkoff decision, we consider that case to be controlling. In view
of the foregoing, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby
dismissed.

688


Interim Decision #1661

-

3fArrza or Sulu

In Deportation Proceedings
• A-10767108
Decided by Board October 26 3 .1066

Reopening of proceedings to permit application for withholding of deportation
under section 213(h) of the Immigration and Nationality Act, as amended
by the ..iket of October 3, 1965, ie not warranted in the case of respondent

who fears criminal prosecution for misappropriation of state funds, if
deported to Formosa, and who, on substantially the same facts, applied for
and was denied such relief under the statute prior to amendment.
DEVOISTAISIM ;

.Act of 1962 —Section 241(a) (2) (8 U.S.C. 325/3 —Nonimmigrant

' (government employee)—remained longer.

The 'record relates to a 37-year-old male alien, a native and citizen
of China, whose wife and two Children are also natives and citizens
of: that country and reside on Formosa. The respondent was admitted to the United States as a nonimmigrant government employee
of China on August 18, 1356. Approximately one year after such

admission he abandoned his lawful status. His deportability is established and uncontested.. He has been granted the privilege of
voluntary departure.

These deportation proceedings were instituted on or about April
16, 1963. In the course thereof, the respondent applied for adjustment of his. status to that.of a permanent resident under section 245
of the Immigration and Nationality Act (8 U.S.C. 1255). An application for temporary withholding of his deportation under section
243(h) of the Immigration and Nationality Act (8 ;U.S.°. 1258)
was specifically waived by respondent who was then represented by
counsel. The relief of suspension of deportation under 'section

244(a) of the Immigration and Nationality Act (8 U.S.C. 1254)
was not applied for at that time, apparently because respondent had
not completed seven years' physical presence within the United

States .as required by the statute.
On September 26, 1963, the special inquiry officer denied the respondent's application for adjustment of his status to that of a
872

Interim Decision #1661
permanent resident. On April 24, 1961, this Board affirmed that
decision of the special inquiry officer:. On June 1964, we denied
the respondent's motion for reopening of the proceedings to permit
him to Ale and prosecute an application for temporary withholding

of -his deportation to Formosa. The case is now again before us for
consideration by way of a motion to reopen the proceedings to permit the respondent to file and prbsecute applications for temporary
withholding of his deportation under section 243(h) of the Immigration and Nationality Act, and/or suspension of his deportation
under section 244(a) (1) of that Act.
The Service oppose., the granting of this motion insofak as it is

directed to permitting the respondent- to file and prosecute an application for suspension of deportation. It does so on the ground that
favorable exercise of discretion. to grant suspension of deportation
is not merited by the respondent who, following admission as a nonimmigrant, has acquired minimum eligibility for such relief by
taking advantage of every administrative and other remedy avail'able to him. The record before us supports the Service position in

this respect. Accordingly, and on the basis of s prior precedent decision of this Board (Matter of L—, A-11196360, 5/27/66; Int. Dec.
*1596), the respondent's motion is denied insofar as it is concerned
with reopening the proceedings to permit him to file and prosecute
an application for suspension of deportation.
The Service is also _opposed to favorable action on the respondent's
motion insofar as it relates to the question of temporary withholding

of his deportation to Formosa. Basically, its position in this respect
is predicated on the fact,that we denied. a similar motion on July
13, 1964, after carefully considering substantially the same facts on

which the present motion is predicated. It indicates awareness of
the fact that section 243(h) of the Immigration -and Nationality Act
has been amended since the entry of our last order, but claims that
the test for, this relief provided for under the new law is not so
different from that spelled out in the old law as to require reopening the proceedings now. It asserts that the evidence on this point
which lire previously considered and is still relied on by respondent
clearly does not meet the new statutory test and, therefore, does not
require reexamination. Again, we agree with the Service and are
of the opinion that favorable action on this portion of the respondent's motion is not warranted:
8 CFlt 242.17(d) requires an application for relief under section.'
243(h) of the Immigration and Nationality Act to be made in the
course of the hearing before the special inquiry officer; and 8 CFR.
873

