Interim Decision #2905

MATTER OF PORTALES,

et al.

In Exclusion Proceedings
A-24712281
Decided by Board May 14, 1982

(1) Cuban applicants, who were granted refugee status by Peru and were permitted to
live and be employed without restriction in that country, are held to be firmly resettled
in Peru prior to their arrival in the United States, and, therefore, not entitled to refugee
status in this country.
(2) Notwithstanding the living and employment conditions experienced by the Cuban applicants in Peru, they are deemed firmly resettled in the absence of facts necessary to
establish that the conditions of their residence were substantially and consciously restricted
by the authorities of that country. •
(3) In view of the fact that a grant of an applicant's request for asylum in the United
States is limited to 1 year, eubjeet to annual review, and may be terminated for several
reasons including changed circumstances in the asylee's country, it is not significant as
to the issue of resettlement that Peruvian refugee documents issued to the applicants
were only valid for a2-year period.
(4) An applicant whose request for asylum is granted does not enter the United States as
a lawful permanent resident since that status is acquired, if at all, only after the alien
has been physically present in the United States for at least 1 year from the date he was
granted asylum.
EXCLUDABLE; Act of 1952—Sec. 212(a)(20) (5 U.S.C. 11820/C2011 — Immigrants—not in
possession of valid, unexpired immigrant visas or other
valid entry documents
ON BEHALF OF SERVICE:

ON BEHALF OF APPLICANTS:

Philip M. Zyne, Esquire
Walters, Costanzo, Miller & Russell
Suite 500, 330 Building
330 North Biscayne Boulevard
Miami, Florida 33132

Leonard Leopold

John C. Midanek
General Attorneys
Hurwitz
Appellate Trial Attorney

aorald S.

By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

In a decision dated September 24, 1981, an immigration judge found
the applicants excludable under section 212(a)(20) of the Immigration _
and Nationality Act, 8 U.S. C. -1192(v.)(20), as intending immigrants not
in possession of valid immigrant visas or other valid entry documents,
denied their requests for asylum and withholding of deportation, and
289

Interim Decision #2905
ordered them excluded and deported. The applicants have appealed.
The appeal will be dismissed.
Applicants, eight natives and citizens of Cuba (see Appendix), participated in the exodus from that country in the Spring of 1980 when they

flew to Peru with approximately 400 other Cubans. The applicants lived
in Lima, Peru, between April 1980 and September 16, 1981, when they
departed on a commercial airline for Miami, Florida, seeking admission
to the United States as refugees. As the applicants did not appear to the
inspecting officers to be admissible, they were detained and placed in
exclusion proceedings.
At their exclusion hearing, which began on September 18, 1981, and
concluded on September 24, 1981, the applicants, who were represented
by counsel, conceded excludability under section 212(a)(20) of tlic Act,
admitting that they were aliens, that it was ,their intent to live and
work in the United States, and that they did not have immigrant visas
or other valid entry documents entitling them to enter this countrk. The
applicants were properly found excludable smiler section 212(s)(20) of
the Act. Matter of Castellon, 17 I&N Dec. 616 (BLA. 1981).
The applicants renewed their requests for asylum, previously, denied
by the District Director, with the immigration judge, claiming persecution based on political opinion.' Their applications (Form I 589) reflect,
with one exception, that neither the applicants nor any member of their
families have ever been imprisoned or otherwise persecuted in Cuba,
that they have not participated in any specific, acts of political expression 'or organizations considered hostile to the interests of the Cuban
government, and that with the exception of seeking asylum at the
Peruvian Embassy in Havana in April 1980, they have never been politically active or expressed opposition to the Castro regime. One of the
applicants was imprisoned for 5 years, between 1966 and 1971, for
expressing his opposition to Castro and the Communist Party. He continued to live and work in Cuba following his release in 1971 without
-

further incident. All of the applicants opposed the present government
in Cuba and believed that they would be imprisoned if returned to that

country because they -sought asylum in the Peruvian Embasy. Their
applications further reflect that they were granted refugee status by
Peru.
The record contains a State Department telegram from the American
Embassy in Lima, Peru (Ex. 16), which states that the applicants were
given nonimmigrant resident refugee status, that with this status the
applicants are entitled to work, attend school, practice their religion,
' An application for asylum under section 208(a) of the Act, 8 IL S.C. 1158(a), made after
or deportation proceedings shall also be considered as a request
for withholding of exclusion or deportation pursuant to section 243(h) of the Act, 8 U.87C.
1258(h). 8 C.F.R. 208. See Matter oA,Rodriguez-Pa(ma, 17 I&N Dec. 465 (BIA 1980).
the institution of exclusion

