Interim Decision #2614

MATTER OF

0, et al.

In Exclusion Proceedings

A-22432000, et al.
Decided by Board May 12, 1977, and September 14, 1977
(1) This proceeding involves 126 aliens who were applicants for admission to the United
States. They were brought to Guam on United States military aircraft as part of the
evacuation of Vietnam. While they were not natives of Vietnam, they had Vietnamese
spouses and had Vietnamese children. Most had been employed by U.S. Government
contractors. The Service contends. that these aliens were not paroled into the United
States but that their inspection was deferred. The applicants contend they were paroled
into the United States under section 212(d)(5) of the Immigration and Nationality Act
and therefore entitled to prior notice before exclusion proceedings were begun.
(2) It is the opinion of the Board that these applicants were paroled. The procedure
employed in bringing them to the United States was no different from the procedure
used to bring aliens to the United States who concededly were paroled under section
212(d)(5) of the Act. The correspondence written by the Attorney General and Commissioner to the Congress would appear not to limit the use or the parole authority solely to
natives of Vietnam. Congress, in defining the term "refugee" used a definition broad
enough to encompass the present applicants which supports the conclusion that th000

applicants were not to be treated differently than native–born Vietnamese. The applicants were persons who had lived in Vietnam. The majority of them had been employed at one time or another by U.S. Government contractors. They were removed
from Vietnam with the express consent of the United States Government. These facts
taken together lead to the conclusion that the applicants were paroled into the United
States.
(3) Under 8 C.F.R. 212.5(b) an alien is entitled to written notice of termination of parole
prior to the institution of exclusion proceedings. These aliens were paroled; however,
the Service did not provide them with written notice of termination of their parole prior
to the institution of exclusion proceedings, as required by 8 C.F.R. 212.5(c). The Service
motion for reconsideration of the Board's decision terminating the exclusion proceedings is denied.
EXCLUDABLE:
Order Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant—no visa
ON BEHALF OF SERVICE:
Paul C. Vincent, Esquire
Chief Trial Attorney

ON BEHALF OF APPLICANTS:
Jack Wasserman, Esquire
Wasserman, Orlow, Ginsberg Sr Rubin
1707 H Street, N. W.
Washington, D. C. 20006

Before the Board May 12, 1977
Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members
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Interim Decision #2614
These cases are before us on appeals from decisions of an immigration
judge finding each applicant excludable from the United States under
section 212(a)(20) of the Immigration and Nationality Act. Each applicant was brought to the United States territory of Guam by United States
authorities in the course of evacuating various persons from the Republic of Vietnam in April and May 1975. The total number of these
evacuees numbered approximately 130,000. Exclusion hearings were
conducted on September 8 and 9, 1975. In each hearing, several applicants appeared before the immigration judge simultaneously. In all, six
hearings are involved concerning 126 aliens. In turn, these matters
were consolidated on appeal and argued as one case before the Board.
In each instance, the applicant was brought to Guam on military
aircraft. It appears that some of the applicants had "affidavits" ' from
the United States Embassy; others had had their passports stamped by
an embassy official. In either case, the possession of the affidavit or the
stamped passport was sufficient documentation to enable each applicant
to board United States military aircraft or vessels and to be brought to
United States territory. None of the applicants, which was apparently
the case with all alien evacuees regardless of nationality, had visas in
their possession. All of the applicants were born in countries other than
Vietnam, a fact which seems to underlie these exclusiqon proceedings.
In each ease, the immigration judge found that the applicants had not
been paroled into the United States; that their inspection had merely
been deferred and that they therefore were excludable under section
212(a)(20) of the Act. The applicants contend that they were paroled
into the United States pursuant to section 212(d)(5) of the Act, and
therefore were entitled to a written notice of revocation of parole prior
to the institution of exclusion proceedings. See 8 C.F.R. 212.5. No such
notice was given since the Service took the view that parole had not
been granted. The applicants also argue that even if they were not
paroled, the Government is equitably estopped from excluding and
deporting them since they were brought here by the United States and
with full knowledge that they lacked visas at that time. Finally, the
applicants argue that any exclusion order is ineffective since they cannot, in any event, be returned to the Republic of Vietnam, which they
argue is the "country from whence they came" and the only country to
which they may be returned under section 236 of the Act. _
In none of the six cases does the immigration judge's decision contain
a detailed discussion with respect to each applicant. The transcripts also
The nature of these affidavits is not entirely clear from the record. However, it
appears that there were forms normally used by the Embassy for matters other than
parole.

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do not reveal much individual information. However, all but one 2 of the
126 aliens who are involved were interviewed by Service officers prior
to the exclusion hearings. The transcripts of these interviews were
introduced into evidence in each instance. 3
Although the status and backgrounds of the majority of the applicants
is similar, there are enough differences to warrant fuller discussion. For
convenience, each joint hearing will be referred to separately by the
name of one alien.
The immigration judge's decision in Ho Joo Wong concerns 33 aliens.

Thirty-two are Koreans and one is a native and citizen of India. All but
four of this group had worked, at least at one time, for United States
Government contractors. Among the four who did not is the Indian
native, who was self-employed, and one Korean who was a seaman, but
who lived in Saigon. Seven of this group are married to Vietnamese
women. One other, although married to a Vietnamese, had not divorced
his Korean wife. Five other applicants admitted to "common-law" relationships with Vietnamese women. They had been in Vietnam for a
period of nine years, eight months, to two years. The large majority had
arrived in Vietnam prior to 1970. Several had initially entered Vietnam

as members of the Army of the Republic of Korea and had remained
after discharge and, ultimately, taken employment with United States
contractors. Four indicated they were permanent residents of Vietnam,
or intended to become such.
In Yonk Sik Ko, 37 aliens are involved. Five are Chinese and the
remainder are Koreans. Of this group, eleven Koreans had Vietnamese
wives and, in most instances, children. One Chinese had a Vietnamese
wife. One other Chinese applicant had two children who were born in
Vietnam, but whose wife was a Chinese citizen. He was a permanent
resident of Vietnam_ One other Chinese citizen indicated that he had

intended to become a permanent resident.
All but a few of these applicants had been employed by United States
contractors. Two of the Chinese had worked for Air America. All these
applicants had been in Vietnam prior to evacuation for periods ranging
from five years to nine years and six months.
U Soon Yi concerns 18 aliens. This group is more diverse. Seven are
Koreans, three are Laotians,' six are Filipinos and two are Chinese.
2 The one applicant who does not appear to have been interviewed is the wife of an
applicant who was interviewed and who furnished information about his wife.
3 In four of the hearings, the applicants were represented by counsel. With respect to
these hearings, counsel objected to the introduction of the written statements. This
objection has not been pursued on appeal.
None of the Laotians were in Vietnam at the time of evacuation but were evacuated
from Thailand. One of the Laotians was born in Vietnam, but indicated that she was a
Laotian citizen. The other two had no connection whatever with Vietnam.

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One of the Chinese natives claimed Vietnamese citizenship, but lacked
proof to establish his claim. As in the ether cases, some of the applicants
had Vietnamese wives. At least four, three Filipinos and one Chinese,
appeared to be permanent residents of Vietnam. Most of these applicants had also worked at one time for United. States contractors.
Eighteen aliens are involved in Chong Ku 0. All are Koreans. None
appeared to have any family ties in Vietnam other than "common-law"
wives, and, in some cases, children born of such relationships. At least
one applicant had never been employed by a United States contractor.
None had been in Vietnam prior to evacuation for a period of less than
five years; some had been in Vietnam for nearly nine years. One applicant had a Form 1-94 which indicated that he had been paroled into the
United States at Hawaii. He was thereafter airlifted to Guam.
In Moon Sik Paik, 15 aliens are involved. All are Koreans. Fourteen of these worked for United States contractors, at least at one
time, while in Vietnam. None had Vietnamese families. The aliens in
this group had been in Vietnam for periods ranging from nine years and
two months to four years and three months.
Finally, five aliens are involved in Du k Alton Chen. All are Koreans.
Three had worked for United States contractors, and one for a component of the United States Army. The fifth alien entered Vietnam as a
member of the Army of the Republic of Korea. It is not clear whether he
ever worked for a United States Government contractor. Four of these
applicants arrived in Vietnam in 1957; the other in 1971.
I
Under section 212(d)(5):
The Attorney General may in his discretion parole into the United States temporarily
under such conditions as he may prescribe for emergent reasons or fur reasons deemed
strictly in the public interest any alien applying for admission to the United States, but
such parole of such alien shall not he regarded as an admission of the alien and when the
purposes of such parole shall, in the opinion of the Attorney General, have been served
the alien shall forthwith return or be returned to the custody from which he was paroled
and thereafter his ease shall continue to,be dealt with in the same manner as that of any
other applicant for admission to the United States.

Under the regulations, the authority- to grant parole has been delegated

to the District Director of the port of entry in which the alien seeks to
come to the United States 8 C.F .R. 212.5(a). The regulation contemplates in the ordinary situation that parole will be granted at such
time as an alien presents himself for inspection in the United States.
However, 8 C.F.R. 212.5(c) makes provisions for the granting of advance
parole. Under this portion of the regulation an alien outside the United
States, but who will be coming to the United States, may seek parole
pursuant to section 212(d)(5). In the usual circumstance, if parole is
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Interim Decision #2614
granted, he will be issued Form 1-512. See also Operations Instruction
212.5(c). If an alien has been paroled, "parole may be terminated on
written notice to the alien and he shall be restored to the status which
he had at the time of parole and further inspection or hearing shall be
conducted under section 235 and 236 of the Act. . . ." 8 C.F.R. 212.5(b).
It is clear upon these records that none of the applicants were issued
Form 1-512. However, it also appears that none of the other approximately 130,000 alien evacuees who came to the United States from
Vietnam was issued such a form, regardless of nationality. 'Thus, pro

cedurally, these aliens were treated no differently than any others being
brought to United States territory from Vietnam in April and :May 1975.
As we understand the position of the Service, these aliens were not
paroled into the United States, but merely brought to this country by
the United States Government for a determination to be made on arrival
whether they would then be paroled. We are unaware of, and the
Service had not provided us any authority making it lawful for the
Government to bring these aliens to the United States other than the
parole authority granted the Attorney General under section 212(d)(5)
of the Act_ No special legislation was enacted which would have permitted the entry of such a group of aliens. The term "parole" is not defined

in the Act itself, nor in the regulations. We are unaware of any cases,
either of the courts, or this Board, which define "parole." The Service's
own Operations Instructions also do not define parole. Neither counsel
for the respondents nor the Service have pointed us to any source which
would define the term.
However, in 1975, there was a significant amount of correspondence
between the Attorney General, the Commissioner of Immigration and
Naturalization, the State Department, and members of Congress, concerning the status of the evacuees. This correspondence has been reprinted as an appendix to the Staff Reports of the Senate Subcommittee
to Investigate Problems Connected with Refugees and Escapees of the
Senate Committee of the Judiciary, 94th Congress, 1st Session
[hereinafter Staff Reports]. These letters were referred to at oral argument by the counsel for the applicants and the appellate trial attorney
for the Service.
It is clear from these letters that the legal authority invoked for
bringing the aliens from Vietnam to the U.S. was section 212(d)(5) of
the Act. 5 The April 18, 1975, letter from the commissioner indicates that
initially, the INS intended to parole certain classes of Vietnamese war
5 E.g., Letter from Roger J. McCloskey, Assistant Secretary for Congressional Relations, Department of State, to Senator Edward M. Kennedy (April 24, 1975) reprinted in
Staff Reports, App. III at 157; Letter from L.P. Chapman, Commission of Immigration
and Naturalization, to Senator James 0. Eastland, (April 18, 1975) reprinted in Staff
Reports, App. IV at 162.