Interim Decision #1661
242.22 provides that a motion to reopen to consider an application
for such relief will not be granted if the alien's right to apply was
fully explained to him by the special inquiry officer, and he was
afforded an opportunity to apply at the hearing. As indicated
above, this record shows that the special inquiry officer complied
strictly with the requirements of 8 CFR 242.22, and the respondent
specifically waited his right to apply. The record. also reflects that
the respondent was represented by competent and experienced counsel at the time he did so.
We are aware that 8 CFR 242.22 does authorize reopening where
the request therefor is based on circumstances arising after the hearing; that section 243(h) as originally enacted made the test for re-

lief thereunder "physical persecution"; and that the October 3, 1965
amendment to the statute (P.L. 89-236, 89th Cong., H.R. 2580) altered the test to "persecution on account of race, religion or political opinion." We, however, do not think these factors call for
favorable action on the motion.
On June 9, 1961, when this Board denied a similar motion in this
case, our decision was based on a thorough review of evidence designed to establish that respondent's deportation-to Formosa would
subject him to "physical persecution." Specifically, the evidence
then considered was intended to show that respondent might be put
to death by Formosan authorities. It revealed that his fear of such
a fate was predicated on the fact that -he had received and/or requested from them funds. to further the purpose for which they had
permitted him to come to the United. States, for their ultimate benefit as well as his, whereas he had, in fact, long since abandoned pursuit of that goal and was advancing his own interests which were
inconsistent therewith.
The present motion is based on the same evidence we previously
found wanting as proof of possible "physical" persecution. Andcounsel's arguments in support of this motion are still directed to
the respondent's fear of "physical" puitishment for conduct clearly
criminal in nature rather than political. The contentions now voiced
do not tend to show that respondent's case falls withiii the amended
statute, to wit: that he fears "persecution on account of race, religion or political opinion." Therefore, we find that this motion
does not satisfy the requirements of 8 OFR 3.8 that it be based on
new facts to be proved at the reopened hearing. •

In other words, counsel seeks to avail himself of the statute as
amended to delete the word "physical" from its provisions. However, he argues solely that the respondent will be subject to "physi874

Interim Decision 411381
cal" persecution, an argument which has previously been considered

and rejected by this Board. Accordingly, no useful purpose would
be served to now reopen proceedings for consideration under the
amended statute. The motion, therefore, will not be granted.
ORDER: It is ordered that the motion be and the same is hereby
denied.

875


MATTER OF G—
In EXCLUSION Proceedings
A-11262507

Decided by Board August 30, 1960
Constructive presence in United States satisfies residence requirement in section 340(f) protecting against loss of citizenship upon cancellation of parent's
naturalization.
Miele wislorormaituu as to retention or United States ettizenstitp delayed
passport applicant, who had acted diligently, from coming to the United
States before attaining his 23d birthday on September 18, 1957, he is regarded as having been constructively present in the United States as of a
date prior to his 23d birthday not only for purposes of retaining citizenship
under section 301(b) and (c) of the Immigration and Nationality Act but
also to satisfy residence requirement in section 340(f) preventing loss of
citizenship upon cancellation of father's naturalization on June 5, 1958.
EXCLUDABLE • Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]—No
passport; no immigrant visa.

BEFORE THE BOARD

DISCUSSION: By order dated December 2, 1959, this Board dismissed the appellant's appeal from the order of the special inquiry
officer finding that he 1-1 -ad lost. United States citizenship and that he

was excludable as an immigrant without the proper documents. The
District Director, Miami, has filed this motion asking that the appellant be found to be a citizen of the United States. The motion
will be granted.
The appellant was born in Lebanon on September 18, 1934. He
became a citizen of the United States at birth through his father
who had been naturalized in 1924 (section 1993, Revised Statutes, as

