Interim Decision #2108

MATTER OF IREGBULEM
In Section 212(e) Proceedings
A-14658134
Decided by Regional Commissioner December 1, 1971

Applicant is denied a waiver of the foreign residence requirement of section
212(e) of the Immigration and Nationality Act for failure to establish, as
claimed, that if she returned to Nigeria, the country of her nationality
and last foreign residence, she would be subject to persecution because of
her political activity in the United States on behalf of the Biafran cause
during the recent civil war in that country, since ‘a review of State De-
partment reports and those of other independent sources, including the
press, indicates there is no evidence of government persecution of former
supporters of the Biafra regime.

On Benatr or Applicant: James N. Penrod, Esquire
556 Commercial Street
San Francisco, California 94111

This case comes before the Regional Commissioner on appeal
from the decision of the District Director, San Francisco, who de-
nied the application on September 20, 1971, in that the applicant
had failed to establish that she would be subject to persecution
within the meaning of section 212(e) of the Immigration and Na-
tionality Act, as amended, if she returned to Nigeria, the country
of her nationality and last foreign residence.

The applicant is a 29-year-old single female, a citizen of Ni-
geria, born in Port Harcourt (Biafra) of the Ibo tribe. She was
admitted to the United States on August 9, 1964, as an exchange
alien under section 101 (a) (15) (J) of the Act sponsored by A.I.D.
under exchange programs G-II-100 and P-I-577 for study and
research towards advanced degrees. She studied at the University
of Arizona in Tucson and Ohio State University achieving a
Bachelor of Arts and Master’s degree in nutrition and home eco-
nomics.

Her last extension of stay expired March 1969. Since January
1970 she has been employed as a nutritionist at Mount Zion Hos-
pital and Medical Center in San Francisco, California, where she

805
Interim Decision #2108

now lives. She is the beneficiary of an approved visa petition as a
member of the professions as a nutritionist, but since her admis-
sion as an exchange alien under programs sponsored by A.L.D.
wag financed by a government agency, she is subject to the two-
year foreign residence requirement of section 212(e) of the Act.

She desires to remain permanently in the United States and on
June 22, 1971, filed an application for waiver of the two-year for-
eign residence requirement alleging that if she returned to
Biafra, Nigeria, she would be subject ‘to persecution because of
her political activity in the United States in behalf of the Biafran
cause during the recent civil war in Nigeria.

Section 212(e), in pertient part, states that upon the favor-
able recommendation of the Secretary of State, pursuant to the re-
quest of the Commissioner of Immigration and Naturalization,
after he has determined that the alien cannot return to the coun-
try of his nationality or last residence because he would be sub-
ject to persecution on account of race, religion, or political opin-
ion, the Attorney General may waive the requirement of such
two-year foreign residence abroad in the case of an alien whose
admission to the United States is found by the Attorney General
to be in the public interest.

She alleges that while in school she participated in fund-raising
campaigns in behalf of Biafra and spoke to church groups and
school groups and appeared on television in behalf of the Biafran
cause. She alleges that these activities are known to the present
government in control of Nigeria and that if she returns she will
be subject to persecution in that, as an Ibo who supported the
Biafran revolt, she may be jailed as other Biafran supporters
have been, she will be unable to obtain employment, will be de-
nied medical aid, be not permitted to live in any large city, and
forced to live in the “bush.” She also alleges that the bank ac-
counts of all Ibos have been frozen and that Ibos are forced to
live in poverty. In support of these allegations, she has presented
letters from relatives and friends claiming to have a knowledge
of conditions in Nigeria.

The civil war in Nigeria ended in January 1970 and Biafra is
again within the folds of the recognized Nigerian government.
The State Department has advised that “In January, 1970, at the
conclusion of the war, the Federal Military Government declared
a general amnesty, invited Nigerians living abroad to return, and
announced a policy of reconciliation and reintegration of Nigeri-
ans (mostly Ibos) who had supported the secession. This policy
has the support of the State Governments as well. There has been

806
Interim Decision #2108

no evidence of mass arrests, trials, imprisonments, or executions;
and there is ample evidence that the Federal Military Govern-
ment is sincerely interested in bringing about successfully and eq-
uitably the reintegration of the Ibos. It is true that in certain
parts of the country, particularly the South-Eastern and Rivers
States, elements of the local population have in various ways
made difficulties for Ibos or discouraged their return, but this
trend is diminishing with the passage of time and is not unusual
in a context of tribal antagonism and in the aftermath of a par-
ticularly bitter civil war. Since the end of the fighting, thousands
of Ibos have traveled from their homeland to other parts of Ni-
geria. Former ‘Biafra’ officials and other Ibos, including some
from this country, have traveled without hindrance between Ni-
geria and the United States. Thousands of Ibo police and some
military personnel and former government officials have been
reintegrated into their respective services. An Ibo now sits as
Commissioner on the Federal Executive Council; the Ibo Admin-
jstrator of the East-Central State has been appointed to the Su-
preme Military Council. These are the highest governing bodies
of Nigeria..... Nigeria faces an immense task of reconstruction.
The effort requires the talents of those Nigerians who studied in _
the United States during the war. The Federal Military Govern-
ment has urged those who remained abroad during hostilities to
return to Nigeria in order to assist in the task of rebuilding and
development which lies ahead. We feel that Nigerians who have
completed their programs of study in the United States should re-
turn home.”

The Nigerian Embassy, Washington, D.C., in its “Aide Mem-
oire” of May 7, 1970, publicly announced its assurance of “Full
rights and privileges for all Nigerian citizens, without discrimi-
nation, including the population in the areas formerly under rebel
control, and those who supported the rebeJlion;” and states
“From the time the civil war ended, therefore, no Nigerian
abroad or at home had any further justification for perpetuating
the conditions of the period of the civil war, or for claiming spe-
cial treatment abroad on the grounds of a possible fear of disabil-
ity or maltreatment in his country.” and “All Nigerians who have
acquired skills and useful training are urgently needed by their
country in the current task of reconstruction and development at
this most fateful period of the country’s history. The Federal
Government of Nigeria, and the Governments of the 12 states in
the Federation, have repeatedly declared their genuine and ur-
gent desire to welcome back all N igerians abroad, including those

807
Interim Decision #2108

who previously supported the secession. Major-General Yakubu
Gowon, Head of the Federal Military Government and Command-
er-in-Chief of Nigerian Armed Forces, has publicly and repeat-
edly called on all Nigerians abroad, especially those who have ac-
quired training and expertise in various fields, to come home and
participate in the current efforts of rebuilding the nation.”

The State Department advised that there is no evidence that
the hardships and sufferings of applicant’s family and the Ibo
people are the result of a deliberate Nigerian government policy.
They are rather the consequence of the secession, blockade, and
the military conflict that moved across much of the southeastern
part of Nigeria during the Biafran revolt. The suffering caused
by the civil war is not limited to the Ibo’s. Ethnic groups from
both sides, Nigerian and Biafran, were caught up in the strife
and suffered deprivation, financial ruin and various degrees of
starvation.

The State Department reports and those of other independent
sources, including the press, contain no evidence of government
persecution of former supporters of the Biafra regime. There
have been no mass arrests, no war crimes trials, no executions.
There have been no verified reports that Nigerians on returning
to Nigeria have been jailed or persecuted because they supported
the Biafran regime during the civil war.

It is true that the bank accounts of the former secessionist area
had been frozen but in January 1971 all bank accounts in the for-
mer secessionist area were unfrozen, the only limitation being
that those accounts showing a net increase during the war were
limited to the level at which they had been on the date of seces-
sion. This was consistent with the Nigerian government’s earlier
decision not to exchange Biafran currency for Nigerian pounds
primarily because the Biafran currency had been badly inflated.

Medicinal supplies are erratic, scarce, and even nonexistent in
many parts of Nigeria, not alone in the East-Central State. It is
quite possible that supplies in the former secessionist area have
not yet been restored to prewar levels but there is no government
policy of denying drugs and medicines to the people.

The applicant’s allegation that the Nigerian government is de-
liberately keeping the Ibo people in a state of poverty is not sup-
ported. The suffering of the Ibo people is largely the result of the
ruin and destruction of war. The Nigerian Government is trying
to complete the reconstruction of the area, get the economy going,
and move onto new development. A lot of progress has been
made in the past twelve months and much remains to be done.
Interim Decision #2108

Complete recovery from the adverse effects of the war cannot be
expected to be completed in a short time.

While it is true that the applicant may not be able to command
the same salary as she does in the United States, consideration
must be given to the fact that Nigeria is still an underdeveloped
country where the per capita income is less than $100.00 a year
and the standard of living is not on a-par with United States
standards. Ibos are not restricted in the East-Central or Biafra
area. They are moving in jnereasing numbers to other parts of
Nigeria, even though they may be less welcome in the Port Har-
court area where, before the civil war, Ibos were predominant
and the minority groups in that area were not supporters of the
secession. The applicant should consider the fact that she will be
able to make a greater contribution to the future development of
Nigeria by practicing her profession as a nutritionist in her
homeland than by staying in the United States. After all, she
originally came to the United States’as an exchange alien for the
purpose of gaining knowledge which she could later use for the
betterment of herself and her country.

The announced purpose of the Cultural Exchange Act is to af-
ford aliens an opportunity to visit the United States and acquire
skills that would be useful in their homelands. To the extent that
a visiting exchangee does not return to his native land, a major
policy of the Act is undercut. Congress sought to secure its objec-
tives by adopting the requirements of section 212(e) of the Immi-
gration and Nationality Act, as amended.

Considering all the factors discussed, we find that the applicant
has not established that if she returned to Nigeria, the country of
her nationality and last residence, that she would in fact be sub-
ject to persecution on account of race, religion, or political
opinion. No evidence has been presented on appeal that would
warrant a change from the decision of the District Director.