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Interim Decision #2614
refugees. These included certain Cambodians in Thailand, a small
number of South Vietnamese in the Philippines, approximately 3,000
Vietnamese for whom visa petitions had been filed, a larger number
of Vietnamese nationals who were immediate relatives of United States
citizens or close relatives of lawful permanent residents, and certain
other Cambodian refugees and diplomats. 6 In an April 22, 1975, letter,
the Commissioner states that an additional class of 50,000 natives of
Vietnam who were in a "high risk" category because of their close
association with the U.S. Government in Vietnam were to be paroled by
the Service.? A letter of April 28, 1975, from the Secretary of State to the
Attorney General requested that the "high risk" categories of Vietnamese be expanded to include former employees of United States firms
operating in Vietnam. 8
We note that the letter to this time referred to Vietnamese natives or
nationals of Vietnam. However, in a letter from the Commissioner to
the Chairman of the Senate Judiciary Committee, the "high risk" category was to include "five types of Vietnamese persons" and such class
was to be expanded. 9 In a letter dated July 15, 1975, the Commissioner
noted that there were on Guam a number of families whose principal
member was not Vietnamese. It was proposed that they all be treated
as refugees. '° The references in this letter were to 'refugees" and not
specifically to Vietnamese natives.

These letters, standing by themselves, are inconclusive as to whether
or not non-Vietnamese aliens who were evacuated by the United States
were intended to be paroled into the United States. We do note, however, that the early correspondence refers to Vietnamese natives, while
later correspondence does not. Also, as 'with certain non-Vietnamese
refugees discussed in the Commissioner's letter of July 15, 1975, several
of the present applicants appear to have family or other ties to Vietnam.
Additional factors also must be considered. Congress, in an attempt to
assist the evacuees, passed legislation which permitted funding for the
necessary costs of bringing the refugees to the United States. This

legislation, enacted on May 23, 1975, is known as the Indochina MigraId.
Letter from L.F. Chapman, Commissioner, to Senator James 0. Eastland (April 22,
1975) reprinted in Staff Reports, App. IV at 164. See also Letter from Edward H. Levi,
Attorney General, to Senator - James 0. Eastland (April 22, 1975) reprinted in Staff
Reports App. IV at 164, 165.
Letter from Henry A. Kissinger to Edward H. Levi, (April 28, 1975)reprinted in Staff
Reports, App. IV at 167.
Letter from L.F. Chapman, to Senator James 0. Eastland (April 28, 1975)reprinted
in Staff Reports, App. IV at 158.
1 ° letter from L.F Chapman to Senator James 0. Eastland (July 15, 1975) reprinted in
Staff' Reports, App. IV at 170-171.

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Interim Decision #2614
tion and Refugee Assistance Act of 1975, Pub. L. 94-23 89 Stat. 87.
Section 3 of this Act defines the term "refugee" as:
. . . aliens who (A) because of persecution or fear of persec -ution on account of race,
religion, or political opinion, fled from Cambodia or Vietnam; (B) cannot return there
because of fear of persecution on account of race, religion, or political opinions; and (C)
are in urgent need of assistance to the essentials of life."

This definition on its face does not restrict the term refugee to natives of
Vietnam or Cambodia exclusively. A review of the legislative history

does not add any further light on the bare definition contained in the Act
itself. Similarly, a review of the floor debates appearing in the Congressional Record 11 also does not amplify this definition any further.
The present applicants would seem to fall within the definition of
refugee as provided in the Indochina Migration and Refugee Assistance
Act of 1975. They are aliens; they did apparently, or at least claim to
have fled Vietnam for fear of persecution because of race, religion, or
political opinion. They, just as native-born Vietnamese, would not be
able to return there for the same reasons and apparently were in need of
assistance for the essentials of life. Those aliens who are permanent

residents of Vietnam would indeed appear most likely to be those
non-Vietnamese who Congress intended to be included within this definition of refugee. Although this term by itself does not indicate that these
applicants were meant to be encompassed within the parole authority of
the Attorney General, it does tend to the conclusion that the assistance
was not being limited merely to Vietnamese nationals.
Counsel for the applicants at oral argument raised as an additional
matter the contention that these applicants could not be returned to a
country other than Vietnam, since that is "the country from whence
they came." See section 236 of the Act. While we do not pass on that
argument, we note that there is case law that holds "the country from
whence he mine" means the last country where an alien applicant had a
place of abode. United States v. Holland-America Line, 231 F.2d 373 (2
Cir. 1956); see also Menon v. Esperdy, 413 F.2d 644 (2 Cir. 1969);
United States ex rel. Shang v. Murff, 176 F. Supp. 253 (S.D.N.Y. 1959),
affirmed 274 F.2d 667 (2 Cir. 1960). In this case each of the present
applicants other than those noted 12 was either a resident or domiciliary
,

of Vietnam. Thus the country to which they will have to be returned
would normally be the Republic of Vietnam. This would appear to lend
further support to the idea that Congress intended to include the present applicants within the term "refugee" since if they were not admissible they might, in theory, be returned to Vietnam.
" 121 Cong. Rec. H4039 et seq. (daily ed. May 14, 1975).
12 See note 4, supra.

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Interim Decision #2614
There are, then, several points which, taken together, persuade us
that these applicants were paroled. The procedure employed in bringing
the applicants to the United States apparently was no different from the
procedure used to bring aliens to the United States who concededly
were paroled pursuant to section 212(d)(5) of the Act. The correspondence from the Attorney General and the Commissioner of Immigration
and Naturalization to Congress would appear not to limit the use of the
parole authority solely to natives of Vietnam. Congress, in defining
"refugee," used a definition broad enough to encompass the present

applicants, which in turn lends some support to the conclusion that
these applicants were not to be treated differently than native-born
Vietnamese. They were "persons" who had lived in Vietnam. The
majority of them had been employed at one time or another by the
United States Government contractors. They were removed from Vietnam with the express consent of the United States Government. All this
taken together leads to the conclusion that the applicants were, in fact,
paroled. 13
Since we conclude that the applicants were paroled pursuant to section 212(d)(5) of the Act, the question remains as to what effect this will
have on these exclusion proceedings. Under 8 C.F.R. 212.5(b), the
applicants are entitled to written notice of termination of their parole
prior to the institution of exclusion proceedings. This was not done and
the exclusion proceedings were prematurely instituted. At a minimum
then, the records must be returned to the Service. The applicants must
be given notice of termination of parole before further proceedings may
occur."
However, due to the peculiar circumstances of this case, the Service
may wish to consider more than merely furnishing the applicants a
written notice of revocation and then reinstating exclusion proceedings.
In the past, in eases involving similar fact settings, hearings have been
" At oral argument counsel also placed some reliance on cases concerning aliens who
had been brought to the United States involuntarily. See United States ea rel. Sommerkaup v. Zimmerman, 178 F.2d 645 (2 Cir. 1949); United States ex rel. Paetanv.Watkins,
164 F.2d 457 (2 Cir. 1949; United States as rel. Bradley v. Watkins, 1631<.2d 328 (2 Cir.
1947). The cases are distinguishable since the present applicants do not claim to have
been brought to the United States involuntarily nor is there any indication they wish to
withdraw their applications for admission.
" Counsel for the applicants also argues that in any event the Government would be
equitably estopped from excluding these applicants. In view of the disposition we made of
this case we need not address that contention. Nonetheless, absent the finding of affirmative misconduct, the Government week) not he equitably estopped from deporting or
excluding aliens from the United States. See Matter of Morales, Interim Decision 2416
(BIA 1975). See generally RN v. INS, 414 U.S. 5 (1913).
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Interim Decision #2614
held in which aliens have been given the opportunity to contest revocation of parole. See United States ex rel. Paktorovics v. Murff, 260 F.2d
610 (2 Cir. 1958). If a similar course were followed here, the issue could
be met whether non-Vietnamese nationality, in itself warranted an alien
being treated differently from the other parolees." Since we have
concluded that these applicants were in fact paroled, the Service may, of
course, choose to place the applicants in extended parole status rather
then to revoke parole. We recognize that the decision to grant, revoke,
or extend parole is within the province of the District Director and that

any appeal from that decision lies else-where than to the Board.
ORDER: The exclusion proceedings are terminated.
Before the Board September 14, 1977
BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

This case is before us on motion of the Service requesting that we
terminated
exclusion proceedings of 126 aliens brought to the United States territory
of Guam by United States authorities as part of their attempt to evacuate
reconsider our decision dated May 12, 1977, in which we

persons from South Vietnam during April and May 1975. The primary

basis for our decision was our finding that the applicants had been paroled
into the United States pursuant to section 212(d)(5) of the Act and that,
therefore, they were entitled to written notice of termination of their
parole prior to the institution of exclusion proceedings.
The Service argues that, although the applicants were paroled on
Guam pending disposition of their applications to stay in the United
States as refugees, it was not necessary to formally revoke parole
before instituting exclusion proceedings.
Whether the applicants had been paroled initially upon arrival on
Guam, or were paroled after arrival, as now conceded by the Service, is
immaterial. It is a fact that they were paroled. Under these circumstances, the regulations require that notice be given, perhaps so
that the District Director may consider an extension of parole in a given
case, rather than placing the aliens in exclusion proceedings im-