amended). However, the law provided that a person such as appellant would lose United States citizenship on his 16th birthday if
he failed to take up residence in the United States prior to that date
(section 201(g) and (h) of the Nationality Act of 1940). The appellant's 16th birthday occurred in 1950; he had failed to take up
his residence in he United States prior to that date. As of his
16th birthday, therefore, he was no longer a United States citizen.
In 1952, section 301(b) and (c) of the Immigration and Nationality Act changed the retention requirements so that a person born
64

abroad after May 24, 1034, of parents one of whom was a citizen

would not lose United States citizenship unless he failed to come to
the United States before attaining the age of 23. However, it was
initially held that the benefits of these sections did not apply to
one who had failed to retain his United States citizenship under
the 1940 Act (Matter of B , 5-291). While this interpretation was
—

subsequently abandoned, it prevailed in February 1950 when appellant's father applied to the State Department for registration for

himself and his son as United States citizens. The State Department, following the interpretation, advised him that his son had lost
United States citizenship by failure to take up residence in the United
States prior to his 16th birthday.
On November 18, 1957, action by the Supreme Court established
the rule that a person who had failed to comply with the retention
provisions of the 1940 Act requiring him to be a resident of the
United States before his 16th birthday, could nevertheless retain
citizenship by complying with the provisions of section 301 (b) and
(c) of the Immigration and Nationality Act which permit the retention of nationality if the national comes to the United States
before reaching the age of 23 and was thereafter continuously
physically present for at least 5 years between his 14th and 28th
birthdays (Matter of M—, 7-646).
Thus, the information which had been given to appellant's father
by the State Department in 1956 while appellant was still under 23
was incorrect; the provisions of section 301(b) and (c) of the Act
applied to the appellant. The equities of such a situation gave
birth to the rule that the person misinformed retained United States
citizenship if, with due diligence, he applied for documentation
before his 23d birthday and came to the United States expeditiously,
for he is regarded as having constructively made a timely arrival
in the United States, i.e., as having come before his 23d birthday
(Matter of S—, 8 221; Matter of S—, 8-226).
The appellant sought a United States passport on March 26, 1958,
when he was over 23 years old. However, because misinformation as
to his citizenship had been furnished by an official of the United
States Government, his passport application was considered as having been filed in February 1956, the date of his fathsr'R registration
as a United States citizen. The passport was issued on July 16,
1958, and the appellant arrived in the United States on August 15,
-

1958.

Were it not for ti complicating factor which we shall now discuss,
there would have been no bar to the appellant's admission as it citizen.
He would have been considered as if he had been a resident of the
United States from sometime before his 23d birthday. The corn65
651377 63

plication arises from the fact that the naturalization of appellant's
father was cancelled on June 5, 1958, under the provisions of section 340(d) of the 1952 Act. Section 340(f) of the Act provides
that where cancellation of a parent's naturalization occurred under
section 340(d), a person claiming United States citizenship through
the parent shall lose his citizenship unless the person Was residing

in the United States at the time of the cancellation.
When these facts were brought to the attention of the special
inquiry officer and the State Department, they both held that the
appellant had lost United States citizenship upon the cancellation
of the naturalization of his father because the appellant had not
been living in the United States at the time of the cancellation. The
Board affirmed this view. The District Director, Miami, points out
in his motion that the appellant is deemed to be constructively in
the United States as of a date prior to his 23d birthday (September
18, 1957), to enable him to enjoy the retention prnvisinns of section 301(e) of the Act. It would be logical, the District Director
believes, to hold that the constructive presence in the United States
should also satisfy the requirements of section 340(f) so that it
may be said that the appellant was in the United States on June 5,
1958, when his father's naturalization was cancelled. The views of
the district director were presented to the Department of State
which has announced its concurrence in them. The Service representative does not oppose the motion. The logic of the motion is
compelling. It will be granted.
ORDER: It is ordered that the Board's order of December 2, 1959,
be and the same is hereby withdrawn.
It is further ordered that the appeal from the decision of August
27, 1959, by the special inquiry officer be and the same is hereby
sustained.
It is furthered ordered that the appellant be admitted as a citizen
of the United States.