The Matter of Brantigan, 11 1. & N. Dec. 498, holds that bur-
den of proof to establish eligibility for a desired benefit rests
with the petitioner (applicant). That burden has not been met.
The applicant has failed to establish that she is eligible for the
relief she seeks. The appeal will be dismissed.

ORDER: It is ordered that the appeal be dismissed.

809


Interim Decision #2568

MATTER OF ANSELMO
In Visa Petition Proceedings
A-34394164
Decided by Board March 18, 1977
(1) The beneficiary of the instant second-preference visa petition filed under section
203(a)(2) of the Immigration and Nationality Act had previously been admitted to the
United States as a lawful permanent resident as the beneficiary of an immediate relative
visa petition filed by a U.S. citizen spouse. Subsequently, she indicated in a sworn
statement to the Service that the marriage on which the prior immediate relative visa
petition had been based and granted vas a fiction, had never taken place, and that she
had never met nor married the man listed in the petition as her spouse.
eel ence petition nuclei section 204(c)

(2) The District Director denied the inntetit

of the Act on the ground that the previous petition had been granted on the basis of a
marriage entered into to evade the immigration laws, and it did not appear that he had
considered the bona fides of the second marriage.
(a) Since no marriage took place in connection with the filing of the previous immediate
relative petition, section 204(c) was inapplicable, and the record will be remanded to the
District Director for consideration of the bona fides of the second marriage and entry of a
new decision.
(4) Matter of Concepcion, Interim Decision 2529 (BIA 1976), followed.
ON BEHALF OF PETMONER: William. J. Lawler, Esquire
Suite 320
615 Montgomery Street

San Francisco, California 94111
14filhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members. Board
Member Torrington dissenting.

The lawful permanent resident petitioner applied for preference
status for the beneficiary as his spouse ender section 20S(a)(2) of the

Immigration and Nationality Act. In a decision dated March 29, 1976,
the District Director denied the petition and the petitioner has appealed
from that denial. The record will be remanded to the District Director
for further proceedings.
Both the petitioner and the beneficiary are natives and citizens of the
Philippine Islands. The beneficiary had previously been accorded immediate relative status as the spouse of a United States citizen and had

entered the United States as a lawful permanent resident on July 14,
152

Interim Decision #2568
1973. In a sworn statement to the Service, dated October 31, 1974, the
beneficiary admitted that the marriage upon which the first visa petition
had been based was a fiction and that she had neither met nor married
the man listed as her spouse. On February 22, 1975, the beneficiary
married the present petitioner who subsequently filed another visa
petition in her behalf. The District Director concluded that the beneficiary had previously been accorded immediate relative status as the
spouse of a United States citizen by reason of a marriage entered into in
order to circumvent the immigration laws. Relying on section 204(c) of
the Act, the District Director denied the petition.
Section 204(c) states, in pertinent part, that. .. no petition shall be approved if the alien has previously been accorded a nonquota
or preference status as the spouse of a citizen of the United States . . . , by reason of a
marriage determined by the Attorney General to have been entered into for the purpose
of evading the immigration laws. (Emphasis supplied)

The beneficiary has previously been accorded immediate relative
status as the spouse of a United States citizen. However, she was
accorded that status, according to her sworn statement, on the basis of
falsified documents, not on the basis of a marriage entered into fur the
purpose of evading the immigration laws. Although the beneficiary
benefited from the Service determination that a valid marriage existed,
a marriage did not in fact exist. In the absence of an actual marriage,

section 204(c) does not apply. Matter of Concepcion, Interim Decision
2529 (BIA September 8, 1976).
We note from the record that, at present, the beneficiary apparently
possesses the very status that ultimately would be accorded her should
the visa petition be approved. Although she has admitted that her
present lawful permanent resident status was fraudulently obtained,
the record is silent as to whether the Service has as yet instituted
deportation or rescission proceedings. Should, the Service take such
action, the beneficiary would then be eligible, as an "alien" within the
meaning of section 245 of the Act, to seek to adjust her status to that of a
permanent resident alien. See Matter of Callao, Interim Decision 2555
(BIA. February 7, 1977). Under 8 C.F.R. 245.1(d), an applicant for
preference status is not eligible for adjustment of status unless he or she
is the beneficiary of a valid unexpired visa petition filed in accordance
with 8 C.F.R. 204 and approved to accord such status. Accordingly,
while the need for this visa petition has not been conclusively demonstrated, in view of the beneficiary's apparent deportable status, and the
possibility that approval may be needed as a prerequisite for adjustment, we would normally entertain the petition on its merits.
However, the District Director based his decision on section 204(e),
and it does not appear that he considered whether the beneficiary's
pres ent marriage is bona fide. Therefore, on remand, the District Direc153

Interim Decision #2568
for may determine whether the marriage between the petitioner and
the beneficiary is bona fide. See Matter of Phillis, Interim Decision 2407
(BIA 1975).
ORDER: The record is remanded to the District Director for further
proceedings consistent with the above opinion, and for entry of a new
decision.
Warren R. Torrington, Member, Dissenting:
I respectfully dissent.

At the time when Mager of Concepcion, Interim Decision 2529 (BIA
September 8, 1976), was before us, I was unable to express my disagreement with the Board's holding, in a dissenting opinion. I now avail
myself of the opportunity to do so.
In my view, the language of section 204(c) of the Immigration and
Nationality Act is broad enough to encompass the situations encountered in Concepcion and in the case now before us. A person who has not
even bothered to go to the trouble of entering into a sham marriage
(that is, a marriage entered into for the purposes of evading the immigration laws), but has merely pretended to be married, and has presented false documents as evidence of a marriage, should not, on what
appears to me to be specious reasoning, be considered outside the
provisions of section 204(c) of the Act. In my view, he is less entitled to
approval of a second visa petition than the person who has previously
gone through the formalities of a (sham) marriage; and a holding which
treats him better than it does a person who has gone through the
motions of a sham marriage does not make good sense. Concepcion
permits aliens to avoid the clear provisions of section 204(c) of the Act
by not even going to the trouble of entering into actual sham marriages.
I cannot consider that a commendable outcome.
This is strictly a visa petition matter. The matter of possible future
adjustment of the beneficiary's status is not before us. I therefore fail to
see the relevance of the references, in the majority opinion, to a possible
future application for adjustment of the beneficiary's status, and to the
fact that the record does not reveal whether rescission or deportation
proceedings are pending.
As I read the Second . Circuit's decision in

Tiblco v. INS, 835 F.2d 42 (2

Cir. 1964), which the majority opinion does not mention, but which was
relied on in the here cited decision in Matter of Calilao, Interim Decision 2555 (BIA February 7, 1977), Tibke does not make rescission or
deportation proceedings a prerequisite for approval of visa petitions
filed for potentially deportable permanent resident aliens. All we have
now before us is such a visa petition.
I would overrule Matter of Concepcion, supra, and would dismiss Lbe
appeal.
154


MATTER OF Sin EXCLUSION Proceedings

A-11537371
Decided by Board December 23, 5518
Citizenship--Acquisition by child born abroad—Section 301(a)(7), (b) and (c),
Immigration and Nationality Act—Failure to retain under section 201 (g) and
(h), Nationality Act of 1940—Savings clause, section 405, Immigration and
Nationality Act—Expatriation, conclusive presumption, section 349(b), 1952
act.
(1) A person who acquired United States citizenship in 1935 at time of birth
abroad its a U.S. citisvo praront pod an alien parent) under section 1993 of
the Revised Statutes, as amended, and who failed to take up residence in
the United States prior to his sixteenth birthday as required by section
201(g) and (h) of the Nationality Act of 1040, retains his United States
citizenship weep he ,m,plice nsoh rho provisions of section 301(b) of the
Immigration and Nationality Act by coming to the United States prior to
his twenty-third birthday and establishing physical presence in the United
(Matter of
5 I. & N.
States for a continuous period of five years.
Dec. 291 (1953), overruled.)
consul
that
(2) Information furnished such person in 1051 by en American
he had lost his United States citizenship under section 201 (g) and (h) of
the Nationality Act of 1940 by failing to take up residence in the United
States prior to his sixteenth hirtnoay 1V11 ,, Acrorato whorl noon but later
became inapplicable by reason of the enactment of section 301(a) (7), (b),
and (c) of the Immigration and Nationality Act. When such person, in the
belief that he had already lost: his United States citizenship, voted in an
Italian political election in 1956. his act of voting will not be considered
expatriative provided he applies for a United States passport prior to his
twenty-third birthday.
(3) Where such person makes timely application for a United States passport
which, because of delay by the Government, is not issued until after his
twenty-third birthday, and he proceeds to the United States immediately
lifter its issuance, he is entitled to admission as a United States citizen
since his failure to arrive in the United 0.5111to,, prior to hig twenty-third
birthday was due to circumstances beyond his control.
(4) An act designated expatriative by statute will not operate to expatriate a
United States citizen who was unaware that he had United States citizenship or of the consequences of the expatriative act, provided (a) he had
been misled by a change in interpretation in the law; or (I)) he had been
misled by the action of a government official whose duty it was to inform
him; or (e) he performed the expatriative act after receiving information

226

(which later became inapplicable, though accurate when given) from
ernment official that he had already lost United States citizenship.

a

Gov-

(5) The provision in section 340 (b) of the Immigration and Nationality Act
that certain acts shall be "conclusively presumed .' to have been performed
voluntarily is not applicable to cases where the United States citizen relied
on the advice of a United States consul that he had already lost his United
States citizenship and where he would not have jeopardized his citizenship
by voting had he not been so informed.
EXCLUDABLE : Act of 1052—Section 2121a) 120) 13 U.S.C. 1182(a) (20)1—Immigrant, no visa.

BEFORE THE BOARD

Discussion: The applicant is a 23-year-old single male who was
burn in Italy oar Mat ch 10, 1035.