•

240

Interim Decision #2905
and are required to pay taxes. It states that the refugee documents
issued by Peru to the applicants were valid for 2 years. The telegram
further states that the applicants are still considered refugees in Peru
and are returnable to Peru as such.
The applicants testified that during the 16 months they lived in Peru
the government provided the Cuban refugees there, including the
applicants, with tents and food, and Medical services were provided on
an emergency basis only. They testified that the Peruvian economy was
poor, that unemployment was high, and that they were not able to find
employment or afford permanent housing.The applicants admitted that
they could freely travel throughout Peru and were not prohibited, from
seeking employment. They also admitted that the conditions under which
they lived in Peru were not the result of discrimination but rather the
economic conditions of that country. They stated that they made no
attempts to regularize their status in Peru, that it was not their intent
to permanently reside there, and that they considered themselves transients ultimately destined for the United States
At the conclusion of the hearing, the immigration judge denied the
applicants' requests for asylum and withholding of deportation. He found
that the applicants had not established that'they would be persecuted if .
returned to Cuba. He further found that they had been firmly resettled
in Peru, that they had been granted asylum in that country, and that
they were therefore not eligible ft. r the requested relief.
We conclude that the applicants' requests for asylum and withholding
of deportation were properly denied. An applicant for asylum under
section 208(a) of the Act must show that, if deported; he would be
subject to persecution based on his race, religion, nationality, member
ship in a particular social group, or political opinion. To meet this burden
of proof, an alien must demonstrate' a clear probability that he will be
persecuted if returned to his country or a well-founded fear of such
perseeutinn. 8 C.F.R. 208.5. See Matter of Dunar, 14 I&N. Dec. 310
(BIA. 1973).
The applicants have not shown that they will be persecuted if returned
to Cuba. The mere assertion of persecution is not sufficient. Matter of

=

Castellon, supra. The record reflects that neither applicants nor their

families have been arrested, imprisoned, or otherwise persecuted in
Cuba. It reflects that the applicants have not been politically active and
have not participated in organizations considered hostile to the interests
of the Cuban government. Although the applicants sought asylum in the
Peruvian Embassy, they were issued valid passports and exit permits
by the Cuban government and permitted to lawfully depart that country
without incident The only applicant who claimed that he was imprisoned for publicly expressing his opposition to the' Castro regime has

lived in Cuba since 1971 without further incident. We find no evidence
241

Interim Decision #2905
that the applicants were persecuted nor a clear probability that they-will
be if returned to Cuba.
We further conclude that the applicants, prior to their arrival in the

United States, were firmly resettled in Peru and that they are not
entitled to classification as refugees. An alien is deemed firmly resettled
if offered permanent resettlement by another country as a consequence
of his flight from persecution, unless it is established that the conditions
of his residence in that country have been substantially and consciously
restricted by the authorities of that country. 8 C.F.R. 207.1(b),208.8(f)
(1)(5), and 208.14. See Rosenberg v. Yee Chien Woo,

402 U.S. 49 (1971);
14

Matter of Lam, Interim Decision 2857 (BIA 1981); Matter of Kwan,

I&N Dec. 499 (R.C. 1973).
The record establishes that the applicants sought asylum in the
Peruvian Embassy in Havana, Cuba, and that as a result they were
granted refugee status' by Peru and flown out of Cuba. The Peruvian
government provided the applicants with food, limited medical attention,
and the only available living accommodations, a tent city. The applicants
were permitted to freely travel throughout the country, were authorized to accept employment, attend school, and practice their religious
preferences. They were issued refugee documents valid for 2 years. The
applicants fled Cuba, claiming persecution. That claim was extinguished

when they were granted refuge in Peru. Furthermore, there is no indication in the record that the Peruvian government intends to terminate
the refugee status previously granted the applicants or that the refugee
documents issued to them are not renewable.
The applicants argue on aPpeal that the living conditions they were
subjected to in Peru, their inability to obtain suitable employment, and
the 2 year limitation on the validity of their refugee documents clearly
demonstrate that they were not firmly resettled. We disagree. The
living conditions and inability to obtain employment experienced by the
applicants appear related to Peru's ecomony, rather than the conscious
-