06


Interim DeCiiion #1457

MATIME OF MOH
In. Section 212(e) Proceedings
A-13246787
Decided by District Director March, 30, 1986
-An • exchange visitor is granted a waiver of the two-year-foreign-residence
requirement of section 212(e), Immigration and Nationality Act, as amended,
since compliance therewith would result in exceptional hardship . to her
Vatted States citizen husband, a second-year medical student', who is dependent upon her income for living expenses; who faculty members of 2" different
colleges agree Is a brilliant student with great promise in We chosen iteld
and a separation from his wife at this time would adversely affect the course
of his studies; whose career would be set back if he were to either interrupt
his education here or attempt to continue his studies in France in order to
accompany his wife ; and whose departure for two years would only serve to
aggravate Ills estrangement from his parents.
The applicant is a. 25-year-old native and citizen of France. She
resided in that country prior to her admission to the United Stites,
on August 5, 1960, as an exchange visitor. The applicant participated in Exchange Visitor Programs G—I-1, under the sponsorship
of the International Educational Dicliange Service of the Department of State, Washington, D.C., from September 1960 to August
1961, and P—I-157, under the sponsorship of the University of
Massachusetts, Amherst, Massachusetts, for the academic years 1961-.
1962, and 1962-1963, at the University's Department of Romance
Languages as a graduate student and-instructor of French. During
this time the applicant left the United. States for a number of brief
vacations abroad. Since September 1963, she has been employed as
an instructor of French at the Dalton School, New York, New York.
Evidence has been presented establishing the applicant's marriage
to Mr. Stephen P. Hersh, a citizen of the United States, on August
2, 1962, in Paris, France. .
Mr. Hersh is a second year medical student at the New York University School of Medicine, New York, New York. Faculty members
of New York University, Harvard Medical School, and Amherit

142

Interim. Decision #1457
College agree that Mr. Hersh is a brilliant student with great promise in his chosen field. They also state that a separation from his
wife at this time would adversely affect the course of his studies.
Mr. Hersh's career would be set back if he were to either interrupt
his education or attempt to continue his studies in France, so that he •
might accompany his wife to that country.
Mrs Hersh, moreover, states that her .husband is not employed
and is dependent upon. her income for living expenses. Mr. Hersh
also revealed and he is estranged from his parents. His departure for
two years would only serve to aggravate this situation.
In view of the foregoing, it has been determined that the applicant's compliance with the foreign 'residence' requirement would impose exceptional hardship upon her United States citizen spouse. The
Department of State has reviewed this matter and recommends that
the waiver be granted.

ORDER: It is ordered that the application of Mrs. Claudine A.
Hersh for a waiver of the two-year foreign residence requirement of
section 212(e) of the Immigration and Nationality Act, AS amended,
be and the same is hereby granted.

148 .


Interim Decision #2420

MATTER OF JAmomr
Application for Permission to Accept Employment
A-20893960
Decided by Regional Commissioner August 18, 1975
Where such employment will not interfere with the student's ability to carry successfully a
full course of study, permission to accept part-time off-campus employment because of
economic necessity resulting from unforeseen circumstances arising after entry is
granted under the provisions of 8 CFR 214.2(f)(6) to a bona fide nonimmigrant student
who is urable to meet his expenses because of unanticipated medical bills incurred
subsequent to entry.

Discussion: The application for extension of stay and for permission
to accept part-time employment was granted by the district director
and certified to me. The applicant is a 20-year-old single native and
citizen of Iran who was last admitted to the United States as a nonimmigrant student on December 30, 1973, at New York City to attend
Louisiana State University at Baton Rouge, Louisiana. He was subsequently granted an extension of his stay in the United States to June
2, 1975, to continue his studies at Louisiana State University.
At the time of his admission to the United States, he presented a
properly executed Form 1-20, Certificate of Eligibility for Nonimmigrant Alien Students, issued by the Director, English Language and
Orientation Program, Louisiana State University, Baton Rouge,
Louisiana, confirming his acceptance atiduisiana State University for a

full course of study in the English language.
His Form 1-20 indicated the academic year cost for tuition and fees to
be $786 and the yearly cost for living expenses to be $1,564 for a total of
$2,350 a year.
The reverse of his Form 1-20 stipulated he would receive $300
monthly from his brother who lives in Iran. His Form 1-20 mentioned no
other source of support.
His current application for part-time employment reflects his yearly
expenses are $4,500 and his yearly income is $3,200 of which $3,000
comes from his brother and $200 from his earnings from on-campus

employment.
The basis of his request for part-time employment is a $262 medical
424