Its arrived in the United ',Antes

on June 30, 1058, and applied for admission as a United States
citizen. He was in possession of a United States passport issued
to him by the American Consul at Naples, Italy, on June 19, 1958.The special inquiry officer ordered that applicant be admitted to
the United States as a citizen of the United States, and certified
the decision to this Board as a case of novel impression.
The applicant was never in the United States prior to his application for entry on June 19, 1958. His father and mother were both
born in Italy, and his father became a naturalized citizen of the
United States on October 5, 1929. His mother has never been a
citizen of the United States. Applicant acquired citizenship of the
United States at birth under section 1993 of the Revised Statutes
of the United States, as amended by the Act of May 24-, 1934.
Under section 201(g) 1 of the Nationality Act of 1940 it was necessary for applicant to arrive in else United States before he became
18 years of age in order to retain his United States citizenship. By
enactment of section 301(a) through (c) of 111e Inunigration and
,• SEE. 201. The following shall be nationals and citizens of the United States
at birth: a a a (g) A person born outside the United States and its outlying
possessions of parents one of whom is a citizen of the United States who,
prior to the birth of such person, has had ten years' residence in the United
States or one of its outlying possessions, at least fire of whirl' were after
attaining the age of sixteen years, the other being an alien: Provided, That
in order to retain such citizenship, the child must reside in the United States
or its outlying Possessions for a Period or Periods totaling live rears between
the ages of thirteen and twenty-one years: Provided fitriser, Thar, if the
child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides
abroad for such a time that it heroines impossible for him to complete the
five years' residence in the United States or its outlying possessions before
reaching the age of twenty-one years, his American citizenship shall thereupon
cease.

237

23 at time of documentation, who acquired United States citizenship at birth, and who applied for a passport before reaching 23,
whose application was disapproved because he had failed to take

up residence in the United States before reaching 16, may now be
given a United States passport (under conditions enumerated,
which are not relevant here because they have been complied with).
The memoranda stipulated that the applicant must have been
"wrongfully refused documentation" or "misinformed" that he had
lost United States citizenship under section 201(g) of the 1940 act
for failure to come to the United States before age 16. He must have
been prevented from complying with section 301(b) of the Immigration and Nationality Act by the erroneous previous interpretation of section 301(b) by the State Department.
The instant case differs from similar matters that have reached
us, in that this applicant performed an expatriative act in the
interval during which he believed he had lost his claim to United
States citizenship at his 16th birthday. He voted in municipal
elections on May 27, 1956. The memoranda from the Department
of State, referred to above, specifically instructed consular and

diplomatic personnel that "all cases of the foregoing nature involving otherwise expatriative acts must be submitted for the Department's consideration." The memoranda then set forth three hypothetical cases to illustrate the position that performance of an
otherwise expatriative act would not necessarily preclude an applicant from obtaining the benefits of section 301 (b) of the Immigration and Nationality Act. The hypothetical situations set forth in
State Department memorandum of October 14, 1958 (and we have
abbreviated to some extent) are as follows:
-wan born a United Staten citizen on February 09,
A. A
1935. He applied for a United States passport for the first time on
June 1, 1952, at age 17. He was denied a passport because of the
provisions of section 201(g) of the 1940 act, and he was correctly
informed that he had lost his United States citizenship. He voted
in a foreign election in 1956. In January 1958 when he was not
yet 23 years of age he learned of section 301(b) of the 1952 act.
He applied for a passport immediately. Even though he voted, believing himself an alien, and even though he was correctly informed
by a consular official of his status on June 1, 1952, he would be
documented. Because he was not yet 23 when he applied in January 1958, it will be considered his act of voting was not expatriative.
was born a United States citizen on May 31, 1934.
B. B
He applied for a passport for the first time on June 1. 1952 (age
18). His application was denied because of section 201(g) of the
1940 act, and he was correctly informed that he had lost his United
States citizenship. He voted in a foreign election in 1956 at the
230

age of 22, believing himself to be an alien. He first learned of
the new interpretation of section 301(b) in January 1958 at the
age of 23 years and applied for a passport immediately. (The
facts in B----- are the same as the facts relating to A
above,
except that B
seas over age 23 at the time of his application
for a passport.) In this case, says the State Department, his
failure to comply with the retention provisions of section 301(b) of
the 1952 act cannot "in equity be attributed to the United States
Government." Hence, they hold B lost his citizenship on his
23rd birthday. (He did not lose his United States citizenship by

the act of voting in the foreign election, but simply by the passage
of time.)
C. C-- was born a United States citizen on June 1, 1934. He
applied for a passport the first time on July 1, 1952 (at the age of
18). His application was denied because of the provisions of section 201(g) of the 1940 act. He was "slot fully Wormed," because
he was not told that the new law passed June 27, 1952 (effective
December 24, 1952) would restore his citizenship on December 24,
1952. (He could not be so informed, because of the departmental
View at that time that ,ectiun 301(b) of the 1952 act would not
restore citizenship to those who had lost it.) He voted in a foreign
election in 1956. He learned of section 301(b) in January 1958, at
the age of 23 - and - s - half years, and reapplied for a passport immediately. The memorandum declares that State would not view his
act of voting as an expatriative act, but would consider it due to
the mistake of the United States Government. He was in the
same position as the person who was misinformed after December 24, 1952. His failure to arrive in the United States before age
23 was also the fault of this Government, and hence he will be given
a passport, even though he was over age 23 when he applied for a
passport in January 1958.
Applicant falls within group A above, and his documentation for
travel to the United States was consistent with the directive of
October 14, 1958.
Whether or not the instructions in the memoranda of the Department of State discussed above and the distinctions made there
are sound in all categories, as to this case the directive seems
reasonable enough, and we will not now take a more restrictive view.
However, we have previously taken the view that when the expatriative act occurred, the consequence of expatriation flowed from
the act, even though the claimant did not intend the consequence.
That is, if he voted intentionally in a foreign election, either not
knowing he was a United States citizen, or not knowing that such
voting had expatriative consequences, he nonetheless was expatriated. This has been the view taken by most courts who have had
231

any of several phases of these problems before them. The thesis
has developed as follows: Congress has power to enact legislation
depriving individuals of their United States citizenship as u consequence of conduct engaged in voluntarily (Mackenzie v. Hare,
239 U.S. 299; Savorgnan v. United States, 338 U.S. 491). Citizenship may be renounced voluntarily through exercise of the right of
expatriation and also by other acts "in derogation of individual
allegiance to this country" (Sarargrtan and Mackenzie, supra, also
Roster v. CZo.rk, 161 4'.2.1 297, cert. den. 332 U.S. 839). No conduct
results in expatriation unless the conduct is engaged in voluntarily
(Mandolt v. Acheson, 344 U.S. 133; Acheson v. Murata, 342 U.S.
900). The burden is on the Government to prove the performance
of the expatriating act by clear, convincing and unequivocal evidence (Schneiderman v. United States, 320 U.S, 118; Baumgartner
v. United States, 322 U.S. 665; Gonzales v. Landon, 350 U.S. 920).
The burden is on the Government to prove also by clear, convincing
and unequivocal evidence that the expatriating act (the act showing renunciation of citizenship) was voluntarily performed (Nishilarcoa V. Dul7co, 356 U.S. 109). Wo come now to an issue which
concerns us in the instant case, and which was settled by Perez
v. Brow-nett, 356 U.S. 44, whether a person, in order' to expatriate
himself by the performance of the voluntary act, most know that
the act has an expatriating effect. In Perez the Court said:
But it would be a mockery of this Court's decisions to suggest that a

person, in order to lose his citizenship, must intend or desire to do so. The
Court only a few years ago said of the person held to have lost her citizenship
in Mackenzie v. Hare, supra: "The woman had not intended to give up her
American citizenship." Savorgnun v. United States, 338 U.S. 491, 501 * * *
Those two cases mean nothing--Mdced, they are deceptive—if their essential
significance is not rejection of the notion that the power of Congress to terminate citizenship depends upon the citizen's assent. * a *

There are many lower court decisions but we quote only one,
Acheson v. TV ohlmuth, 196 F.2d 866 (C.A.D.C., 1952), cert. den.
344 U.S. 833, which states concisely:
. A person cannot avoid the consequences which Congress has attached
to his overt acts by claiming ignorance of the law or a contrary intention on
his own part in performing those acts, even though loss of citizenship is the
result. * * *
The general rule shruilti onntinue, to he that so long as the act
was unequivocal, proved beyond a reasonable doubt, not under duress, etc., the result was expatriation. The holding of the present
case, that the foreign voting (or any other act designated e,x*A minority view is expressed by the Circuit Court of Appeals for the Third
Circuit in Perri v. Duties, 206 F.2d 586, and Petition of deeltione., 213 F.2d 842,
wherein it is declared, in effect, that a citizen cannot be deprived of his citizenship without his knowledge and concurrence.