" In this connection we note that the three Laotians, Huong Chan, Somphone
Xongnixay, and Chan Thone Saladouangchanik, all appear to have secured passage under
false names and possible false claims of Vietnamese citizenship. The Service may wish to
consider this in connection with extension or revocation of parole.
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Interim Decision #2614
mediately.' Whatever the reason for the regulation, it exists, and it was
not complied with.
The regulation in question is clear. Under S C.F.R. 212.5(b), aliens
are entitled to written notice of termination of their parole prior to the
institution of exclusion proceedings. Inasmuch as we have found that
the applicants here were, in fact, paroled into the United States, there
is no reason to look behind the clear meaning of the words used hi the
regulation. In addition, we note that any parole status is temporary. It
makes no difference whether the purpose of the parole ivas to allow the
applicants to enter while a determination is made on their present
applications for asylum, or on a review of a previous grant of asylum, 2 or
for some other purpose. The regulations require that before a parole
status is revoked, the alien shall receive notice of the Government's
intention.
We note in passing, that the fact that these aliens resided for long
periods in South Vietnam before being evaculated by United States
authorities, further complicates the serious legal issues raised if they
are not treated as other parolees in like circumstances and parole is
sought to be revoked without notice solely because they are not native-

born Vietnamese.
Accordingly, we will not retreat from our prior decision and the
motion will be denied

ORDER: The motion is denied.
APPENDIX
A22 056 081
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CHAN, Sang Ho
KIM, Chi Duk
LEE, Ju Bak
KIM, Kwang Ui
KIM, Yu Myong
KIM, Hae Young
CHO, Sung Ok
JUN, Huyng Kon
HWANG, Krung Ok _
CHOE, Pok Su ,
IM, Yon Yong
HWANG, Sang In
LEE, Duk Ho
KIM, Kap Sin
LEE, Ju Hun
KANG, Tae Un
CHAI, Hyun Joo

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164

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YI, U Soon
AN, He Seon
KIM, Tong Chi
OH, Boo Ken
IGNAGIO, Victor A.
CHAN, Huong
SOMPHONG, Xongnixay
CHAN TkiuNE,
Sonladovangchanh
YI, Se Icon
KIM, Ki Hong
DOMINGO, Jose V.
ASISTORES, Rogelito A.
LUU, Dung Tuyen
FINES, Eugenio Castillo
PAVILONIA, Gavino P.
MENDOZA, Jose C.

1 This procedure also permits an alien to withdraw his application for admission to the
United States on uccabiou and to leave voluntarily, before the inotitution of oxelueion

proceedings.
2 See United States ex rel. Paktorcraks v. Murff, 260 F.2d 610 (2 Cir. 1958).
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APPENDIX

A22 056 105 KIM, Tong Chol
A22 056 111 YUN, Young U
A22 044 152 HERKISHNANI,

A22 056 342 KIM, Im Sock
A22 051 742 CHU, Hok Shun
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092
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842
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107
310
334

PAIK, Moon Sik
KIM, Im Sock
LEE, Han Suk
KIM, Bong Ha
LEE, Sung Mo
CHANG, Jung Ryang
KIM, Bok Dong
LIM, Chong Ok
YANG, Jin Sook
RA, Myung Chin
YI, Yun Chi
LEE, Sang Soo
SHIM, Un Hong
MOON, Jung Yul
CHOI, Yoo Bae
CHA, Hyun Duk
KANG, Young Ki
KANG, Suk Dong
LEE, Young Kook
LEE, Wook Chong

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001
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HWANG, Ho Joo
KIM, Kwang Sohn
KIM, Poom Hoon
KIM, Ho Bum
KUM, Do Sun
CHOI, Sung Ki
LEE, Sok Rae
KIM, Su KR
HUH, Yoo Soon
PAK, Hyun Pil
CHOE, Ki Woung
LEE, Dae Bong
CHUN, Dong Ok
JUN, Kwang Sam
LEE, Ju Tai
KIM, Ki Hyun
NAM, Chong Uk
PAK, Chun Ho
KANG, Song Run
SONG, Ki Soo
YI, Yong Hui
LEE, Dae Bok
LEE, Wong Son

086
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201
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A22 042
A22 056
A22 056

093
276
277
278
280
281
286
288
290
292
294
298
306
307
308
309
311
323
323
324
A22 056 325
A22 056 328
A22 056 332
A22 056 333
A22 056 335

A92 056 336
A22 056 339
A22 056 341

A22 056 344
A22 056 352

A22 056 353
A22 002 659
A22 034
A22 010
A22 431
A22 056

756
841
905
316

A22 056 343

LEE, Ho Sun

354

Lachhman
CHOI, Doo Hyon
BAK, Soon Hwan
CHA. Won
KANG, Song Jik
HONG, Sung Joo
LEE, Joo Kwang
KO, Yong Sik
SU, Sa Gil
KIM, Yong Kak
CHUNG, Jun Hun
Y1, Too Yul
YI, Soo Ja .
YOON, Hwa Young
KIM, Sung Ku
WON, Yong Hai

HONG, Che Chin
CHANG, Tu Kuk
KIM, Sok Kyu
YU, Foo Chen
MA, Huai Teh
LAU, Chun Pong
KIM, Young Joung
RANG, Chun Hyong
CHUNG, Chang Ho
SHIH, Min Rung
NAM, Soo Bok
SO, Chang Wan
SOK, Byong Hwan
NAM, Kyung Hee
YI, Su Tae
PAK, Chae Ho
SIN, Hyong Kyun
LEE, Moo Kun
HWANG, nu Hyon
SU, Tai In
KOO, Young Hoe
LEE, Won Ki
LEE, Won Tae
CH1J, Hwang Kuai
CHUNG, Jhoon Ki
YOON, Sung Ho
LEE, Kyong Ok
KIM, Young KI


Interim Decision #2097

MATTER OF BARRAGAN

In Deportation Proceedings
A-19883045
Decided by Special Inquiry Officer April 22, 1971
Decided by Board September 13, 1971
The departures of respondent, an alien illegally in the United States, to
Mexico on February 2, 1968, and April 3, 1970, pursuant to an administrative grant on each occasion of voluntary departure without the institution of deportation proceedings, were meaningful, rather than casual departures, despite her intent to return and actual return to the United
States on the same day or within a short time thereafter. Therefore, the
relatively brief periods of her absence from this country broke the continuity of her physical presence in the United States for the purpose of
qualifying for suspension of deportation under section 244(a) (1) of the
Immigration and Nationality Act, as amended.
CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2) )—Nonimmigrant visitor—remained longer.
ON BEHALF OF SERVICE:
Reece B. Robertson
Trial Attorney

ON BEHALF OF RESPONDENT:

Otto F. Swanson, Esquire
366 South Broadway
Los Angeles, California 90013
(Brief filed)

BEFORE THE SPECIAL INQUIRY OFFICER

(April 22, 1971)
The respondent is a 36-year-old widow. As alleged in the order
to show cause she admitted through counsel that she is a native
and citizen of Mexico; that she entered the United States at San
Ysidro, California in April 1970; that she was admitted as a nonimmigrant visitor and authorized to remain in the United States
for a temporary period not to exceed 15 days, and that she has
not departed from the United States. The respondent further con.

759

Interim Decision #2097
ceded deportability on the charge contained in the order to show
cause. On the basis of the foregoing admissions, I have determined and concluded that she is clearly deportable from the
United States on said charge.
During the course of the hearing the respondent through counsel submitted an application for suspension of deportation (Exhibit 2). Counsel contended that the respondent was exempt from
the provisions of section 244(f) of the Act despite the fact that
she is a native of contiguous territory because she is unable to
obtain a labor certification as a sewing machine operator. Counsel
also requested in the respondent's behalf, in the alternative, the
privilege of voluntary departure in lieu of deportation. The Trial
Attorney stated for the record that it was the Service's position
that inasmuch as the respondent was statutorily ineligible for
suspension of deportation the usual investigation conducted in
such cases was being waived and that the Service for the purpose
of the instant proceedings would concede that the respondent was
and had been a person of good moral character for the past seven
years.
The respondent testified that she first entered the United States
in November 1963 at San Ysidro, California at which time she
was admitted as a border crosser for not more than 72 hours. She
stated that she has resided here continuously since then except
for two departures to Mexico through the port of San Ysidro,
California on February 2, 1968, and April 3, 1970. The respondent admitted that on both of the aforementioned dates she had
been apprehended by officers of this Service who permitted her to
leave the United States voluntarily. She declared that after her
first departure on February 2, 1968, she returned to the United
States at San Ysidro, California on the same day by presenting
her border crossing identification card. She also admitted that
after her second voluntary return to Mexico on April 3, 1970, she
next returned to the United States at San Ysidro, California on
April 10, 1970, again by presenting her border crossing card.
In order to qualify for suspension of deportation under section
244(a) (1) of the Act an applicant must establish, among other
things, that he has been physically present in the United States
for a continuous period of not less than seven years immediately
preceding the date of his application for suspension of deportation. The question to be determined in this regard is whether the
respondent's departures from the United States to Mexico on
February 2, 1968, and April 3, 1970, pursuant to the privilege
granted to her on each occasion to depart voluntarily in lieu of
r7C11

Interim Decision #2097
the institution of deportation proceedings, broke the continuity of
her physical presence in the United States. Based upon the statements made for the record by the Trial Attorney it is assumed
that it is the Service's contention that departures from the
United States pursuant to directives of officers of the Service,
acting for the Attorney General, cannot be characterized as brief
and casual but, rather, were meaningful departures which serve
to distinguish the instant case from the precedent decisions rendered in Wadman v. INS, 329 F.2d 812; Git Foo Wong v. INS, 358
F.2d 151; and Toon Ming Wong v. INS, 363 F.2d 234, all of
which were bottomed upon the rationale of the Supreme Court in
Rosenberg v. Fleuti, 374 U.S. 449.
It is the respondent's position, however, that although it is admitted that she left the United States on two occasions such departures were not a significant and meaningful interruption of
her presence in the United States, citing Matter of Wong, 12 I. &
N. Dec. 271 (May 10, 1967 and June 23, 1967). The respondent
testified that on both occasions when she was required by officers
of this Service to leave the United States she had intended to return to this country immediately. Although she departed to Mexico on February 2, 1968, with her daughter, a native and citizen
of Mexico who was in the United States illegally also, she was not
accompanied by the child on the occasion of her last departure on
April 3, 1970. The respondent stated that because her daughter
had remained in the United States it was her, the respondent's,
desperate intention to return to the United States as soon as possible.
To state the primary issue in this case in another way: Does
the departure by an alien who is illegally in the United States,
pursuant to an administrative grant of voluntary departure without the institution of deportation proceedings, followed by a return to the United States on the same day or within a short time
thereafter, break the continuity of physical presence required to
qualify for suspension of deportation under section 244 (a) (1) ?
It has been held that deportation terminates residence. Mrvica
v. Esperdy, 376 U.S. 560 (March 30, 1964). An alien who departs
pursuant to an order of exclusion and deportation breaks the continuity of his residence. Matter P—, 8 I. & N. Dec. 167; Matter
of R—, 8 I. & N. Dec. 598. It has also been held that departure
pursuant to an order of voluntary departure granted in a deportation hearing does not break the continuity of residence for section 249 relief. Matter of Contreras-Sotelo, 12 I. & N. Dec. 596
(December 26, 1967); Matter of Benitez-Saenz, 12 I. & N. Dec.