restriction of benefits by the authorities of that country. The applicants

were authorized to accept employment and it is not clear that they
exhausted existing employment opportunities. Nor is it significant that
the refugee documents issued the applicants were only valid for a 2-year
period. A grant of an applicant's request for asylum in the United States
is limited to 1 year, subject to annual review, and may be terminated for
several reasons, including changed circumstances in the asylee's country.
8 C.F.R. 208.8(e), 208.10(e),and 208.15. An applicant whose request for
asylum is granted does not enter the United States as a lawful permanent resident. That status is given, if at all, only after the alien has been
physically present in the United States for at least 1 year from the date
he was granted asylum_ 8 U.14'..K. zo9.1 and 209.2.
Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.
242

Interim Decision #2905

APPENDIX
A24 712 279

GONZALEZ, Sol Angel

A24 712 280

FERNANDEZ, Jose Luis

424 712 281

PORTALES, Victor

424 712 299

MARTINEZ, Pedro Danislao

424 712 300

HERNANDEZ-Arencibia, Martha

A26 002 172

PEREZ-Aguiar, Carmen Nancy

A26 012 882

BARRERA-Perez, Niurka

A26 012 883

RARRERA-Perez, Marialys

243 .


Interim Decision #2064

MATTER OF LANE

In Deportation Proceedings
A-19698248
Decided by Board November 24, 1970
Admissions made by an alien to a Service officer in a preliminary interrogation at a Travelers Aid Society office, in a non-custodial setting, were not
tainted by the absence of a warning of the type used in Miranda v. Arizona, 384 U.S. 436 (1966), and constitute competent evidence to support
an order of deportation.
:BARGE:

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251 (a) (2)]—Visitorremained longer.
,

N BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

David Carliner, Esquire
425 - 13th Street, N.W.
Room 932
Washington, D.C. 20004
(Brief filed)

Irving A. Appleman
Appellate Trial Attorney
(Brief filed)

Respondent appeals from the special inquiry officer's order reiring her deportation. Counsel contends that the special inquiry
leer's reliance upon respondent's admissions to Service officers
fore the deportation hearing was improper because they were
Kle without respondent having been advised of her right to
insel and her right to refuse to answer questions. The appeal
I be dismissed.
['he facts have been fully stated by the special inquiry officer.
e following summary is taken from testimony of Service witses, Mr. Morelli and Mr. Fell; respondent refused to testify on
laim of privilege. On March 12, 1970, Mrs. Ziegler, an emyee of the Travelers Aid Society, Richmond, Virginia, called
Titcomb of the Immigration Service and informed him that a
titute female of Irish nationality was in her office seeking asance. Mr, Titcomb advised Mr. Morelli, a Service investigator,
he fact. At about 2 p.m. of the same day, Mr. Morelli accom-

632

Interim Decision #2064
panied by Mr. Fell, another Service official, went to the Society's
office, a short distance away. The officers identified themselves to
the respondent. Since she was not considered to be in custody, she
was not, prior to questioning, given the warning concerning the
right to representation and to remain silent, which is given to a
witness who is in custody. Mr. Morelli questioned her and found
out she was an alien who had been admitted from Canada on
June 8, 1966, as a temporary visitor for three weeks, and that she
was unlawfully in the United States since she had remained
longer than she had permission to remain. Mr. Morelli had the
authority to permit respondent to leave the United States without
the institution of deportation proceedings. He told respondent
that she would be permitted to leave voluntarily if she could arrange for transportation to Canada; if she could not, he would
take her into custody and commence deportation proceedings.
Mrs. Ziegler offered to determine whether her organization would
provide transportation. This would take time. Mr. Morelli, therefore, suggested that respondent accompany him to the Service
office to await the outcome of Mrs. Ziegler's efforts. Respondent,
Mr. Morelli, and Mr. Fell walked to the Service office. At about
3:15 p.m., Mrs. Ziegler called with the information that her organization could not pay for transportation. Mr. Morelli then advised the respondent she was under arrest. He gave her a warning about her rights. He took a statement from her in which she
admitted alienage and the manner of her entry. He had not considered respondent under arrest until he told her she was under arrest; however, had she attempted to leave the Immigration office
before being placed under arrest, he would have attempted to restrain her.
At the deportation hearing, counsel asked that Mrs. Ziegler and
Mr. Titcomb be called as witnesses. He hoped to establish that before Mrs. Ziegler called the Service, she had such custody over respondent that respondent was actually under arrest when the
Service officers arrived. Mr. Morelli testified that there had been
no arrangement with Mrs. Ziegler for the detention of aliens illegally in the United_c3tates. Counsel's request was denied.
After oral argument on the appeal, counsel submitted a letter
stating that Mrs. Ziegler and other employees of the Travelers
Aid Society were willing to give depositions concerning the matter if proceedings were reopened. There is no indication as to the
nature of the testimony. Counsel asks that the proceedings be reopened for the taking of such testimony. The record also contains
633