23')

patriative by the statute) will'not operate to expatriate where the
claimant Was unaware of the consequences, or was unaware that
he had United States citizenship, should be limited to the following situations : (1) where the claimant was misled by a change of
interpretation in the law, or (2) where he was misled by the action
of the Government officer whose duty it was to inform him, or (3)
where the claimant performed the expatriative act believing, because of information given him by a Government, official (information which, though accurate when given him, later became inapplieabls), that he had already lost his United States citizenship.
If the claimant committed the expatriative act under these circumstances, he will not be found to have forfeited his citizenship.
The Service representative calls our attention to section 349(b)T
of the Immigration and Nationality Act, which provides a conclusive presumption that any expatriative act specified in section
349(a) was done voluntarily and without duress, if the claimant
to citizenship was a national of the state wherein the act was performed, who had bee physically present in that state for ten years
or more. Certainly the terms of the conclusive presumption apply
to the facts in the instant case. The claimant here makes no sug
gestion that his voting in the foreign election was involuntary or
under duress. However, the circumstances under which the preeumption eras intended to operate do not exist here where we must
find that the claimant relied on the advice of a United States official,
and that he would not have jeopardized his citizenship had be not
been informed that it was already lost to him.
The special inquiry officer concluded that applicant's departure
from Italy was dependent upon the issuance to him of a United
States passport, that he could not lawfully enter the United States
until he was documented, that there was no delay in his applying
for a passport as soon as he became aware that he might still have
a claim to United States citizenship. Therefore, his failure to arrive
in the United States prior to his becoming age 23 was due to circumstances beyond his control, and he did enter the United States
to take up permanent residence here as soon as he lawfully could
do so. The order of the special inquiry officer that the applicant
be admitted to the United States as a citizen of the United States
was the correct one.
Order: It is ordered that the order of the special inquiry officer
of August 20, 1958 be and is hereby approved.
Sae. 349(b) Any person who commits or performs any act specified in subsection (a) shall he conclusively presumed to have done so voluntarily and
without having been subjected to duress of any kind, if such person at the
time of the act was a national of the state in which the act was performed
and had been physically present in such state for a period or periods totaling
ten years or more immediately prior to such act.

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Matter of J-J-G-, Respondent
Decided March 31, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The exceptional and extremely unusual hardship for cancellation of removal is based
on a cumulative consideration of all hardship factors, but to the extent that a claim is
based on the health of a qualifying relative, an applicant needs to establish that the
relative has a serious medical condition and, if he or she is accompanying the applicant
to the country of removal, that adequate medical care for the claimed condition is not
reasonably available in that country.
(2) The Immigration Judge properly determined that the respondent did not establish
eligibility for cancellation of removal because he did not demonstrate that his qualifying
relatives will experience hardship, including medical, economic, and emotional
hardship, that rises to the level of exceptional and extremely unusual.
FOR RESPONDENT: Marjan H. Bahmani, Esquire, Encino, California
BEFORE: Board Panel: MALPHRUS, Acting Chairman; CREPPY and CASSIDY, Board
Members.
MALPHRUS, Acting Chairman:

In a decision dated April 5, 2019, an Immigration Judge denied the
respondent’s applications for asylum, cancellation of removal, and
withholding of removal pursuant to sections 208(b)(1)(A), 240A(b)(1), and
241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1158(b)(1)(A), 1229b(b)(1), and 1231(b)(3)(A) (2018), and for protection
under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature Dec.
10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”). The respondent has
appealed from this decision.1 The appeal will be dismissed.
1

On appeal, the respondent contests the Immigration Judge’s decision to deny his
applications for cancellation of removal, withholding of removal, and protection under the
Convention Against Torture. He does not challenge the denial of his application for asylum,
so that issue is not before us. See Matter of Zhang, 27 I&N Dec. 569, 569 n.2 (BIA 2019).

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I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala who is present in the
United States without being admitted or paroled. After he was placed in
proceedings and found to be removable, he applied for relief from removal.
The sole issue regarding the respondent’s statutory eligibility for cancellation
of removal at his hearing was whether his removal would result in
exceptional and extremely unusual hardship to his qualifying relatives.
The respondent presented evidence that he has six qualifying relatives—
his five United States citizen children and his lawful permanent resident
mother. At the time of the hearing, his four oldest children were 12, 11, 8,
and 5 years of age, and his youngest was 2 months old. The respondent
testified that his children would remain in the United States if he is removed.
However, his partner, the mother of his children, testified that the children
would relocate to Guatemala and indicated that she would also accompany
the respondent.2 She previously worked and helped to pay the family’s rent.
The respondent’s 8-year-old daughter has been diagnosed with
hypothyroidism, a condition she has had since birth. She requires regular
medication to treat this condition, and if she does not have it, she has
problems regulating metabolic functions, like the temperature of her body.
The medical costs of the respondent’s children are covered by State benefits,
and they receive food stamps. The respondent claims that he would be unable
to afford medication to treat his daughter’s hypothyroidism in Guatemala.
His partner stated that the medication costs $1,100 there, indicating that she
obtained this information from the internet. However, the respondent’s
mother testified that she had received medical care in Guatemala free of
charge and believes that it is still provided for free in that country.
The respondent’s oldest child went to counseling for about 3 months in
2016 for “aggressive and defiant behavior[],” but there is no indication that
he was diagnosed with any mental health or behavioral issues. The
respondent’s 11-year-old son attended the same counseling service for about
5 months in 2018 and was diagnosed with “Anxiety Disorder, unspecified”
and “Attention-deficit hyperactivity disorder, unspecified.” After the
counselors provided this child with coping strategies to alleviate his anxiety,
including watching fewer “scary movies” with his older brother, they
concluded that the relevant treatment goals had been met and that he had
“[s]uccessful[ly] complet[ed] therapy.” There is a letter from the counseling

2

The respondent’s partner did not address why her children would accompany the
respondent to Guatemala, even though the children’s medical conditions are a significant
aspect of this case, and both she and the respondent claimed that the children need to remain
in the United States to obtain proper treatment.

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service in the record, stating that this son was scheduled for a “second intake
and re-assessment,” but no records of additional counseling were submitted.
With regard to the hardship of his lawful permanent resident mother, the
respondent testified that he provides support to her and that he, his partner,
and his children all live with, and pay rent to, his mother. The respondent
presented evidence that his mother has been diagnosed with hypertension,
but the evidence also indicates that State benefits cover all of her medical
expenses and that she is able to take the bus to medical appointments and
pick up her own prescriptions. Although the respondent and his mother claim
that she suffers from other medical conditions, no documentation was
submitted to corroborate this claim. She receives Social Security benefits
and has rented a room in her home for income in the past. The respondent’s
sister indicated that she could live with and take care of their mother, who
would remain in the United States in the event that her son is removed.
The respondent claimed that if his children accompany him to Guatemala,
they will face limited educational and economic opportunities in that country,
especially in light of his son’s attention deficit disorder. He also argued that
his mother and children will face emotional hardship in the event they are
separated from him.
Regarding his application for withholding of removal and protection
under the Convention Against Torture, the respondent claimed that gang
members in Guatemala threatened and harmed him after he refused to join
their gang in 1995 and 1996, when he was 12 and 13 years old, respectively.
In addition, he claims that the relatives of his ex-girlfriend threatened him in
2002 in Guatemala because they falsely believed that he was involved in the
death of her brother. He contends that the gangs and these individuals will
harm him further if he is removed to that country.

II. ANALYSIS
A. Cancellation of Removal
To establish eligibility for cancellation of removal, the respondent must
demonstrate, among other things, that his “removal would result in
exceptional and extremely unusual hardship to the alien’s spouse, parent, or
child, who is a citizen of the United States or an alien lawfully admitted for
permanent residence.” Section 240A(b)(1)(D) of the Act. For the following
reasons, we will affirm the Immigration Judge’s determination that the
respondent has not established that his removal would result in the requisite
level of hardship to his qualifying relatives.

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1. Hardship Based on a Qualifying Relative’s Health
The respondent argues that his qualifying relatives would experience the
requisite level of hardship for cancellation of removal, at least in part based
on their medical conditions. He also asserts that medical care for these
conditions is unavailable in Guatemala. It is well settled that for purposes of
cancellation, we consider the “ages, health, and circumstances of qualifying
lawful permanent resident and United States citizen relatives.” Matter of
Monreal, 23 I&N Dec. 56, 63 (BIA 2001). The exceptional and extremely
unusual hardship for cancellation of removal is based on a cumulative
consideration of all hardship factors, but to the extent that a claim is based
on the health of a qualifying relative, an applicant needs to establish that the
relative has a serious medical condition and, if he or she is accompanying the
applicant to the country of removal, 3 that adequate medical care for the
claimed condition is not reasonably available in that country.4
Whether a qualifying relative suffers from a serious medical condition
and whether adequate medical care for this condition is reasonably available
in the country of removal are findings of fact that are made by an Immigration
Judge and reviewed on appeal under a clearly erroneous standard. 8 C.F.R.
§ 1003.1(d)(3)(i) (2019). The applicant has the burden of establishing these
facts. Section 240(c)(4)(B) of the Act, 8 U.S.C. § 1229a(c)(4)(B) (2018).
The Immigration Judge must evaluate whether an applicant’s testimony
regarding the seriousness of a qualifying relative’s medical condition and the
reasonable availability of medical care in the country of removal “is credible,
is persuasive, and refers to specific facts sufficient to demonstrate that the
applicant has satisfied [his or her] burden of proof.” Id. Generally, an
3

It is the applicant’s burden to establish that a qualifying relative will accompany him or
her to the country of removal. See section 240(c)(4)(B) of the Act, 8 U.S.C.
§ 1229a(c)(4)(B) (2018) (providing that an applicant “must comply with the applicable
requirement to submit information or documentation in support of the applicant’s
application for relief”). See generally Matter of Calderon-Hernandez, 25 I&N Dec. 885,
886 (BIA 2012) (discussing the presumptions and requirements of proof regarding whether
a qualifying relative child will remain in the United States or leave with the applicant);
Matter of Ige, 20 I&N Dec. 880, 885–86 (BIA 1994) (same).
4
Our decision today is not inconsistent with our holding in Matter of Recinas, 23 I&N
Dec. 467, 470 (BIA 2002), that the hardship standard for cancellation of removal “is not
so restrictive that only . . . those who have a qualifying relative with a serious medical
condition[] will qualify for relief.” We do not discount the possibility that a qualifying
relative who does not suffer from a serious medical condition may, in light of other relevant
hardship factors, experience the requisite level of hardship as a result of an applicant’s
removal. However, we clarify in this decision that where an applicant seeks to establish
the required hardship based on a qualifying relative’s medical condition, he or she must
make the above showings.