761

Interim Decision #2097
593 (December 22, 1967). The Board of Immigration Appeals has
also held that enforced departure from the United States without
formal exclusion or deportation proceedings did not break the
continuity of domicile. Matter of C—, 2 I. & N. Dec. 168 (June
27, 1944).
Attention is directed to the fact that while the decisions referred
to in the paragraph above are concerned with the continuity of
residence and domicile under specified situations, none of said decisions dealt directly with the issue involved in the instant case,
namely, the continuity of physical presence in the United States
following a departure pursuant to a grant of administrative voluntary departure privilege. However, in discussing the specific
statutory prerequisites for suspension of deportation, it is stated
in Immigration Law and Procedure, Gordon and Rosenfield, in
section 7.9d (2) on Page 7-95: "Different qualifying periods of
sojourn are required (7 and 10 years) for the two statutory categories. But the mere maintenance of a domicile or place of general abode is not sufficient. The statute is explicit in commanding
in each instance continuous physical presence in the United
States for the requisite period. The requirement of continuous
physical presence, as distinguished from residence or domicile, is
new in the 1952 Act. ****" (Emphasis added.)
The Board has also recognized that "residence" and "physical
presence" are not synonymous. Matter of Young, 11 I. & N. Dec.
38 (January 29, 1965); Matter of Graham, 11 I. & N. Dec. 234
(June 25, 1965). Considering that both departures of the respondent from the United States in 1968 and 1970 were effected
'Dy her in order to avoid the institution of deportation proceedrigs by this Service, said departures must be regarded as meanngful rather than merely brief and casual, despite the intent and
tctual return to the United States shortly after the departures. In
he premises, it is concluded that the respondent's departures do
tot come within the rationale of the Wadman decision, supra. Insmuch as I find that, in light of the foregoing, the respondent
annot establish continuous physical presence in the United
Cates for the required. seven-year period, it is concluded that she
; statutorily ineligible for the privilege of suspension of deportaon.
During the hearing the respondent testified that she has been a
idow since her husband's death on December 11, 1956; that in
:exico she has her mother, brothers and sisters; that her only
ose relatives in the United States are her daughter and a

762

1

Interim Decision #2097
brother who is a lawful resident of this country; that her daughter was born in Mexico on February 2, 1957, shortly after her
husband's death; that she has never been arrested in the United
States or Mexico; that she has never been deported from the
United States; that she is not now and has never been a member
of the Communist Party or any other subversive organization ;
that she is employed as a sewing machine operator; that she has
raised her daughter without aid from any other person; that she
attempted to obtain an immigrant visa but was unsuccessful because she was financially unable to prosecute such application;
that if suspension of deportation is denied she would be ready,
willing and able to depart from the United States at her own expense when required to do so; that prior to coming to the United
States in 1963 she had resided on a very small ranch in Mexico
with her mother, brothers and sisters; that life there was very
hard; that they were very poor and there was no opportunity for
employment; that there was no school in the vicinity of the
ranch; that the same conditions exist in that area today; that if
she were required to leave the United States she would be compelled to return to the ranch inasmuch as there is no other place
she could go; that she would be unable to support herself ; that
during her residence in the United States she has been sending
money to Mexico for the support of her mother; that her daughter is attending school in the United States, and that if her deportation should be required she designated Mexico as the country of deportation.
Inasmuch as the respondent is statutorily ineligible for suspension of deportation, under the facts in the instant case, the
maximum relief for which the respondent can qualify is voluntary departure in lieu of deportation. As a matter of administrative discretion, said alternative form of relief which was applied
for in her behalf by counsel will be granted.
ORDER: It is ordered that the respondent's application for suspension of deportation be, and the same is hereby, denied.
It is further ordered that in lieu of an order of deportation the
respondent be granted voluntary departure, without expense to
the Government, on or before July 22, 1971, or any extension beyond such date as may be granted by the District Director, and
under such conditions as the District Director shall direct,
It is further ordered that if the respondent fails to depart
when and as required, the privilege of voluntary departure shall
be withdrawn without further notice or proceedings and the following shall thereupon become immediately effective: The re-

763

Interim Decision #2097
spondent shall be deported from the United States to Mexico on
the charge contained in the order to show cause.
BEFORE THE BOARD
(September 13, 1971)
The respondent is a 36-year-old native and citizen of Mexico
who has conceded deportability on the above-stated charge. She initially entered the United States in November 1963 on a border
crossing identification card which was limited to 72 hours. She
remained in the United States continuously except for a one-day
departure to Mexico in February 1968 and approximately a oneweek departure to Mexico in April 1970. On both of these occasions she was apprehended by officers of the Service and was permitted to depart voluntarily in lieu of the institution of formal
deportation proceedings. She reentered the United States after the
two departures utilizing her border crossing identification card
to regain entry. At the hearing the respondent conceded deportability. This appeal is from the special inquiry officer's decision of
April 22, 1971 which denied the respondent's application for suspension of deportation under section 244(a) (1) of the Immigration and Nationality Act. The basis for denial was that the respondent was statutorily ineligible for such relief since she had
not met the requirement of being physically present continuously
for not less than seven years in the United States. The special inquiry officer found the respondent deportable, but granted the requested privilege of voluntary departure on or before July 22,
1971.
The Board has reviewed the evidence and is satisfied that deportability has been established by evidence that is clear, convincing, and unequivocal. The special inquiry officer has prepared a
well reasoned decision encompassing all of the pertinent elements
of this case. We concur in his conclusion that the respondent's departures from the United States were meaningful, rather than
casual, departures and that the relatively brief periods of her
absence from this country constituted breaks in the continuity of
her physical presence in the United States. The evidence of record establishes that the respondent was apprehended on both occasions and chose to depart voluntarily rather than to become the
subject of deportation proceedings. The departures were therefore "enforced" departures and support the conclusion that there
were two clear breaks in the required continuity of physical presence in the United States.
10 fit

4

Interim Decision #2097
After carefully appraising the evidence in the light of the pertinent legal principles and case law, the Board can find no basis
for disturbing the decision of the special inquiry officer. In granting the respondent voluntary departure, the special inquiry officer
extended the maximum relief that may be awarded. Since the execution of the special inquiry officer's order has been stayed during the pendency of this appeal, the Board will provide for the
voluntary departure of the respondent within 90 days from the
date of this decision.
ORDER: It is ordered that the appeal be dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States within 90 days from the date of this decision or any
extension beyond that time as may be granted by the District
Director , and that, in the event of failure so to depart, the respondent shall be deported as provided in the special inquiry
officer's order.

765


Interim Decision_#2397

MATTER: OF JOQUIN

In Deportation Proceedings
A 19672307
-

Decided by Board June 11, 1975
(1) Respondent, deported in July, 1972, as a nonimmigrant visitor who remained longer,
returned to the United States in December, 1972, and was admitted as a nonimmigrant
visitor, although he had never obtained permission to reapply for admission after his
prior deportat on. He argues he was never informed of the need to obtain permission to
reapply, and tut deportation is barred by section 241(1) of the Act. Nothing in the Act
requires the Service to notify respondent that he needed permission to reapply for
admission after deportation.
(2) Respondent was properly held deportable, with section 241(1) held not applicable to a
nonimmigrant "overstay" or to an alien excludable at entry under section 212(a)(17) for
having failed to obtain permission-to reapply for admission. In Reid v. INS, 420 U.S.
619, 95 S. Ct 1164 (1975), the Supreme Court indicated that section 211(f) cannot
benefit an alien charged under section 241(a)(2) as having remained beyond the authorized lengtz of his stay. Also, section (a)(1) charge based on section 212(a)(19) or
section 211(a) charge similar to that at issue in INS v. Errico, 385 U.S. 214 (1966).
Section 241(1) of the Act does not preclude the deportation of an alien under section
241(a)(1), where the basis for the charge is excludability under section 212(a)(17) of the
Act.
CHARGES:
Order: Act of 1952—Section 241(a)(1)[8 U.S.C. 1251(aX1)}—Excludable—arrested
and deported, no permission to reapply for admission.
Lodged: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)I—Nonimmigrant
—remained longer.
ON BEHALF OF RESPONDENT: Peter Id. Siegel, Esquire
204 West Seventh Street
Wilmington, Delaware 19801

In a decision dated March 19, 1974, the immigration judge ordered the
respondent d sported from the United States. The respondent has appealed from that decision. The appeal will be dismissed.
The respor. dent is a native of Bermuda and a citizen of the United
Kingdom. He was deported from the United States in July of 1972 as a
nonimmigrant, visitor who had remained beyond the authorized length of
his stay. He last returned to the United States in December of 1972 and