Interim , Decision #2420
bill which he has incurred since entry. In support of his application is a
letter stating that his medical insurance has expired due to an oversight
on his part, and that his hospitalization expenses must be borne by him.
He further states he is unable to meet this financial obligation without
accepting off-campus employment. His request for part-time employment is solely for the purpose of paying off his medical expense which
resulted from unpredicted surgery.
Part 214.2(f)(6), Title 8 Code of Federal Regulations, provides that
permission to accept part-time employment may be authorized to
nonimmigrant students who establish an economic necessity which
arose as a result of unforeseen changes in their financial condition since

entry. Such permission may be granted not to exceed 20 hours per week
so as not to interfere with the student's ability to carry on -a full course
of study. The regulations fail to set forth any criteria by which employment may be authorized except that it must be for economic necessity
and that such necessity must be the result of an unforeseen circumstance subsequent to , entry or subsequent to change to student
classification.
In the Matter of A—, 7 I. & N. Dee. 661, the Regional Commissioner
has held that the controlling factor in applications by nonimmigrant
students to accept employment is the question of whether there has
been any change in the student's economic situation since his entry into
the United States which would make it necessary for him to accept
employment.
In the instant case, subject's financial condition has been affected
because of a medical expense that occurred since his entry. Such expense was not anticipated. It appears from the student's financial
statement as outlined in his application, that he is unable to meet this
financial obligation without resorting to part-time employment.
After careful consideration of the evidence of record, it is concluded
that the student's case falls within the purview of Title 8 Code of
Federal Regulations, Part 214.2(0(6) and that his application for extension of stay and permission to accept part-time employment should be
granted.
ORDER: It is ordered that the application be approved.

425


Interim Decision #1601

Male Or

WATSON

In Section 248 Proceedings
.

A-14789392

. Decided by .Regional Coanntissioner June 14, 1966
A temporary visitor's application -for change of nonimmigrant classification to

student pursuant to section 248 of the Immigration and Nationality Act is
denied for failure to establish he would be able to support himself during
the period of his stay in the 'United States while pursuing's. full course of
study, and his appeal from such denial decision is dismissed and request
for oral argument thereon denied In the absence of any specified reasons for
the appeal (8 CPR 103.8(b)).

This case has 'come before us on appeal from the decision of the

District Director who denied an application for change of nonimmigrant status from visitor to student under section 248 of the Immigration. and Nationality Act.
The District Director denied this application on May 16, 1066
finding that the applicant would not be able to support himself during the period of stay in the United States while pimrsuing a full
course of studs. A review of the record reveals that. the District
Director's reasons for denying this application werelvalid and his
decision was proper.
Counsel for the applicant has submitted a timely appeal from the
District Director's decision and has requested oral argument. A
brief was not filed. with the appeal and no reasons for the appeal
were given in the Notice of Appeal to the Regional Commissioner.
CFR 103.3(h) provides that' the officer to whom an appeal is
taken may deny oral. argument and dismiss any appeal when time
party concerned fails to specify the reasons for his appeaL It
should be noted that this statement *contained in the instructions
which appear on Forni I-290B, Notice of Appeal to the Regional
Commissioner which was submitted by the attorney. '
Under the provisions of 8 OFR 103.3(h) the request for oral argument will be denied and the appeal dismissed in the absence , of
any stated reasons for 'the appeal.

It is ordered that the request for oral argument 'be denied and the
appeal be and hereby is dismisied.