Interim Decision #2064
the Service memorandum in opposition to the request and counsel's reply.
The record establishes that respondent is deportable. The statements made at the Society's office as to alienage and the nature of
her entry establish this. The interrogation there did not have to
be preceded by a warning of the type used in Miranda v. Arizona,
384 U.S. 436 (1966). Such warning is required in a custodial setting or when the person questioned is the subject of a criminal investigation. Neither of these situations existed here. There was
merely an on-the-scene interrogation, reasonable in nature, relatively short in duration, and there was an absence of a reasonable
possibility that there would be a criminal prosecution.
The absence of a custodial setting before the Service officers
came is clear. Respondent was never in Mrs. Ziegler's custody.
The record establishes that Mrs. Ziegler did not detain respondent prior to the arrival of the Service officers. Moreover, since
Mrs. Ziegler is a private citizen, a custodial setting requiring a
Miranda warning would not have existed even if she had attempted to detain respondent, Yates v. United States, 384 F.2d
586, 588 (5 Cir., 1967). The absence of a custodial setting, after
the Service officers came and when they first questioned respondent, is clear. Respondent did not testify that she had remained
for the questioning at the office of the Society because of the assertion of custody by the Service. Mr. Morelli testified that respondent was not arrested at the Travelers Aid office. The Service
officers did not go to Mrs. Ziegler's office to arrest respondent.
They knew only that a destitute alien was there. They did not
know she was illegally in the United States. Even if they found
her to be illegally in the United States, they were not required to
take her into custody. They could have authorized her to depart
without taking her into custody, 8 CFR 242.5. They went to determine the facts. Thus, the absence of a Miranda warning did
not taint the admissions made at the Society's office, Yam Sang
Kwai v. INS, 411 F.2d 683 (D.C. Cir., 1969), cert. denied 396
U.S. 877; United States v. Cho-Po-Sun, 409 F.2d 489 (2 Cir.,
1969), cert. denied 396 U.S. 864; Nason v. INS, 370 F.2d 865 (2
Cir., 1967); Amaya v. United States, 247 F.2d 947 (9 Cir., 1957),
cert. denied 355 U.S. 916; United States v. Montez-Hernandez,
291 F. Supp. 712 (Cal., 1968); United States v. Mendoza-Torres,
285 F. Supp. 629 (Ariz., 1968) ; Tsimounis v. Holland, 132 F.
Supp. 754 (E.D. Fa.. 1955), affirmed 228 F. 2d 907 (3 Cir.,
1956); Matter of Methure, Interim Decision No. 2035 (BIA,
1970); Matter of Au, Interim Decision No. 1981 (BIA, 1969). See

634

Interim Decision 32064
United States v. Prudden, 424 F.2d 1021, 1028 (5 Cir., 1970);
Bendelow v. United States, 418 F.2d 42 (5 Cir., 1969); Lucas v.
United States, 408 F.2d 835 (9 Cir., 1969).
Counsel cites United States v. Dickerson, 413 F.2d 1111 (7 Cir.,
1969) , holding that Miranda warnings must be given to a tax-