348

Interim Decision #2;iu7

was admitted as a visitor authorized to remain until February 20, 1973.
Although admitted as a visitor in December of 1972, the respondent has
never obtained permission to reapply for admission after his deportation
in July of 1972.
The Service alleges that the respondent is deportable as a nonimmigrant "overstay" under section 241(a)(2) of the Immigration and Nationality Act, and is deportable under section 241(a)(1) as an alien
excludable at entry under section 212(a)(17) for having failed to obtain
permission to reapply for admission.
The respondent has admitted the factual allegations contained in the
order to show cause. He argues, however, that he was never informed of

the need to obtain permission to reapply, and that his deportation is
precluded by virtue of section 241(1) of the Act.
The record fails to indicate whether the respondent was informed prior
to his return that he needed permission to reapply for admission. However, the Act places no requirement on the Service to so inform a
deported alien. The respondent's lack of knowledge does not preclude a
finding of deportability. The respondent was excludable at entry as
alleged by the Service.
Moreover, section 241(1) does not benefit the respondent with respect
to either charge of deportability. In Reid v. INS, 420 U.S. 619, 95 S. et.
1164 (1975), the Supreme Court held that section 241(1) did not benefit an
alien who had entered the United States under a false claim to United
States citizenship and wh n was charged with deportability as an alien who
had entered without inspection under section 241(a)(2) of the Act.
The Supreme Court's opinion in Reid also indicates that section 241(1)
cannot benefit an alien charged under section 241(a)(2) as one who has
remained beyond the authorized length of his stay. See also CabucoFlores v. INS, 477 F.2d 108 (C.A. 9, 1973), cert. denied in companion case
of Mangabat v. INS, 414 U.S. 841(1973); Preux v. INS, 484 F.2d 396
(C.A. 10, 1973), cert. denied, 415 U.S. 916 (1973); Milande v. INS, 484
F.2d 774 (C.A. 7, 1973); Cortez—Flores v. INS, 500 F.2d 178 (C.A. 5,
1974). The Supreme Court's discussion of section 241(f) in Reid further
indicates that section 241(f) will only prevent an alien's deportation on a
section 241(a)(1) charge which is based either on section 212(a)(19), or on a
section 211(a) charge similar to the charges at issue iniNS v. Errico, 385
U.S. 214 (1966). Section 241(1) therefore does not preclude the respondent's deportation on the charge based on section 212(a)(17). See also De
Vargas v. INS, 409 F.2d 335 (C.A. 5, 1968), cert. denied, 396 U.S. 895
(1969); Haines Herrera v. Rosenberg, 463 F.2d 451 (C.A. 9, 1972).
The respondent's deportability on the charges alleged by the Service
has been established by clear, convincing and unequivocal evidence. His
deportation is not barred by section 241(1).
The immigration judge denied the respondent's application for voluntary departure in the exercise of discretion. The immigration judge's
349

Interim Decision #2397
decision sets. forth the adverse factors present in the respondent's ease,
and our review of the record satisfies us that the immigration judge's
discretionary denial of voluntary departure was proper.
The decision of the immigration judge was correct.
ORDER: The appeal is dismissed.

350


Interim Decision #1497

MAT= OF WANG
In Visa Petition Proceedings
A-12567835
Decided by Acting Regional Commissioner July 19,'1985
Beneficiary, who possesses a master's degree in library science, is eligible for
first preference status under section 203(a) (1), Immigration and Nationality
Act, as amended, as assistant catalogue librarian in a university's internationally famous medical library since the position. duties for which her
services are requested are not subordinate but rather correspond in level of
responsibility to those of a senior librarian.

This case comes forward on appeal from the decision of the Acting
District Director, San Francisco, who on May 10, 1965, denied the
petition as follows:
The duties the beneficiary would perform as an Assistant Catalogue LibrarIA" (classify and catalogue medical books according to a modified Library of
Congress system; also work with circulation, reference, ordering and processing materials) are not complex and could be learned in a relatively short period of time. Therefore, the-duties of the position do not meet the criteria for
first preference classification.

• The petitioner, Stanford University, is a well-established instituof higher education.' It was established in, 1885, has over 6,000
employees and a student enrollment of over 10,000 from all parts of
the United States and -foreign countries.
The petitioner seeks the services of the beneficiary to serve in the
capacity of "Assistant Catalogue Librarian" in the Lane Medical
Library School of Medicine, a division of Stanford University. In
the petition the duties of the position are described as follows:
tion

Mrs. Wang will classify and catalogue medical books according to a moiLfied
Library of Congress system. She will also work with circulation, reference,
ordering and processing materials. Because the library is small (14 employees) she win have an opportunity to become familiar with the complete
library process, not just one department. She will have a wide variety of
experience over and above the specific department where her chief responsibility will lie.

282

Interim Decision #1497
The petitioner has stated that the duties to be performed by the
beneficiary require a person with a Master of Library Science Degree.
Beneficiary is a 26-year-old married female, a native and citizen of
China. She entered the United States on February 12, 1962, as a student and has been enrolled in the University of West Virginia, University of Oregon, and University of California at Berkeley in the
Graduate Division-devoted to studies in Library Science. She obtained a Master of Library Science Degree from the University of
California on September 6, 1963, which was followed by 18 months of
practical training in Library Science, 6 months at San Jose State College, San Jose, California, and 12 months at the School of Medicine
at Stanford University. Following completion of the training period
she continued her employment with petitioner as Assistant Catalogue
Librarian where she is still employed.
In the brief in support of the appeal petitioner has pointed out that
the beneficiary's responsibilities and duties are in reality -those of an
"Assistant Librarian" which should more properly be the title. of the
position for which petitioned and that the title "Assistant Librarian"
should not be confused with "Library Assistant." The Work Trait
Requirethents Handbook published by the United States Employ- ,
meat service:shows that to qualify for the position of "Library Assistant," Code 1-20.01, only 6 months to 1 year of specific vocational
preparation are required, but that for the position of "Librarian,"
Code 0-23.20, from 4 to 10 years of specific vocational preparation are
required.

On March 23, 1965, the United States Employment Service, Department of Libor, advised as follows: "A librarian. -must have successfully completeci5 years of college through which a master's degree
in library science was obtained. A petition for a librarian who does
not have the required formal education must be accompanied by a
clearance-order." The Dictionary of Occupational Titles, Volume 1,
defines the term "assistant" as "a general term applied to a worker
who assists another" and goes on to state "tha same classification
should be assigned. to the worker assisted except when the duties performed by the assistant are clearly subordinate to and different from
those of the worker assisted." Petitioner asserts that the duties of
beneficiary are not subordinate and that the work for which Mrs.
Wang is responsible would. correspond to the level of responsibility of
a "Librarian II" or "Senior Librarian." The Medical Library has
over 170,000 volumes, is internationally famous with demands for its
books coming from Libraries in all parts of the. United States and
foreign countries. The material is highly technical with rare serial
supplements from all over the world and in many languages. Peti283

Interim Decision #1497
tioner states that only a person with a Master of Library Science,
Degree can perform the duties of the position. It must be concluded
that the services of the beneficiary are urgently needed because of her
high education, technical training and specialized experience and that
the beneficiary is qualified to perform the duties of the position. The
appeal will be sustained.
ORDER: It is ordered that the decision of the District Director be
revoked.
it is further ordered that the appeal be.sustained and the petition
granted.

284


MATTER OF M

In DEPORTATION Proceedings
A-2902662
Decided by Board February 1, 1960

Crime involving moral turpitude—Conviction under 18 U.S.C. 88 (now 18 U.S.C.
371) of conspiracy to violate Internal Revenue Act involves moral turpitude
where object was to defraud U.S.—Fair hearing.
(1) Conviction under 18 U.S.C. 88 (now 18 U.S.C. 371) of conspiracy to violate the Internal Revenue laws involves moral turpitude when a composite
of all specifications in the indictment shows that the object of the conspiracy was to defraud the United States by avoiding taxes. (Matter of
G—, 7 I. & N. Dec. 114, distinguished.)
(2) That respondent was awaiting trial on a criminal indictment at the time
of the deportation proceeding did not preclude a fair hearing on the deportation charge relating to prior criminal convictions.
CHARGE :
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—Af ter entry
convicted of two crimes involving moral turpitude, to wit: Conspiracy to violate the Internal Revenue laws, 18 U.S.C. 88 (2
offenses).

BEFORE THE BOARD

Discussion: The respondent appeals from an order entered by
the special inquiry officer on August 10, 1959, directing his deportation as an alien who after entry has been convicted of two crimes
involving moral turpitude, not arising out of a single scheme of
criminal misconduct, to wit, conspiracy to violate the Internal.
Revenue laws. section 88, title 18, U.S.C. (two offenses). Exceptions are directed to matters of procedure and to the legal conclusion that after entry respondent has been convicted on two
separate occasions of crimes involving moral turpitude.
The respondent, a native and citizen of Italy, male, married, 59
years of age, last entered the United States through the port of
New York for permanent residence on July 4, 1922. He was convicted on December 29, 1938, in the United States District Court
for the Northern District of Indiana (Hammond Division) and
sentenced to 180 days' imprisonment on a "finding of guilty by
(the) court" of the offense charged in a single-count indictment,
nog

to wit : "Conspiracy to violate Internal Revenue Act, 8teu.n,...
Title 18, U.S.C., '* * sentenced on one count of indictment"
(Exh. 11).
Respondent on the 10th day of June, 1941, was again convicted in
the same court (South Bend Division) on a "plea of guilty" of the
offense charged in a single-count indictment, to wit: "Violation of
Internal Revenue Code, section 88, Title 18, * * Internal Revenue
Conspiracy" (Exh. 12). He was sentenced to imprisonment for
2 years:
The respondent during the hearing stated his name for the record, admitted that he was served with an order to show cause and
notice of hearing and thereafter upon advice of counsel stood mute,
claiming privilege under the Fifth Amendment to the Constitution
of the United States.' The evidence relied upon by the special
inquiry officer to establish deportability is found in a sworn statement taken from the respondent on April 27, 1959 (Exh. 4), and
identified by both the interrogating immigration officer and the
transcriber; the court records of the conspiracy convictions in 1938
and 1941 of a person by the same name as the respondent (Exhs. 11
and 12), and testimony of 4 witnesses who identified 6 fingerprint
records (Exhs. 15-20) as thosc of a person by the same name as
respondent who was served with an order to show cause in this
proceeding, served sentences in Federal institutions which coincide
with those imposed by the United States District Court as shown in
the court records entered as exhibits 11 and 12 and was fingerprinted
as an alien on September 23, 1940 (Exh. 18).
There are 30 assignments of error. They charge error in matters
of procedure and law. They will be grouped for discussion under
the following headings:
(1)
(2)
(3)
ment;
(4)
(5)

Abuse of the special inquiry officer's discretion;
Proceedings conducted in an atmosphere of prejudice;
Error in admitting the documentary evidence relied upon by the GovernThe quantum of proof ; and
The issue of deportability.

I. ABUSE OE DISCRETION

Error is assigned to the denial of two motions submitted by r ■
spondent's counsel during the course of the hearing. Counsel urg
that there existed no urgency in proceeding with the hearing at
the interests of the Government did not require dispatch. Conn:
also urges that the special inquiry officer erred in failing to tt
minate the hearing on the basis of his motion alleging that
1

Ites.pondent invoked the Fifth Amendment on some 86 occas1uii

hearing.