.618


Interim Decision #1957

MATTER OF YAAICOV

In Visa Petition Proceedings
A-13205451
Decided by Regional Commissioner January

3, 1969

Notwithstanding beneficiary has never received a degree in library science
from an institution of higher learning, on the basis of her combined education (8% years college level) and experience (over 12 years as a librarian) she qualifies as a professional librarian within the meaning of
sections 101(a) (32) and 203(a) (3), Immigration and Nationality Act, as
amended.

This matter is before the Regional Commissioner on appeal
from the denial of the petition by the District Director.
The petitioner is a 40-year-old native of China, citizen of Israel, who arrived in the United States December 6, 1962 as a visitor. On March 21, 1963 her nonimmigrant status was changed to
A-1, government official, at the request of the Ambassador of Israel. She is still in this status as the wife and employee of the Vice
Consul of Israel in New York City. She has also been employed as
a professional librarian.by H. W. Wilson Company, 950 University Avenue, New York. This company publishes index and reference works for libraries.
This petition was submitted on June 29, 1967 and Form
ES-575 was forwarded to the Department of Labor for opinion
as to the professional qualifications of the petitioner. In December of 1967 the Department of Labor advised that the subject
lacked academic preparation for employment as a professional librarian. On January 11, 1968 the District Director denied the petition finding that the subject did not have the necessary education to qualify as a librarian.
Processing of the appeal was delayed to afford *the petitioner
an opportunity to obtain additional evidence. During this period
the Department of Labor reexamined the request for a certification and on May 21, 1968 issued the appropriate certification for
a librarian.

203

Interim Decision 4t1957
This petitioner claims a total of three-and-one-half years of college level education, two-and-one-half years obtained in China
and one year at Hebrew University in Jerusalem. She has also
submitted acceptable evidence of employment as a professional li- .
brarian (senior cataloger) by the Jewish National and University
Library, Jerusalem from August 26, 1951 to December 81, 1962.
The Director of that library has stated that she was a very capable and skilled professional librarian. At oral argument granted
to the petitioner she presented a letter from the H. W. Wilson
Company of New York verifying her employment there as a professional librarian since September of 1967.
The issue to be resolved here is whether she may be considered
to be a qualified member of the professions by reason of education combined with work experience. Her work experience is

quite impressive—she has been employed for a period of over 12
years as a professional librarian. In connection with her employ-

ment with the Hebrew University there has been submitted a letter from one Nathalie Delongaz, presently Chief, Shared Cataloging Division of the Library of Congress. Miss Delongaz states
that she was in charge of the Cataloging Department of the Hebrew University Library from 1958 to 1962. While there she supervised the petitioner (among others) who was a professional librarian and who had obtained her training in the field at the
library itself. She was employed as a senior cataloger.
Another letter has been submitted offering the subject a position as a professional librarian. This is from John W. Cronin,
Director, Processing Department of the Library of Congress. He
states that he is acquainted with the petitioner and knows of her
qualifications and offers her the position of professional librarian,
GS-11, at such time as she is available. He further states that
the position of professional librarian at the Library. of Congress
commences at a GS-7 wage rate.
As previously indicated, the petitioner is currently employed as
a professional librarian and in addition has received offers of employment in that capacity from the Library of the New York
Academy of Medicine and the Medical Library Center of New
York.
While the grant of a preference under section 203 (a) (8) of the
Immigration and Nationality Act normally requires that the petitioner have a high degree of education—at least a baccalaureate
it is recognized that in a few areas of the professions it is not
always possible to obtain the usual formal education. In this case
it has been pointed out that in Israel, at the time the subject re-

204

Interim Decision *1957
sided there, there was no school offering degrees in library science. Instead she worked in a library and while there she studied
some of the subjects relating to the library profession. It is fairly
obvious that she has now, after twelve years of work experience,
reached a level of competence which is at least equal to that
which a person would acquire after the usual period of formal education. In fact, the indications are in this case that the subject is
more fully developed as a professional librarian than a recent
graduate would be.
The Service has held that experience may be substituted for
formal education in Matter of B—, 12 I. & N. Dec. 17. The circumstances in this case are very similar to those found in the
precedent decision. Therefore, because of the petitioner's extensive experience and high level of attainment in the field of librarianship, it is found that she qualifies as a member of the professions within the scope of section 203 (a) (3) of the Immigration
and Nationality Act.
It is ordered that this petition be and the same is hereby approved.