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applicant will lack the firsthand knowledge and medical expertise needed to
provide persuasive and sufficiently specific testimony regarding the
seriousness of a qualifying relative’s medical condition and the availability
of care in the country of removal to meet that burden. The Immigration Judge
should therefore determine whether the applicant has submitted sufficient
reliable evidence to corroborate his or her testimony in this regard. See id.
The hypothyroidism the respondent’s daughter suffers may constitute a
serious medical condition, particularly given the consequences if it is left
untreated, but the record reflects that his daughter receives regular treatment
for this condition in the United States, and there is no indication that she will
be unable to continue treatment if the respondent is removed.5 Although the
respondent’s partner testified that she learned from the internet that treatment
for hypothyroidism costs $1,100 in Guatemala, the Immigration Judge found
that the respondent presented no evidence to corroborate her testimony. See
section 240(c)(4)(B) of the Act (providing that an Immigration Judge may
require the submission of corroborating evidence, even where the testimony
of an applicant or witness is credible). The Immigration Judge also
reasonably determined that the basis for her testimony was inadequate to
establish her assertion.6
Moreover, as the respondent concedes on appeal, his mother testified that
she received free medical care in Guatemala and believes that it continues to
be free there. In light of this testimony, the Immigration Judge was not
required to accept the assertions made by the respondent and his partner
regarding the cost and availability of treatment for hypothyroidism in
Guatemala. See Matter of D-A-C-, 27 I&N Dec. 575, 579 (BIA 2019) (“An
Immigration Judge ‘is not required to accept a respondent’s assertions, even
if plausible, where there are other permissible views of the evidence based
on the record.’” (citation omitted)).
The respondent has submitted evidence reflecting that medical facilities
in Guatemala provide a lower standard of medical care than facilities in the
United States. However, this evidence does not show that treatment for
hypothyroidism is not reasonably available in Guatemala. Moreover, it is
5

Although not at issue in this case, if a qualifying relative is receiving ongoing treatment
for a serious medical condition, evidence of detrimental consequences that would result
from disruption of the treatment regimen is relevant to establishing the requisite hardship.
6
Even if the respondent had submitted a printout from the internet indicating that medical
treatment for hypothyroidism costs $1,100 in Guatemala, the Immigration Judge would
still need to evaluate the relevance and reliability of the document and weigh it along with
the credible testimony presented to determine whether the respondent met his burden of
proof. See section 240(c)(4)(B) of the Act; cf. Badasa v. Mukasey, 540 F.3d 909, 910 (8th
Cir. 2008) (noting that an Immigration Judge erred in relying on an internet document
without analyzing whether it was “a sufficiently reliable source” of information).

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well settled that evidence that a qualifying relative will experience a “lower
standard of living” in the country of removal, including a lower standard of
medical care, “will be insufficient in [itself] to support a finding of
exceptional and extremely unusual hardship.” Matter of Monreal, 23 I&N
Dec. at 63–64; cf. Matter of Correa, 19 I&N Dec. 130, 134 (BIA 1984) (“The
fact that the medical facilities in Colombia may not be as good as they are in
this country does not mean that [the applicant’s] children . . . will suffer
extreme hardship there.” (emphasis added)).7
Further, although the Immigration Judge acknowledged that two of the
respondent’s children have received counseling for behavioral and emotional
problems, and one of them has been diagnosed with anxiety and attention
deficit disorders, there is no clear error in the Immigration Judge’s findings
that these are not serious ongoing medical conditions. The older of these two
children was not diagnosed with any mental health, emotional, or behavioral
conditions during counseling. Moreover, the record reflects that the younger
child successfully completed counseling and was given coping strategies for
his anxiety, and there is no indication that he has received further counseling
or treatment for either his anxiety or attention deficit disorders.
There is also no clear error in the Immigration Judge’s finding that if the
children remain in the United States and need treatment for their conditions,
they will be able to obtain it. The respondent does not argue that treatment
for these conditions is unavailable in Guatemala. Nor does he meaningfully
contest the Immigration Judge’s finding that the son who suffers from
anxiety will feel less anxious if he accompanies the respondent to Guatemala.
Finally, the Immigration Judge did not clearly err when she found that the
hypertension of the respondent’s mother was not serious and that she could
continue to obtain treatment for this condition in the United States. The
respondent’s mother testified that the medical expenses stemming from her
hypertension are covered by State benefits, she takes the bus to the doctor,
and she is able to pick up her own prescriptions. There is also no indication
that her hypertension prevents her from performing necessary tasks.
2. Other Hardship Considerations
With regard to the financial hardship that would allegedly result from his
removal, the respondent does not contest the Immigration Judge’s finding
7

Although Matter of Correa held that evidence of lower quality medical facilities in the
country of removal was insufficient to establish “extreme hardship” to a relative for
purposes of suspension of deportation under former section 244(a)(1) of the Act, 8 U.S.C.
§ 1254(a)(1) (1994), it is instructive since the exceptional and extremely unusual hardship
“standard for cancellation of removal is a higher one than that under the suspension of
deportation statute.” Matter of Monreal, 23 I&N Dec. at 59 (emphasis added).

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that he could financially support his family if his children and partner
accompany him to Guatemala. Nor does he meaningfully challenge the
Immigration Judge’s finding that, in the event his children and partner remain
in the United States, his partner could return to work and help support the
children. The respondent’s mother testified that she receives Social Security
benefits and has rented one of the rooms in her home for income in the past.
She is currently renting space to the respondent and his family. The
respondent’s sister also stated that she could live with and care for the
respondent’s mother in the event the respondent is removed.
While the respondent’s children may face fewer economic and
educational opportunities in Guatemala than they would if they remained
in this country, both in the short and long term, economic detriment is
generally insufficient to support a finding of the required hardship. See
Matter of Andazola, 23 I&N Dec. 319, 323 (BIA 2002). Difficulties of this
nature are an unfortunate consequence of removal in many cases. The
respondent has not shown that his children “would be deprived of all
schooling or of an opportunity to obtain any education” in Guatemala. Id.
Furthermore, since his children are citizens of the United States, they may
return to this country later to pursue economic and educational opportunities.
Finally, we acknowledge the emotional hardship the respondent’s
relatives may experience as a result of their separation from him if they
remain in the United States. However, we agree with the Immigration Judge
that it does not rise to the level of exceptional and extremely unusual
hardship. Moreover, the respondent has waived any challenge to the
Immigration Judge’s finding that his son, who suffers from anxiety disorder,
will be less anxious if he accompanies his father to Guatemala.8
Considering all of the hardship factors in this case cumulatively,
including the hardships that may result from the medical, economic, and
emotional factors, the respondent’s qualifying relatives will not experience
hardship that rises to the level of extremely and exceptionally unusual. The
hardship must be “substantially different from, or beyond, that which would
normally be expected from the deportation of an alien with close family
members here.” Matter of Monreal, 23 I&N Dec. at 65 (noting the “high
level of hardship” of hardship that Congress established); cf. Matter of
Recinas, 23 I&N Dec. 463, 472 (BIA 2002) (finding that the hardship was
sufficient to warrant a grant of relief). In fact, the application of the
exceptional and extremely unusual hardship standard must be “limited to
8

The respondent argues for the first time on appeal that the Immigration Judge should
have considered the risk to his children’s safety in Guatemala and the “derivative” hardship
his qualifying relatives will experience as a consequence of the hardship his partner may
face upon his removal. These arguments were not advanced or articulated below, and we
will not address them. See Matter of E-R-A-L-, 27 I&N Dec. 767, 768 n.2 (BIA 2020).

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‘truly exceptional’ situations.” Matter of Monreal, 23 I&N Dec. at
62 (quoting H.R. Conf. Rep. No. 104-828 (1996)); see also Matter of
Castillo-Perez, 27 I&N Dec. 664, 669 (A.G. 2019) (stating that cancellation
of removal should be granted “only to the most deserving candidates”).
Therefore, on the facts of this case, the Immigration Judge properly
determined that the respondent has not established eligibility for cancellation
of removal under section 240A(b)(1)(D) of the Act.9
B. Withholding of Removal
We will likewise uphold the Immigration Judge’s decision to deny the
respondent’s application for withholding of removal under section
241(b)(3)(A) of the Act. The respondent argued that he experienced past
persecution in Guatemala based on his membership in two groups—
(1) Guatemalan males who are accused of causing another’s death; and
(2) individuals targeted by family members of a drug cartel. However, the
respondent does not challenge the Immigration Judge’s conclusion that these
groups lack validity for purposes of withholding of removal, and we consider
any challenge in this regard to be waived. See Matter of Zhang, 27 I&N Dec.
569, 569 n.2 (BIA 2019).
The respondent also contends that he was targeted on account of his
political opinion in opposition to gang activity in Guatemala. We do not
agree. There is no indication that the gang members and relatives of the
respondent’s ex-girlfriend, who targeted him decades ago in Guatemala,
were motivated to do so because he was politically or ideologically opposed
to the gang, or to gang activity in general, or that the gang imputed any
particular political belief to him. The respondent does not claim that he is
involved in any political party or that any political activity was imputed to
him. See Matter of S-E-G-, 24 I&N Dec. 579, 589 (BIA 2008), clarified by
Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), and Matter of W-G-R-,
26 I&N Dec. 208 (BIA 2014), vacated in part and remanded on other
grounds, Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016); see also Barrios
v. Holder, 581 F.3d 849, 856 (9th Cir. 2009), abrogated on other grounds by
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). The
record evidence suggests that gang members targeted the respondent because
they sought to “increas[e] the size and influence of their gang.” Matter of
S-E-G-, 24 I&N Dec. at 589. The evidence also indicates that the relatives
of the respondent’s ex-girlfriend were motivated to target him because they
suspected he was involved in the death of her brother. “[T]hese motivations
do not constitute persecution on account of political opinion” or any valid
9

In light of this disposition, we need not address the Immigration Judge’s alternative
determination to deny the respondent’s application in the exercise of discretion.