536

during

order to show cause fails to state a cause of action against the
respondent.
We find no abuse of discretion on the part of the special inquiry
officer in denying the motions. The order to show cause was served
upon the respondent on June 5, 1959. There were postponements
prior to the hearing of July 6, 1959. Counsel was retained by
the respondent on June 14, 1959. The fact that a criminal action
was pending against the respondent at the time of the hearing did
not, prejudice any rights guaranteed him under the Fifth and
Sixth Amendments to the Constitution of the United States. The
respondent, in defending a deportation charge based upon prior
criminal convictions, was in no danger of self-incrimination.
Counsel maintains that the special inquiry officer abused his discretion when he failed to grant a continuance and this action placed
the respondent in a position of waiving his right to apply for discretionary relief under the immigration laws. It is argued that
respondent was not in a, position to make the required showing of
good moral character during the deportation proceeding because
that, would amount to waiving his privilege against self-incrimination in the pending criminal case.
The respondent has the burden of establishing his eligibility for
discretionary relief (8 CFR 242.16(e)). An alien seeking a favorable exercise, of discretion cannot, limit, the area of the Attorney
General's inquiry by refusing to answer pertinent questions on the
ground that his answers may incriminate him. A full disclosure of
all pertinent information is inherent to an act of grace by the
sovereign. We find no abuse of discretion on the part of the special

inquiry officer in refusing to grant a continuance to permit the
termination of the criminal case then pending against the respondent,. Cf. Matter of Y , 7 I. & N. Dec. 697 Mar. 26,
1958). We agree with the special inquiry officer that a continuation
was not warranted under the circumstances.
Counsel urges that the special inquiry officer erred in denying
respondent's motion to terminate the proceedings on the ground
that the order to show cause did not specify offenses which are
crimes involving moral turpitude. Section 242(b) of the Immigration and Nationality Act (8 U.S.C. 1252(b)) provides, inter alia,
"the, alien shall be given notice, reasonable under all the circumstances, of the nature of the charges against him and of the time
and place at which the proceedings will be held."
The order to show cause served upon the respondent, informed
him that he was "subject to be taken into custody and deported
pursuant to the following provision of 'law:
Section 241(a) (4) of the Immigration and Nationality Act, in that you at
any

time
■

after entry have been convicted of two crimes involving moral fur-

5f 9:71R-R1-ftR

537

pitude not arising out of a single scheme of criminal misconduct, to wit, conspiracy to violate Internal Revenue Act, section 88, Title 18, U.S.C., two
offenses."

The order to show cause fully informed the respondent that his
deportation was sought because of convictions on December 29, 1938,
and June 10, 1941, for conspiracy to violate the Internal Revenue
laws (allegations 4 and 5 of Exh. 1). The respondent was also
informed that he was a native of Italy, who last entered the United
States through the port. of New York on July 4, 1922, and that he
would be accorded a hearing in the New Post Office Building at
Chicago, Illinois, on June 15, 1959, at 8 :30 A.M. (Exh. 1).
Counsel concedes that in an immigration proceeding "we are not
held to the strictness that is required in indictment (criminal)
proceedings " It has been held that an indictment charging conspiracy to unlawfully engage in the liquor business and to conceal
whiskey with intent to defraud the Government of the tax thereon
is not deficient because it did not allege the particular laws the
defendants conspired to violate (Seh,efam v. United States, 84
F.2d 513 (C.C.A. 5, 1930) ).
We are of the opinion that respondent was given reasonable
notice of the nature of the charge against him (section 242(b),
supra). The factual statements relative to his 2 convictions of conspiracy to violate the Internal Revenue laws were of sufficient clarity
to enable him to procure witnesses and make a proper defense
thereto. Since the doctrine of res adjudieata has no application to
an administrative proceeding, the Immigration Service is not held
to the strict requirement which prevails in criminal proceedings, to
wit, that the indictment charge the essential facts so specifically
that the judgment rendered will be a complete defense to a second
prosecution for the same offense. Cf. Matter of K—, 3 I. & N.
Dec. 575, 577; Pearson v. Williams, 202 U.S. 281, 284 (May 14,
1906).
II. PROCEEDINGS CONDUCTED IN AN ATMOSPHERE OF PREJUDICE

Counsel urges that the special inquiry officer was prejudiced
against the respondent by reason of the voluminous and inflamma-

tory publicity resulting from his appearance before an investigating committee of the United States Senate during June of 1959.
It is also alleged that the special inquiry officer allowed the examining officer to examine the respondent in an inflammatory, redundant and illegal manner to the further stimulation of adverse
publicity and in derogation of the respondent's right to a hearing
in a dispassionate and judicial atmosphere.
We find no merit to the charge that the special inquiry officer
and the examining officer conducted the proceeding in an atmosphere
538

of obvious prejudice against the respondent. The fact that respondent was awaiting trial on an indictment charging bribery of
an Indiana State officer at the time of this proceeding does not
preclude a fair hearing to the respondent in an immigration proceeding. We find no evidence of record that the special inquiry
officer and the examining officer were influenced by this factor. Cf.
Matter of 41—, 5 I. & N. Dee. 261, 262 (ITA., June 1, 1953).
III. ERROR IN ADMITTING THE DOCUMENTARY EVIDENCE

Counsel maintains that the special inquiry officer erred in admitting the documentary evidence relied upon by the Government
to sustain the charge that respondent is deportable as a twice. convicted alien. She urges that since respondent elected to stand mute
during the hearing the documentary evidence violated his privilege
against self-incrimination. She also urges that the fingerprint charts
(Exhs. 15 through 20) were not properly qualified and that one
of them (Exh. 17) had been obtained in violation of the respondent's rights under the Fourth and Fifth Amendments to the Constitution.
It is settled law that deportation proceedings are civil in nature
and not criminal (Carlson v. Landon, 342 U.S. 524 (1952)). Administrative tribunals are not bound by the rules of evidence present in judicial proceedings except those perpetuated in governing
regulations. Schaeps v. Carmichael, 177 F.2d 391, 395 (C.C.A. 9,
1949) ; United, States en rel. Inya.stato v. O'Rourke, 211 F.2d 609
(C.C.A. 8, 1954), and cases cited.
The protection afforded the respondent by the Fourth and Fifth
Amendments has not been violated by the introduction of the documentary evidence relied upon by the Government. There is no
evidence before us that any of the documents were obtained by an
"unreasonable search and seizure" in violation of the Fourth Amendment. The privilege against self-incrimination guaranteed by the
Fifth Amendment does not extend to the use of fingerprint records
when they serve as a basis for identification (United States v. Kelly,
55 F.2d 67 (C.C.A. 2, 1932) ; Bolt v. United States, 218 U.S. 245,
252). We find on this record that the hearing was conducted in
accordance with the prescribed regulations (8 CFR 242) and that

the introduction of the documentary evidence here under consideration does not constitute a violation of the protection guaranteed
the respondent by the Fourth and Fifth Amendments.
IV. THE QUANTUM OF PROOF

We next turn to the issue of whether as a matter of law the
respondent is deportable on the charge that after entry he has been
convicted of 2 crimes involving moral turpitude not arising out of
a single scheme of criminal misconduct. Counsel maintains that
539

the Government has failed in its proof against respondent in that
there is insufficient evidence to identify him as a co-conspirator in
either of the 2 criminal offenses which serve as a basis for the finding of deportability.
We have carefully studied the evidence in its entirety and are
satisfied that the testimony of the Government witnesses adequately establishes that the respondent in this proceeding is identical with the person whose fingerprint records were introduced in
evidence as exhibits 15 through 20. The documentary evidence,
together with the identifying testimony of the witnesses, is in our
judgment sufficient to support the special inquiry officer's conclusion that the respondent, as a co-conspirator, was convicted of the
2 offenses described in the judgments of conviction entered as exhibits 11 and 12. The conclusion of the special inquiry officer is
supported by rulings of the Supreme Court to the effect that where
there is a duty to speak an inference may be drawn from the refusal of an alien to te=tify on his own behalf in a deportation proceeding and such an inference is evidence. United States ex rel.
Bilolcumsky v. Tod, 263 TJ.S. 149, 153 (1923) ; Hywn, v. Landon,
219 F.2d 404, 409 (C.C.A. 9, 1955), aff'd 350 U.S. 816; cf. Matter
of V
, 7 I. & N. Dec. 308 (15.I.A., 1956).
V. THE ISSUE OF DEPORTABFLITY

A preponderance of substantial and probative evidence establishes
that the respondent subsequent to entry has been convicted on 2
occasions for conspiracies to violate the Internal Revenue laws of
the United States (Exhs. 11 and 12). There is no dispute relative
to the finding that the offenses did not arise out of a single scheme
of criminal misconduct. Counsel, however, does except to the special inquiry officer's conclusion that the respondent has been convicted of 2 conspiracies which involve moral turpitude.
Counsel contends that as a matter of law the respondent has not
been convicted of 2 separate offenses which involve moral turpitude,
because the records of conviction charge conspiracy to violate the
Internal Revenue laws by the commission of several described substantive offenses and since some of the substantive. offenses charged
in the indictments do not involve moral turpitude, the lowest grade
of the substantive offense necessary to sustain the conspiracy conviction is the one which must be imputed to the conviction record
as a whole. Counsel also urges error on the part of the special
inquiry officer in relying on the Supreme Court's decision in the case
of Jordan v. DeGeorge, 341 U.S. 223 (1951), as controlling in the
instant case. Counsel maintains that the decision in the DeGeorge
case (supra), is not the law of the case in this proceeding, even if it
is proven that the respondent was one of the co-conspirators con540

victed with DeGeorge as shown by the record of conviction entered
as exhibit 12.
We agree with counsel that the Supreme Court's decision with
respect to the alien DeGeorge does not establish the law of the case
in the instant proceeding. However, it is not an error of law on
the part of the special inquiry officer to state in his decision that
the conclusion reached by the Supreme Court in the DeGeorge case
(supra), to wit, "that the crime of conspiracy to defraud the United
States is a crime involving moral turpitude" is applicable in the
instant case. (See p. 7 of the special inquiry officer's opinion.)
As a matter of law, a conspiracy to commit an offense involves
moral turpitude only when the offense which is the object of the
conspiracy involves moral turpitude (r 7-7-, ited States ex rel. Berlandi
v. Reimer, 30 F. Supp. 767 (S.D.N.Y., 1939); Mercer v. Lence,
96 F.2d 122 (C.C.A. 10, 1938), cert. den. 305 U.S. 611). The
respondent was charged in the 1938 single-count indictment substantially as follows: That from about October 7, 1937, until the
fall of 1938, the defendants conspired together and with other persons unknown to violate the Internal Revenue laws:
(1) By unlawfully, knowlingly and willfully defrauding the United States
of tax on distilled spirits. 2
(2) By carrying on the business of a retail and wholesale liquor dealer in
such periods without having paid the special tax required by law. 3
(3) By removing and aiding in the removal of distilled spirits on which the
United States Internal Revenue tax had not been paid to a place not a distillery warehouse or a bonded warehouse as required by law. 4
(4) By concealing and aiding in the concealment of spirits so removed
( 4, .supra).
(5) By possessing 120 gallons of alcohol and other quantities of distilled
spirits which did not hear tax stamps. 6
(6) By carrying on a business of a distillery without the required statutory
bond .6
(7) By making mash for distillation or for production of spirits in an unauthorized distillery."