205


MATTER OF I)

In DEPORTATION Proceedings
NOR-81
Decided by Board May 13, 1959
Fine —Section 271(a) of 1955 act — Not imposed where aliens dld not "land.Assisting and concealing alien stowaways on board vessel will not subject
ship's officer to fine under section 271(a) of the 1902 act when a "landing"
is not actually effected.

Ix RE: A—D—, boatswain ex SS. ENRICO C, which arrived at the port
of Newport News. Va., from foreign on April 23, 1959. Alien stowaways involved: U , P—S—, T-11— and 11—
G—.
Stasis row FINE: Act of 1952—Section 271(a) (8 U.S.C. 1321 (a) 1.
BEFORE THE BOARD

Discussion: This appeal is directed to an administrative penalty
of $4,000, $1,000 as to each of the alien stowaways, which the district director has ordered imposed on the above-named officer of the
vessel for failure to prevent their landing. He also ordered that the
penalty be mitigated to the dollar equivalent of 1,200,000 lire. He
Len Lime or dered that the fine be remitted in its entirety, conditioned
upon the vessel's officer named above executing a release as to any
claim of right or title to the 1,200,000 lire, in favor of its return to
the four named stowaways. The appeal will be sustained and the
fine remitted in its entirety, without condition.
The alien here sought to be charged with responsibility was serving as boatswain on this vessel. He assisted the four named stowaways to board the vessel in an Italian port. He concealed them
throughout its voyage to the United States. He continued their
concealment until immigration inspection of the crew had been completed, upon arrival. However, Service officers later boarded the
vessel and discovered the stowaways on the main deck, in readiness
to go ashore. They also found 1,200,000 lire which the boatswain
had received from the stowaways.
Thereafter, the stowaways and the boatswain were taken into
immigration custody. They were then taken ashore for possible
criminal prosecution. Apparently, the four stowaways were con323

rioted and sentenced under section 275 of the Immigration and
Nationality Act (8 II.S.C. 1325), but the boatswain was acquitted.
This statute makes it the duty of every person, including °file.,

of the vessel, "to prevent the landing" of aliens. Clearly, therefore,
the element essential to the establishment of a violation herein is a
"landing." That is, the initial issue raised is the presence or absence
of this fundamental feature.
Judicial decisions on the point, particularly those based on predecessor legislation,' indicate that the term "landing" is a, word of
art. The Supreme Court of the United States has defined it thus:
"'to land' means to go ashore" and " 'landing from such vessel' takes
place and is complete the moment the vessel is left and the shore is
reached." This language was later quoted verbatim by the Court.

of Appeals for the Ninth Circuit.' Accordingly, and in view of the
penal nature of this statute, requiring for it strict interpretation,
we hold that no "landing" was effected here. In so doing, we find
unavailing the district director's efforts, with citations, to equate.
the taking ashore of these aliens to an "entry" for purposes of this
proceeding, and we are not herein called upon to decide the validity
of this argument as it relates to other sections of the Immigration
and Nationality Act and expulsion proceedings thereunder.
Order: It is ordered that the appeal be sustained and that no
fine be imposed.
°See. 18, Act of March 3, 1503; 32 Stat. 1213. Sec. 18, Act of Feb. 20, 1907;
34 Stat. 898. Sec. 10, Act of Feb. 5, 1917; 39 Stat. 874; former 8 U.S.C. 146.
Taylor v. United States, 207 U.S. 120, involving sec. 18 of the 1903 act,i,
supra.
Neer. v. United States, 169 Fed. 782, also involving sec. 18 of the 1903 act.

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