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protected ground. Barrios, 581 F.3d at 856 (citation omitted); see also Zetino
v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free
from harassment by criminals motivated by theft or random violence by gang
members bears no nexus to a protected ground.”).
The respondent also claims that he will experience future persecution in
Guatemala based on his membership in a social group comprised of
Guatemalan men who are living and working in the United States for decades
and are removed. However, we agree with the Immigration Judge that this
social group is not valid for purposes of withholding of removal. See Matter
of E-R-A-L-, 27 I&N Dec. 767, 771 (BIA 2020) (reviewing the validity of a
social group under a de novo standard); see also Mendoza-Alvarez v. Holder,
714 F.3d 1161, 1163 (9th Cir. 2013) (per curiam).
“An applicant seeking . . . withholding of removal based on his or her
membership in a particular social group must ‘establish that the group is
(1) composed of members who share a common immutable characteristic,
(2) defined with particularity, and (3) socially distinct within the society in
question.’” Matter of E-R-A-L-, 27 I&N Dec. at 769 (citation omitted). The
United States Court of Appeals for the Ninth Circuit, in whose jurisdiction
this case arises, has rejected similarly defined social groups after concluding
that they lacked the requisite particularity. See Barbosa v. Barr, 926 F.3d
1053, 1059–60 (9th Cir. 2019) (holding that a group of “individuals
‘returning to Mexico [from] the United States [who] are believed to be
wealthy’” is “too broad to qualify” as a valid social group (alterations in
original)); Reyes, 842 F.3d at 1138 (same with regard to “deportees from the
United States to El Salvador”); Ramirez-Munoz v. Lynch, 816 F.3d 1226,
1229 (9th Cir. 2016) (same with regard to “imputed wealthy Americans”);
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (per
curiam) (same with regard to “returning Mexicans from the United States”).
Like the groups rejected by the Ninth Circuit, the respondent’s proposed
group of Guatemalan men who are living and working in the United States
for decades and are removed is “too amorphous, overbroad and diffuse” to
satisfy the requirement of particularity because the group encompasses all
males removed to Guatemala, regardless of their age, the number of decades
they lived and worked in the United States, “the reasons for their removal, or
the recency of their removal.” Reyes, 842 F.3d at 1139. In addition, the
respondent has not demonstrated that this group is perceived to be socially
distinct in Guatemalan society; he does not point to any evidence in the
record that would establish this claim. Thus, he has not demonstrated that
this proposed social group is valid for purposes of establishing his eligibility
for withholding of removal. See Matter of E-R-A-L-, 27 I&N Dec. at 769.
Finally, there is no indication that the gang members and other
individuals who threatened and harmed the respondent decades ago in
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Guatemala are still interested in him or would seek to do him harm. In light
of the significant passage of time since the respondent was last harmed by
these individuals in Guatemala and the fact that other family members who
remain there have not been contacted or harmed by them since he left over
15 years ago, the Immigration Judge did not clearly err when she found that
the respondent fears random crime and violence in that country, rather than
harm inflicted on account of his proposed social group. See Zetino, 622 F.3d
at 1016. We will therefore affirm the Immigration Judge’s finding that the
respondent has failed to demonstrate, in accordance with applicable circuit
precedent, that it is more likely than not that a valid protected ground
will be “a reason” for any persecution he may experience in Guatemala.
Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017).
C. Convention Against Torture
Finally, we will uphold the Immigration Judge’s decision to deny the
respondent’s application for protection under the Convention Against
Torture. See 8 C.F.R. §§ 1208.16(c), 1208.18(a) (2019). As noted, it has
been nearly two decades since the respondent was last threatened in
Guatemala, and he has not shown that the gang members or other individuals
who threatened and harmed him in that country are still interested in locating
him today, let alone torturing him. See Xiao Fei Zheng v. Holder, 644 F.3d
829, 835–36 (9th Cir. 2011) (upholding the denial of an application for
protection under the Convention Against Torture where the torture claim was
speculative and not established). Further, although the respondent has
submitted generalized evidence of violence and crime in Guatemala that is
not particular to him, this evidence is insufficient to establish that it is more
likely than not that he will be tortured in that country by or with the consent
or acquiescence of a Guatemalan official or an individual acting in an official
capacity. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010)
(per curiam). Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the Department of Homeland
Security, or conspires to or takes any action designed to prevent or hamper
the respondent’s departure pursuant to the order of removal, the respondent
shall be subject to a civil monetary penalty of up to $799 for each day the
respondent is in violation. See Section 274D of the Act, 8 U.S.C. § 1324d
(2018); 8 C.F.R. § 280.53(b)(14) (2019).
817


Interim Decision 4*-1503

MATTER OF DAVOTJDLARIAN
In

Section 212(e) Proceedings
A-14134873

Decided by District Director July 19, 1965
An exchange visitor physician who has been unable to find suitable employment in Lebanon duo to the crowded conditions . in the medical profession,
is unable to enter private practice due to lack of funds, and is obliged to
depend on his parents for lodging and subsistence for himself and his United
. States citizen wife who accompanied him abroad, is granted a waiver of the
foreign residence requirement of section 212(e), Immigration and Nationality Act, as •amended, since compliance therewith would result in exceptional hardship to his citizen wife who, subsequent to departure from the
United States, learned that her mother had undergone surgery for cancer,
with fnrther surgery contemplated, and the prognosis for her recovery is
poor; and who is unable to return to the United States to reside apart from
her husband pending his completion of the foreign residence requirement,
as there are insufficient funds to maintain separate households. .

Dr. David K. Davoudlarian, a physician, is a 80-year-old native
of Syria and citizen of Lebanon. He was admitted to the United
States as an exchange visitor on July 7, 1959 to complete his medical
training and specialize in obstetrics and gynecology. While in the
United States he participated in Exchange Programs P—II-82 sponsored by Muhlenburg Hospital; P—II-1703 sponsored by Chestnut
Hill Hospital and P—U-2421 sponsored by Baylor University College of Medicine, Houston, Texas. He departed from the United
States with his United States citizen wife on July 24, 1964 and is
presently residing with her in Beirut, Lebanon.
Dr. Davoudlarian filed an application for a waiver of the foreign
residence requirement of section 212(e) of the Immigration and Nationality Act on April 5, 1965. Satisfactory evidence of his marriage
on April 11, 1964 to a United States citizen has been submitted and
is the basis of his eligibility to file an application for foreign residence waiver with this Service.
Subsequent to applicant's departure from the United States, it was
learned that his wife's mother had undergone surgery"for cancer,
300

Interim Decision #1503
that she is undergoing additional X-ray and cobalt treatment with
further surgery contemplated and that her prognosis for recovery is
poor. Applicant has been unable to find suitable employment due to
crowded conditions in the medical profession in Lebanon, is unable
to enter private practice due to lack of funds and is obliged to
depend on his parents for lodging and subsistence for himself and
his United States citizen spouse. There are insufficient funds to
maintain separate households in the United States and abroad. His •
spouse is therefore unable to return to the United States to reside
separately from her husband until completion of the required foreign

residence.
In view of the foregoing it has been determined that compliance
with the foreign residence requirement of section 212(e) of the
Inunigration and Nationality Act, as amended, would impose exceptional hardship upon Dr. Davoudlarian's United States citizen

spouse. The Department of State has reviewed this =after and
recommends that the waiver be granted.
ORDER.: It is ordered that the application of Dr. David K.
Davoudlarian for a waiver of the two-year foreign residence requirement of section 212(e) of the Immigration & Nationality Act be. and
the same is hereby granted.

. 801


Interim Decision

-4, 1235

MATTES OF FLoRBS-MALDONADO

In EXCLUSION Proceedings
A-13039936
Decided by Board July 30,1962
(1) Retention requirements of section 301(b), Immigration and Nationality
Act, as amended by section 16, Act of September 11, 1957, may be satisfied by
a United States citizen who commutes regularly from his residence in Mexico
to his employment in the United States, even though he does not take up residence in the United States until after he has reached his 23d birthday.
(2) Continuous physical presence in the United States for at least five years
within the meaning of section 201(h), Immigration and Nationality Act, as
amended by section 16, Act of September li, 1957, is computed on the basis
of the number of hours actually spent in the United States each day, and does
not require establishment of residence in the United States.'
(3) A commuter may continue to reside abroad under section 301(b), Immigration end Nationality Act, as amended by section 16, Act of September 11, 1957,
provided his absences from the United States are less than twelve months in
the aggregate during the period for which continuous physical presence is
required. The establishment of a residence in the 'United States does not toll

the physical presence requirements for retention of United States citizenship.'
EXCLUDABLE:

Act of 1952—Section 212(a) (20) [8 U.S.U. 1182(a) (20) ]—Immigrant without visa.