The grand jury enumerated 9 overt acts committed by the defendants in furtherance of the conspiracy. The respondent pleaded
guilty and was sentenced to 180 days' imprisonment.
=Sections 2833(a) and 2800(f) of the 1989 Internal Re ■ enue Code define

this specification, the pertinent portions of which are set forth in Appendix A.
3 Section 3253 of the 1939 Internal Revenue Code defines this specification,
the pertinent parts of which are set forth in Appendix A.
4 Sections 2913 and 3321(a) of the 1939 Internal Revenue Code define this
specification (see Appendix A).
5 Sections 3320(a) and 2803(a) of the 1939 Internal Revenue Code define
this specification (see Appendix A).
This offense is described in toe penalty provision of section 2833(a) of the
1939 Internal Revenue Code (see Appendix A).
'Section 2809(a) of the 1939 Internal Revenue Code defines this specification
(see Appendix A).

541

The December 1939 single-count indictment (Exh. 12) charged
that from July 15, 1939, to the time of the indictment the respondent conspired with others to violate the Internal Revenue laws of
the United States:
(1) By willfully defrauding fhe -United States of tax on distilled spirits
(2, supra).

(2) By carrying on the business of a retail and wholesale liquor dealer in
distilled spirits without having paid the special tax required by law ( 3, supra).
(3) By removing and aiding in the removal of distilled spirits on which
the Internal Revenue tax had not been paid to a place- other than a distillery or bonded wherehouse as required by law (4, supra).
(4) By concealing and aiding in the concealment of such removed spirits
( 4 , supra).
(5) By carrying on the business of a distiller without the required statutor: bond ( 6, supra).
(6) By setting up an unregistered sti11. 3
(7) By making mash for distillation or for the production of distilled spirits ou premises not duly authorized as a distillery ( 7 , s'aPta).
(8) By possessing and transporting distilled spirits (4,675 gallons of alcohol and other quantities of distilled spirits), which were not stamped to denote the quantity contained therein or evidence of payment of Internal Revenue taxes ( 5, supra).

overt acts committed by the deThe grand jury enumerated
fendants in furtherance of this conspiracy. The respondent was convicted and sentenced to imprisonment for 2 years.
The respondent was convicted under section 88 of Title 13, United
States Code, for two conspiracies to violate the Internal Revenue
laws of the United. States. Section SS of Title 18, U.S.C., 9 creates

2 crimes: (1) conspiracy to commit an offense against the United
States, and (2) conspiracy to defraud the United States in any
manner or for any purpose. 10
The Internal Revenue., statutes have broken down the various steps
and phases of a continuous illicit distilling and distributing business and made each of them separate offenses. Some of the offenses
defined by the revenue statutes involve moral turpitude and some
do not (to, ,supra). Both indictments in the instant case charge the
respondent with conspiracies "to violate the Internal Revenue laws
of the United States by the commission of various offenses against
the United States of America" (Exits. 11 and 12).
The particular revenue statutes the respondent conspired to violate are not designated but the specifications of both indictments
when considered in their entirety describe a large scale operation
of distilling, possessing, concealing, transporting distilled spirits on
Section 2810 of the 1939 Internal Revenue Code defines this specification
(see Appendix A).
9 Section 88 of Title 18, U.S.C., is set forth in Appendix B.
'0111-alter of G—, 7 1. & N. Dec. 114 (B.I.A., Feb. 9, 1956).

542

which the United States 1:evenue tax had not been paid and carrying on the bUsiness of retail and wholesale. liquor dealer without
having paid the required revenue tax. The specifications also
charge the respondent with conspiring to "unlawfully, knowingly
and willfully defraud the United States of tax on distilled spirits." 11
The issue narrows to a determination of whether the conspiracies
here under consideration have as their objective the commission of
several offenses against the United States or do they by their very
nature have as their objective "to defraud the United States in any
manner or for any purpose." It is well settled that in an indictment for conspiring to commit several offenses (where the conspiracy is the gist of the crime charged) it is not necessary to allege
with technical precision all the elements essential to the commission
of the offenses which are the object of the conspiracy.' 2 Furthermore, the object of the conspiracy need not be stated with the detail
required in an indictment for committing the substantive offense
( 12, supra). Certainty as to a common intent, sufficient to identify
the object of the conspiracy, is all that is necessary (127 supra).
The separate offenses which comprise the conspiracies here wider
consideration are primarily revenue statutes and were enacted by
Congress to prevent one who comes within their terms from defrauding the Government out of the tax levied upon the product
which they manufacture and distribute.13
The character and effect of a conspiracy is not to be judged by
dismembering it and viewing its separate parts, but only by looking
at it as a whole. 14 This is precisely what the Supreme Court did
in the case of Jordan v. DeGearge,15 because in that case referring
to the December 1939 indictment the court said, "Less than a year
later, he (DeGeorge) returned to his former activities and in December 1939, he was indicted again with eight other defendants for
violating the same federal statutes (1937 indictment) * * lie
(DeGeorge) was charged with conspiring to 'unlawfully, knowingly
and willfully defraud the United States of tax on distilled spirits'."
This language is significant because the Supreme Court was referring to the same indictment that we have under consideration (Exh.
12). The language used by the Supreme Court also means that the

"same federal statutes" (substantive offenses) are involved in the
conspiracy described in exhibit 11.
See Appendix A for the several statutes defining the substantive offenses
charged.
12 Wong Tel T. United States, 273 U.S. 77, 81 (1927) ; Thornton v. United
States, 271 U.S. 414, 423 (1926) ; Williamson v. United States, 207 U.S. 425,
441 (1005).
13 Fortson, v. United States, 20 F.26 127, 129 (C.C.A. 8. 1927) ; Gant v. Bottling Co., 29 S.E. 2d 488. 490 (Sup. Ct. So. Car., 1944).
1 United States T. Patten, 220 U.S. 525, 544 (1913).
35 341 U.S. 223, 224, 225 (1951).

543

The Supreme Court noted that DeGeorge was a large-scale violator engaged in a sizeable business. They referred to the fact that
the December 1939 indictment alone charged DeGeorge with processing 4,675 gallons of alcohol and an undetermined quantity of distilled spirits. The court said, "At the rate of $2.25 a gallon then
in effect, the tax on the alcohol alone would have been over $10,000"
(see note 5 at 341 U.S. 225).
The respondent herein is charged with possessing a total of
4,795 gallons of alcohol and an undetermined amount of distilled
spirits in the 2 indictments returned against him in 1933 and 1039
(Exhs. 11 and 12). Under the circumstances we consider the respondent herein a large-scale operator engaged in a sizeable business of distilling, transporting, concealing and selling alcohol and
distilled spirits. The tax on the total amount of alcohol at the rate
of $2.25 per gallon amounts to approximately $10,789.
The purpose of section 88 of Title 18, U.S.C. (now section 371 of
Title 18), (a, supra) is to protect the Government of the United
States from imposition through conspiracy to cheat and defraud
in respect of its rights, privileges, operations and functions, as well
as in respect to property such as taxes levied under the revenue
laws." The Supreme Court said in the DeGeorge case (supra),
"Fraud is the touchstone by which, th,le case should be judged."
We can find no distinguishing features in the case before us which
would permit a. different judgment on our part. There is no doubt
in our mind that the character and effect of the several offenses set
forth in the indictments here under ennsider9tinn charge conspiracies to defraud the United States Government. by violation of its
revenue laws. 17
Counsel urges that in the DeGeorge case (supra) the Supreme
Court had before it a stipulation that the alien was convicted of
conspiracies which included the element of an intent to evade the
payment of taxes and that since there was no comparable stipulation in the instant case, then DeGeorge is not controlling insofar
as the respondent is concerned. There is no evidence of record to
support counsel's allegation with regard to the stipulated premise
in the DeGeorge case. It is crystal clear, however, from a reading
of the Supreme Court's decision in the DeGeorge case (supra) that
the Court fully considered the substantive offenses which were the
object, of the conspiracies. Referring to DeGeorge's 1937 indict"Cf. United States v. Keitel, 211 U.S. 370, 303 (1908) ; FTeald v. United
States, 175 F.2d 878, 880 (C.C.A. 10, 1949) ; United States v. Weinberg, 129
F. Supp. 514, 523, 521 1-) C Pa , 1955), a it'd 226 F.2d 161. 167 (C.C.A. 3,
1955).
n It was said in the case of Fields v. United States, 221 Fed. 242, 245
(C.C.A. 4, 1915), cert. den. 238 U.S. 640, that "fraud upon the Government by
violation of its revenue laws is a crime involving moral turpitude."

511

meat, the Court. said, "*
* Respondent was indicated under 18
U.S.C. 85 for conspiring with seven other defendants to violate 12
sections of the Inf Hun] Revenue Code. The indictment specifically
charged him (DeG Gorge) with possessing whistiey and alcohol with
intent to sell it, in fraud of law and evade. the tax thereon'. He was
further accused of removing and concealing liquor 'with intent to
defraud the United States of the tax thereon'." Referring to the
December 1939 indictment the Court said, "Ho was charged with
conspiring to 'unlawfully, knowingly, and willfully defraud the
United States of tax on distilled spirits' " (supra 15 at p. 224). The
argument that an intent to defraud was stipulated in the DeGeorge
case finds no support, in the Supreme Court's decision.
It may be argued that. our decision in the instant, case. is not
supported by the conclusion reached in Matter of G
I. & N.
Dec. 114 (B.I.A., Feb. 9, 1956). We find the two cases distinguishable. The indictment, in the G
case charged in 5 counts, 4 separate violations of the Internal Revenue laws. The fifth count
charged a conspiracy to violate the same substantive offenses set
forth in the first 4 counts. G
was convicted on all five counts.
Moral turpitude was not, an element of the, offenses set, forth in
the first 4 counts. It, was clear from a reading of the fifth count
that G— was indicted for conspiring with others "to commit
offenses against the United States." We reasoned that if the substantive offenses set, forth in the first 4 counts did not involve moral
turpitude the fact that the alien conspired with others to commit.
the same offenses would not, per se, render them turpitudinous.
Here we are confronted with an entirely different situation. The
respondent was not - indicted for violations of substantive offenses
defined by the Internal Revenue laws. The two indictments with
which we are concerned represent two conspiracies, charged in single
counts and committed on two separate occasions. The several specifications set, out. in both indictments do not. in each .instance employ the technical language of the statutes involved. They do not
in every instance fully specify each and every element of the substantive offense described in the statutes 18 concerned. However, a
composite of all the specifications permit of only one construction,
namely, that each indictment charges a conspiracy to defraud the
United States Government by avoiding taxes levied under the Internal Revenue laws. We had in mind the precise situation presented by the instant case when we said in Matter of G , supra,
that "it is hard to conceive of a situation where two or more individuals conspire with each other to 'fail to pay taxes imposed by
law on said distilled spirits' and not have an intent to evade said
taxes."
18

See Appendix A for the statutes involved.

545

There is no application for discretionary relief before us. The
findings of fact and conclusion of law entered by the special inquiry officer on August 10, 1959, are hereby affirmed. An appropriate order will be entered.
Order : It is directed that the appeal be and the same is hereby
dismissed.
APPENDIX "A"

Section 2833(a), Internal Revenue Code of 1939—Distilling without
giving bond.

Any person who shall carry on the business of a distiller without
having given bond as required by law, or who shall engage in or
carry on the business of a distiller with intent to defraud the
United States of the tax on the spirits distilled by him, or any
part thereof, shall, for every such offense, be fined not less than
$100 nor more than $5,000 and imprisoned for not less than thirty
days nor more than two years. * * *
Section 2806(f), Internal Revenue Code of 1939—Tax fraud by
Distiller.

Whenever any person engaged in carrying on the business of a
distiller defrauds or attempts to defraud the United States of the
tax on the spirits distilled by him, or of any part thereof, he
* * *. [The penalty provides for forfeiture a fine of not less than
$500 nor more than $5.000 and imprisonment for not less than six
months nor more than three years.]
Section, 3253, Internal Revenue Code of 1.939—Penalties and f
feiture<3 for nonpayment of special tax.

Any person who shall carry on the business of * * * wholesale
liquor dealer, retail liquor dealer, wholesale dealer in malt liquors,
retail dealer in malt liquors, or manufacture of stills, and will
fully fails to pay the special tax as required by law, shall, for every
such offense, be fined not less than $100 nor more than $5,000 and
be imprisoned for not less than thirty days nor more than two
*
years. *
Section 3321(a), Internal Revenue Code of 1939—Removal or concealment with intent to defraud the revenue.

Every person who removes, deposits, or conceals, or is concerned
in removing, depositing, or concealing any goods or commodities
for or in respect whereof any tax is or shall be imposed, with intent
to defraud the United States of such tax or any part thereof, shall
be liable to a fine of not more than $5,000 or be imprisoned for
not more than three years, or both.
546

Section 2913, internal Revenue Code of 1039—Penalty for unlawful
removal or concealment of spirits.

Whenever any person removes, or aids or abets in the removal of,
any distilled spirits on which the tax has riot been paid, to a
place other than the Internal Revenue bonded warehouse provided
he law, or conceals or aids in the concealment of any spirits so
removed, or removes, or aids or abets in the removal of, any distilled spirits from any such warehouse authorized by law, in any
manner other than is provided by law, or conceals or aids in the
concealment of any spirits so removed, he shall be liable to a
penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than WO nor more
than $5,000, and imprisoned not less than three months nor more
than three years.
Section 3320(a), Internal Revenue Code of 1939—Possession with
intent to sell in fraud of law or to evade taw.

Every person who shall have in his custody or possession any
goods, wares, merchandise, articles, or objects on which taxes are
imposed by law, for the purpose of selling the same in fraud of the
Internal Revnue laws, or with design to avoid payment of the taxes
imposed thereon, shall be liable to a penalty of $500 or not less
than double the amount of taxes fraudulently attempted to be evaded.
Section 2803(a), Internal Revenue Code of 1039—Stamps for containers of distilled spirits.

No person shall transport, possess, buy, sell, or transfer any distilled spirits, unless the immediate container thereof has affixed
thereto a stamp denoting the quantity of distilled spirits contained
therein and evidencing payment of all Internal Revenue taxes imposed on such spirits. * *
Section 2809(a), Internal Revenue Code of 1939—Definitions.

Every person who produces distilled spirits, or who brews or
makes mash, wort, or wash, fit for distillation or for the production
of spirits, or who, by any process of evaporation, separates alcoholic spirit from any fermented substance, or who, making or keeping mash, wort, or wash, has also in his possession or use a still,
shall be regarded as a distiller.
Section 2810, Internal Revenue Code of 1939—Registry of stills.

Every person having in his possession or custody, or under his
control, any still or distilling apparatus set up, shall register the
same with the collector of the district in which it is, by subscribing and filing with him duplicate statements, in writing, setting
forth the particular place where such still or distilling apparatus
is set up, the kind of still and its cubic contents, the owner thereof,
547

his place of residence, and the purpose for which said still or
distilling apparatus has been or is intended to be used; one of
which statements shall be retained and preserved by the collector,
and the other transmitted by him to the Commissioner. Stills and
distilling apparatus shall be registered immediately upon their being set up.
*
*
And every person having in his possession or custody, or under
his control, any still or distilling apparatus set. up which is not
so registered, shall pay a penally of $500, and shall be fined not
less than $100, nor more than $1,000, and imprisoned for not less
than one month, nor more than two years. * *
APPENDIX "B"

Section 88, Title 18, U.S.C. (now section 371 of Title 18)—Conspiracy to commit offense against United States.

If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States in any
manner or for any purpose, and one or more of such parties do any
act to effect the object of the cor. ,piracy, each of the parties to such
conspiracy shall be fined not more than $10,000, or imprisoned not
more than two years, or both.

548


MATTER OF PAWA. PLANE No. 715
In FINE Proceedings
HMV-10/21.1 & 10/24.3
Decided by Board June 22, 1960
Piz --Section 231 of 1952 act—Opportunity for correction not required where
history of errors and warnings exists.
Carrier which has repeatedly submitted incorrect Forms 1-94 and has been
warned about further errors incurs liability for fine under section 231 of
1952 act because of clerical errors in its manifests even without an opportunity for correction, withheld because of resultant delay in inspection.
(Cf. Matter of PAWA Plane No. 774, 7 I. & N. Dec. 403.)
IN an: PAWA Plane No. 715, "Flight 852/19," which arrived at Honolulu
from foreign on October 19, 1959-12 passengers involved; PAWA
Plane "Flight 852/26," which arrived at Honolulu from foreign on
October 25, 1959-15 alien passengers involved.
BASIS FOE FIINE

:

Act of 1952—Section 231 [8 U.S.C. 1221] and 8 CFR 231.1.
BEFORE THE BOARD

Discussion: These appeals are directed to administrative penalties totaling $270 ($10 as to each passenger involved), which the
District Director at Honolulu has ordered imposed on this carrier
for failure to present properly executed Forms 1-94 as a part of the
arrival manifests submitted as to them. Specifically, it is charged
that the Forms 1-94 were deficient in that the passengers' names
were incompletely or incorrectly reported; their addresses in the
United States were not shown; information as to the issuance of
their visas was omitted; or the forms were not legible.
The carrier does not dispute the fact that the Forms 1 94 presented were not properly executed. It states that one of its employees was assigned in the immigration clearance area to screen
these forms for each of these flights. It contends that in connection with the arrival of each of these aircraft said employees aver
that they were not notified of deficiencies during the examination
of the passengers. Tinder such circumstances, it claims that no fines
lie on the authority of an unreported decision of this Board (F-0300/
7725, August 14. 1956) wherein we held that where the errors involved in the Forms 1-94 were minor, of a clerical nature, inadver-

,694

tent, and not made with the intent to violate the immigration laws
of the United States, the provisions of paragraphs 11.3 and 11.4 of
Annex 9, International Civil Aviation Convention, governed and
that a fine could not be imposed unless the carrier had first been
given an opportunity to correct the errors.
The district director states that Service officers, as a matter of
practice, have been instructed to call such deficiencies as existed here
to the attention of the carrier's representatives and to give them an
opportunity to correct the errors, and that this practice was followed
in this instance. He asserts that the carrier's available representatives were unable to make the corrections without abnormal and
undue delay of immigration inspection. He sets forth that as recently as August 11, 1959, he formally notified this carrier in writing of numerous deficiencies and mistakes in the presentation of
the Forms 1-94 the carrier was presenting for its passengers and
advised the carrier that repeated errors of this nature would result
in the imposition of penalties. Under such circumstances, he held
that liability to fine had been incurred on the authority of a prior
precedent decision of this Board involving the same carrier (Matter
of PAW A Plane No. 774, 7 I. & N. Dec. 403). In doing so, he
properly distinguished this case from the one relied on by the carrier wherein (1) no opportunity was given for the correction of
minor clerical and inadvertent errors; (2) there was no history of
such errors; and (3) delay of inspection would not have resulted
had the carrier been given an opportunity to correct the errors.
Upon careful consideration of the entire evidence, together with
the representations throughout, we are of the opinion that the district director has properly ordered the penalties imposed in these
cases for the reasons and on the authority stated in his opinion.
Briefly, a carrier which has repeatedly submitted incorrect manifests and has been warned about further errors is subject to a fine
for clerical errors in its manifests, even without the opportunity for
correction. In such a situation the United States implementation to
paragraphs 11.3 and 11.4 of Annex 9 to the Convention on International Civil Aviation, is controlling on the question of liability
(7 I. & N. Dec. 403, .supra). While that decision involves a different section of the law (section 251 of the Immigration and Nationality Act; 8 U.S.C. 1281), the reasoning thereof is equally applicable here.
Order: It is ordered that the appeals be and the same are hereby
dismissed.

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