The applicant, a native of Mexico, male, married, 23 years of age was
issued a United States citizen's identification card on November 13,
1953. He presented his citizen's identification card when he attempted
to enter the United States at El Paso, Texas on February 4, 1962.
He was detained for a hearing before a special inquiry officer. An
order entered by the special inquiry officer on March 5, 1962, excludes
the applicant under section 212(a) (20) of the Immigration and Nationality Act (8 U.S.C. 1182(a) (20) ). The special inquiry officer
found that the applicant had lost his United States citizenship by failing to establish his residence in the United States prior to attaining

the age of 23 years (section 301(b) of the Immigration and Nationality
'See also, Matter of Bustillos Buiz, Int. Dec. No. 1243, and Int. Dec. No. 1250.
-

22

Interim Decision #1235
Act; 8 U.S.C. 1401 (b) ). The applicant appeals from the order of
exclusion.
The applicant was born in Mexico on August S2, 1988. He derived

United States citizenship through his mother, who was born in California (Revised Statutes, 1993, as amended by the Act of May 24, 1934) .
The applicant concedes that he did not come to the United States to
reside until September 28 or 29, 1961. Prior to that date he maintained
his residence in Mexico but was employed in the United States.
The applicant defends on the ground that when he was issued his
citizen's identification card on November 13, 1953, the immigration
officer advised him that upon reaching the age of 23 years he would
have to reside in the United States in order to retain his United States
citizenship (R.H. p. 8). He testified that it was his impression that he
had about a month or a month and a half after reaching his 23rd birthday to assume the required. residence. Relying on the information
given him by the immigration officer he did not remove his residence
to the United States until September 28 or 29, 1961.
Loss of national by a person born outside of the geographical limits of the United States or its outlying possessions of parents one of
whom is an alien and the other a citizen who has had ten years physical
presence in. the United States prior to the birth of such person 1 is
governed by section 301(b) of the Immigration and Nationality Act
(8 U.S.C. 1401 (b) ). Section 301(b) provides that such person shall
lose his United States nationality derived at birth "unless he shall
acme to the United States prior to attaining the age of 23 years and
shall immediately following any such coining be continuously physically present in the United States for at least five years: Provided, that
such physical presence follows the attainment of the age of 14 years
and precedes the age of 28 years" (emphasis supplied).
Realizing that the five year continuous physical presence provision
of section 301(b) as originally enacted created a hardship for many
citizens born outside of the United States whose families continued to
reside abroad the Congress enacted section 16 of Public Law 85-316
(Act of September 11, 1957) 2 Section 16 of the Act of September 11,
1957, provides that in the administration of section 301(b) (supra)
"Absences from the United States of less than 12 months in the aggregate, during the period for which continuous physical presence in the
United States is required, shall not be considered to break the continuity of such physical presenoe." (Emphasis supplied.)
I Paraphrased from section 301(a) (7) of the Immigration and Nationality Act
(8 U.S.C. 1401(a) (7) ).
2

Bit

See U.S. Code Congress and Administrative News, Volume 2-85th Congress—

Sess—pp. 2019 and 2220.

23

Interim Decision #1235
The applicant was 15 years of age when issued a citizen's identification card on the occasion of his original entry at El Paso, Texas on
November 13,1953. According to the record he commuted regularly
from his residence in Mexico to his employment in the United States
during the period November 13,1953, to September 28 or 29,1961. He
testified that he moved his family to El Paso, Texas on September 28
or 29,1961, and that both of his children were born in El Paso. (p. 8
of Ex. 2.)
The applicant reached his 23rd birthday on August. 22, 1961, He
meets the first requirement set forth in section 301(b) (supra) in that
"he (came) to the United States prior to attaining the age of 23 years."
The issue before us is whether the applicant can qualify under that
portion of section 801 (h) as modified by section 16 of Public Law 85316 which permits "Absences from the United States of less than 12
months in the aggregate" during the required five years of continuous
physical presence in the United States between the ages of 14 and 28
years. If the applicant can qualify, then he was admissible as a citizen of the United States when he sought to enter on February 4,1962,
and not required to present an immigration visa. (Emphasis
supplied.)
The special inquiry officer maintains that section 16 of Public Law
85-316 does not apply in this case because the applicant "did not take
up any residence in the United States prior to September 28 or 29,
1961, which is subsequent to his having reached his 28rd birthday and,
consequently, as he does not appear to have commenced a residence in
the United States prior to his 23rd birthday, any break in "residence
thereafter or absence thereafter has not occurred so as to make section
16 of (Public Law 85-316) applicable." (Emphasis supplied.). (p. 7
R.H.) According to the special inquiry officer's interpretation of
Will sections 801(b) and section 16 of Public Law 86 316 it is impossible for the applicant to acquire "five years of continuous physical
presence in the United States" prior to attaining the age of 28 years
because "he did not take up any residence in the United States prior to
September 28 or 29,1961" and for this reason the allowable "Absences
from the United States of less than 12 months in the aggregate" during the period from his birthday on August 22, 1961, to August 22,
1966, cannot affect the applicant's case (p. 2, special inquiry officer
opinion). (Emphasis supplied.)
The special inquiry officer's interpretation of both section 301(b)
of the Immigration and Nationality Act and section 16 of Public Law
85-316 equates the term "residence" with the term "physical presence."
He has read into these statutes a technical term not expressly set forth
therein. (Emphasis supplied.)
The term "residence" is defined by section 101(a) (33) of the Immi24

Interim Decision #1235
gration and Nationality Act (8 U.S.C. 1101(a) (33) ) . It is defined
as "the place of general abode; the place of general abode of a person
means his principal, actual dwelling place in fact, without regard to
intent." The term "physical presence" on the other hand is not defined in the Immigration. and Nationality Act. It is found however
in the suspension of deportation provisions of section 244 (a) (8 U.S.C.
1254) as well as in sections 301(a), 301(b) (supra.) and section 16 of
Public Law 85-316 (supra). (Emphasis supplied.)
There is no express language in section 301(b) or section 16 of Public Law 85-316 that requires a citizen who derived his nationality
under section 301(a) (7) to establish a"residence" in the United States
during any five-year period following "the attainment of the age of
14 years and (preceding) the age of 28 years.'"

Physical presence

within the meaning of section 301(b) and section 16 of Public Law
85-316 may be, but is not necessarily concurrent with or the same as
"residence" a term expressly defined by section 101 (a) (33) of the
Immigration and Nationality Act. If Congress had intended that
``physical presence" be equated with "residence" it could have done so
by using the words "reside" or "residence" as it did in section 301(c)
(supra). There is no requirement in the statute that such a citizen
"shall come *to the United States" with the intention of residing permanently. (Emphasis supplied.)
The applicant has been commuting from Mexico as a citizen since he
obtained employment in the United States in November of 1D53. Loss
of nationality by a commuter who derived citizenship under section
301(a) (7) of the Immigration and Nationality Act. (8 U.S.C. 1401
(a) (7) ) presents a mathematical problem_ by reason of the fact that
physical presence in the United States must be computed on the basis
of the number of hours the commuter is actually in the United States
each day while traveling to, engaged in and returning from his employment, Under the amendment to section 301(b), enacted September 11, 1957 (Public Law 85-316, 8 U.S.O. 1401b), the commuter may
continue to reside abroad provided his absences from the United
States are less than 12 months in the aggregate during the period for
which continuous physical presence is required. (Emphasis supplied.)
The question to be resolved in the instant case is whether it is mathematically possible for the applicant to establish five years of continuous
physical presence in the United States prior to attaining the age of 28
years on August 22, 1966, inasmuch as he continued to commute from
3 Although the applicant was born abroad subsequent to May 24, 1034, subsection (c) of section 301 of the Immigration and Nationality Act (8 U.S.C. 1401(c)
has no application to his case because prior to the effective date of the Immigration and Nationality Act "he did not take up residence is the United States before
attaining the age of 16 years."

25

Interim Decision #1235
Mexico until September 28, 1961, which is 37 days after he attained
the age of 23 years on August 22, 1961. If the applicant's absences
aggregate "lees than 12 months * * * following any * * * coming
(to the United States) * * * prior to attaining the age of 23 years"
then such absences do not break the continuity of the required five
years of physical presence in the United States (section 301 (b)—
Immigration and Nationality Act as amended by Public Law 85316) . (Emphasis supplied.)
The applicant testified that he works on Saturday (p. 11). Allowing four hours each day for travel and lunch, based on an eight hour
work day six days each week, we conclude that the applicant was
ph ysicany present in the United States for a total of 72 hours or three
days each week. During the 37 day span between Aug-ant 22, 1061, his
23rd birthday, and September 28, 1961, the day he moved his residence to the United States, the applicant was absent from the United
States for a. total of five Sundays plus 16 days during his regular
work week or a total of 21 days overall. (Emphasis supplied.)
Accordingly when the applicant applied for admission on February 4i 1962, it was mathematically possible for him to establish five
years of continuous physical presence in the United States prior to
August 22, 1966, his 28th birthday, because within a five year period
beginning on or about 21 days prior to his 23rd birthday on. August 22,
1961, "he had come to the United States prior to attaining the age of
23 years and immediately following any such coming" he has been
absent from the United States for a period of less than 12 months in
the aggregate 4 "during the period for which continuous physical
presence is required." Under the circumstances the applicant was
admissible as a citizen of the United States when he applied for entry
on February 4, 1962. He was not required to present an immigration
visa. (Emphasis supplied.)
The fact that the applicant established a "residence" in the United
States on September 28 or 29, 1961, does not toll the requirement for
retention of United States citizenship. He should make certain fhat
there is a continuity of his actual physical presence in the United States
totaling five years prior to his 28th birthday and that this five year
period is not interrupted by total absences which aggregate 12 months
or more.
We conclude from the evidence before us that the applicant had continuous

physical presence in the United States from September 26, 1961, to the weekend of February 4, 1982. However, assuming that he visited in Mexico every
Sunday between the time he established his residence in the United States on
September 28, 1961, and the date he sought to reenter on February 4, 1962, this
fact would add at the most only 19 days to his aggregate ox absences which is
much less than the 12 months allowed by the statute.

26

Interim Decision #1236
We conclude that Congress when adopting the phrases "shall come to
the United States" and "be continuously physically present" intended
an entirely new basis for retention of derivative citizenship completely
devoid from the technical requirement of the term "residence" which
they had formerly used. An order will be entered admitting the
applicant as a United States citizen_ (Emphasis supplied_)

ORDER: It is directed that the appeal be and the same is hereby
sustained; the applicant's admission as a United States citizen as of
February 4, 1962, is hereby authorized.

27


Interim. Decision 41483

Ma= or Gpaiszet

In Deportation Proceedings
A-10198828 . •

Decided by Board June 25, .1965
Respondent, who was absent from the United States for 2 months dnHng the
reqUired period of continuous physical presence, is statutorily ineligible for

suspension of deportation under _section 244(a) (1), Immigration and Nationality Act, as amended, since any absence from the United States, no
. matter how brief, during the statutory period for which continuous phystcal
Presence Is required breaks the continuity of physical presence, notwithstanding Waimea v. Immigration and Naturalization Service, 329 P.2d 812.
[Reaffirmed: Matter of P--, 5 L & N. Dec. 220; Matter of Z—A—N—, 5 L &
N. Dec. 298; Matter of Wong, Int. Dec. No. 1334; Matter of Jacobson, Int.
Dec. No. -1418; Matter of Wong, Int. Dec. No. 1444.•
Oman: '
Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)]—Remained
longer—nonimmigrant student.

This case comes forward on appeal from an order entered by the
special inquiry officer on April 6, 1965 denying the respondent's
application requesting that her deportation be suspended under section 244(a) (1) of the Imniigration and Nationality Act, as amended,
but granting her permission to depart voluntarily from the United
States, in lieu of deportation, and directing that if she fails to depart
Voluntarily from the United States, in lieu of deportation, and directing that if she fails to depart ivhen and as required that she
be deported from the United States to Jamaica on the charge set
forth in the order to show cause. The respondent, a 83-year-old
single female, native and citizen of Jamaica, has resided continuously
in the United States since last entering at New York, New York on or
about October 8, 1900 at which time she was admitted as a nonimmigrant student, authorized to remain in the United States in such status
•NOTE: Int. Dee. No. 1444 overruled by 35£1F.2d 151.
234:

Interim Decision 41488
until September 15, 1968. She has remained. in the United States
without authority since the latter date. Deportation proceedings were
instituted against the respondent on March 12, 1965. , Hearings in
deportation proceedings were held at New York, New York on March
23 and April 6, 1965, respectively.
The respondent and counsel admitted the truth of the factual allegations set forth in the order to show cause and conceded deportability
on the charge stated therein at the hearing held on March 28, 1965.
The evidence of record clearly establishes that the respondent is subject to deportation under section 241(a) (2) of the Immigration and
Nationality Act, in that, after admission as a nonimmigrant under

section 101(a) (15) of the Act, she remained in the United States
for a longer time than permitted. The respondent's application requesting that her deportation be suspended. under section 244(a) (1)
of the Immigration and Nationality Act, as amended, was subscribed,
sworn to and submitted for consideration at the deportation hearing
held at New. York, New York on, April 6, 1965. Counsel on appeal
argued that the respondent's absence from the United States for a
period of two months during her summer vacation did not break
the continuity of her physical presence therein. Counsel asserted
that the respondent has been physically present in the United States
for seven consecutive years and is a person of good moral character
whose deportation would result in exceptional and extreme hardship to herself and to her illegitimate United States citizen child.
On examination of the record we find the respondent was initially
admitted to the United States as a nonimmigrant student in September 1955; that she resided continuously in the United States from
September 1955 until she departed 'therefrom for a two months'
vacation 'from:August to October" 1960 in her native country. The
only issue for our determination is whether the respondent has the

necessary Continuous physical presence in the United States to meet
the requirements of the statute: It is conceded that the only manner
in which the respondent's immigrant status can be adjusted is by
having her deportation suspended under section 244(a) (1) of the
Immigration and Nationality Act. Counsel's argument to the effect
that the doctrine enunciated in Rosenberg v. - Flout; 874 U.S. 449, is
applicatle to the respondent is without merit since the respondent
has never been lawfully admitted to the United States for permanent
residence.
This board has consistently held that even a brief absence from
the United States destroys the continuous physical presence required
for eligibility for suspension of deporiatibn (Matter of P—, 51. & N.
Dec. 220; Witter of 2—A—N—, 5 L & N. Dec. 298; of. Matter of
235

Inteiim Decision #1483
TY—, Int. Dec. No. 1334, decided 'April 22, 1964; cf. Matter of TV—,
Int. Dec. No. 1444, decided by thi's 'Board April 2, 1965; cf. Matter
of 1--, Mt. Dec. No. 1413, BIA, December 4, 1964). This Board
is cognizant of the recent decision in the TTnited.Statt% Court of
Appeals for the Ninth Circuit in liradman v. Immigration and
Naturalization Service, 829 F.2d 812,, wherein the court .held that
an alien's five-day visit to Mexico did not, as a matter of law, interrupt the continuity of his stay in the United States so as to
disentitle him to discretionary relief against deportation. In our
opinion the administrative decisions cited above should be adhered
to.
Section 244(a) supra, when enacted on June 27, 1952, made signifieant and substantial revisions in the then existing provisions of
section 19(c) of the Immigration Act of 1917, as amended, relating
to suspension of deportation. One of the elements relating to suspension of deportation under the Act of 1917 (section 19(c) (2) (b))
required a showing by the alien that he had resided continuously in
the United States for seven years or more and was residing therein
on the effective date of the Act (July 1, 1948; 62 Stat. 1206). The
Immigration and Nationality Act of 1952 broadened the class of
aliens who may apply for suspension of deportation, but was more
restrictive in its requirements, in that, the alien, among other things,
must establish that he had been continuously physically present in
the United States for a period of not less than seven years immediately preceding the date of such application * * *. One of the
questions involved in Taman v. Immigiation and Naturalization
Service, supra, is -nhether the alien's visit to Mexico interrupted his
continuous physical' presence in the United States. Section 101(a)
($3) of the Act defines thEi term."residence" as meaning the place
of general abode; the place of general abode of a person means his
principal, actual dwelling place in fact without regard to intent.
Residence shall be considered continuous for the purposes of sections
350 and 352. of Title III of the Act where there is continuity of
stay but not necessarily an uninterrupted physical presence in a
,foreign state or states _outside the United States.
Section 244(a) (1) of the Immigration and Nationality Act, as
amended by .the Act of October 24, 1962 provides that the Attorney
GeneraL.may, in his discretion, suspend deportation and adjust the
status to that of an alien lawfully .admitted for permanent residence,
in the case of an alien who applies to the Attorney General . for
suspension of •deportation and
(1) isIdeportabin und.eriany law Of the United States except.the provisions
specified in paragraph (2) or this subsection; bils been
236

physically pres-

Interim Decision #1483
ent in the rnited States for a continuum: period of not less than seven
years immediately preceding the date of such application, • * *

To give effect to the changed language in section 244(a) (1) of the
Immigration and Nationality Act it would appear necessary to give
the language its plain meaning and hold ,that any absence from the
United States during the period for which continuous physical
presence is required, no matter how brief, would destroy the continuity of physical presence, and make the alien ineligible for suspension of deportation. A cardinal rule of statutory construction is that
when Congress amends a law, the amendment is made to effect some

purpose and change in the law (Mogts v. Lyman Rickey, 189 F.2d
130, cert. den. 342 U.S. 887). If the Congress in enacting section
244(a) of the Immigration and Nationality Act, as amended in
October 1962, intended to permit physical absence from the United

States it could have required only that an alien have seven years'
continuous residence and not seven .years' continuous physical
presence.
The language of the statute is clear and unambiguous. Congress,

unquestionably, recognized the difference between the term, "continuous - residence" in the Immigration Act of 1917, as amended, and
the term "continuous physical presence" in the Immigration and
Nationality Act of 1052, as amended. The continuous physical
presence - requirement for suspension of deportation has been interpreted by several of the United States courts. The court in
McLeod v. Peterson, 283 F.2d 180, held that an alien's absence from

the United States while in Canada for approximately one year during the seven-year period required for continuous physical presence
did not break the continuity of his physical presence in the United
States. McLeod, supra, -Is readily distinguishable from the facts in
Wadman.v. Immigration and Naturalization Service. In the McLeod case the court held that because Government agents had improperly induced McLeod, an applicant for suspension of deportation, to leave the United States the Government was prevented or
estopped in claiming that his absence in Canada broke his continuous
physical presence for suspension of- deportation. In U. S. ex rel.
Bruno v. Sweet, 133 F. Supp. 3, one of the questions presented was
whether the alien had been continuously physically present in the
United States for ten years to qualify for suspension of deportation
under section 244(a) (5) of the Immigration and Nationality Act.
In the latter case, the alien had gone to Canada in January 1948 for
the purpose of obtaining an immigrant visa. He was deported from
Canada to the United States by Canadian officials on the same date.
237

Interim Decision 4E1483
The court held his departure from the United States to Canada for
a period of less than one day broke his period of continuous
physical presence in the United States (cf. At renow-Flores v. Hoy,
262 1".2d. 667).
The Congress of the United States in amending section 244(a) of
the Immigration and Nationality Act on October 24, 1962 (Public
Law 87-885) had an opportunity to change the terminology of the
statute to require continuous residence in the United States instead
of continuous physical presence. Congress failed to make any such
change in the continuous physical presence requirements of section

-244(a) (1) and (2) of the Immigration and Nationality Act, as
amended, except for aliens who served. a minimum period of 24
months in an active duty status in the armed forces of the United
States (section St i(b) of the Act). For the reasons set forth, we
affirm our prior administrative decisions to the effect that any absence during the period reqiiired by statute, no matter how brief,
• destroys the continuous physical presence required for eligibility for
suspension of deportation. Clearly, the term "continuous physical
presence" can in nowise be equated with the term "continuous residence."
.
• After carefully considering all the evidence of record, together
' with counsel's representations on appeal, we End nothing therein
that warrants any change being made in the decision of the special
inquiry officer who has denied the alien's application for suspension
of deportation but granted her permission to depart voluntarily
from the United States, in lieu of deportation, which is the maximum
discretionary relief available to her. Accordingly, the folio-wing
order will be entered.
ORDER: It is ordered that the appeal be dismissed.
-