payer when a federal tax investigation moves from a civil into a
criminal one. Dickerson turns on the distinction between a civil
and a criminal investigation. The Service interrogation at the Society's office was for the purpose of determining whether the respondent was an alien and, if so, whether she had the right to remain in the United States. This is a civil matter. There is no
showing that it ever went beyond this stage. Furthermore, Dickerson expresses a minority rule, United States v. Brevik, 422
F.2d 449, 450 (8 Cir., 1970), cert. denied 397 U.S. 1056.
The admissions made by the respondent at the Service office
after she had been taken into custody were preceded by a Miranda warning. These admissions were also competent evidence to
support the order of deportation. Therefore, even assuming some
infirmity in petitioner's questioning at the Travelers Aid office,
the deportation order would not be set aside, Shing Hang Tsui v.
INS, 389 F.2d 994, 995 (7 Cir., 1968).
The special inquiry officer properly denied the issuance of subpoenas for Mrs. Ziegler and Mr. Titcomb. Counsel had failed to
establish what he would prove by the testimony of these witnesses. He had not shown that they were not available. The finding of deportation does not rest upon the testimony of these individuals. Furthermore, whether or not respondent had been
detained before the Service officers arrived was not material.
Counsel's request on appeal that the case be remanded for the
taking of depositions from employees of the Travelers Aid Society is denied. Counsel does not establish this evidence is material. In fact, he fails to show what he would prove by this testimony, 8 CFR 287.4.
ORDER: The appeal is dismissed.

635


Interim Decision #2374

MATTER OF CASTILLO—PINEDA

' In Exclusion Proceedings
A-18326930 "

Decided by Board April 16, 1975
Applicant initially entered the United States for permanent residence on January 10, 1969
as the spouse of a United States citizen. The'inarriage took place in the United States
July 8, 1968, but was annulled ab initio for fraud on January 15, 1969. Applicant
subsequently applied for admission on August 17, 1969, follwing a 10 day vacation in
Mexico as a returning resident alien. He was found excludable under section 212(a)(20)
of the Immigration and Nationality Act for lack of a valid immigrant visa, and under
section 212(a)(14) of the Act, for lack of a valid labor certification. This decision was
correct. because since the marriage was annulled ab initio, no basis exists for his
classification as a permanent resident alien nor is he exempt from the labor certification
requirement.

EXCLUDABLE: Act of 1952 — Section 212(a)(20) [8 U.S.C. 1182(a)(20)) —Immigrantnot iu possession of a valid immigrant visa.
Act of 1952—Section 212(a)(14) (8 U.S.C. 1182(a)(14))--Immigrantnot in possession of a valid labor certification.
ON BEHALF OF APPLICANT:

ON BEHALF OF SERVICE:

Irving A. Appleman, Esquire
Appellate Trial Attorney

Soil J. Schnitz, Esquire
600 South Michigan Avenue
Chicago, Illinois 60605

This is an appeal from a decision of an immigration judge dated
November 19, 1969, finding the applicant excludable under the provisions of section 212(a)(20) and section 212(a)(14) of the Immigration and
Nationality Act. On June 14, 1972, the Board entered an order terminating the exclusion proceedings pursuant to the unreported decision of
Matter of Lerma -Acosta, A-30749574 (BIA June 13, 1972. The Board
deferred execution of its order in this case indefinitely until it considered
and rendered a decision on the Service motion for reconsideration in the
unreported decision of Matter of Juan Hernandez-Almaquer,
A-14231996 (BIA June 14, 1972), involving the same issue. In Matter of
Maldonado-Sandoval, 14 I. & N. Dec. 475 (BIA October 31, 1973 as
amended June 7, 1974) and unreported Matter of Juan HernandezAlmaquer, A- 14231996 (BIA October 31, 1973), the Board receded from '
the position taken earlier in Matter of Lerma-Acosta, supra. On Feb- •
274

Interim Decision #2374
ruary 8, 1974, the Service submitted a motion requesting that the
Board's order of June 14, 1972 be withdrawn, and that the case be
remanded to the Service. The motion will be denied. However, the
Board's order of June 14, 1972 will be vacated and another order will be
entered dismissing the appeaL
The record relates to an unmarried male alien, 27 years of age, who
was admitted to the United States for permanent residence at Chicago,
Illinois on January 10, 1969. He testified that he departed from the
United States on August 7, 1969 for a short vacation in Mexico and
returned to the United States on August 17, 1969. He applied for
admission as a returning resident alien. His inspection was deferred and
on September 3, 1969 he was served with a notice to appear for a
hearing before an immigration judge to determine his admissibility to
the United States.
The applicant married a citizen of the United States in Cook County,
Illinois on July 8, 1968. Based upon this marriage, he obtained an
immigrant visa for permanent residence from the American Embassy at
Mexico City on January 9, 1969. As the spouse of a United States
citizen, he was exempt from the labor certification requirement of section 212(a)(14) of the Immigration and Nationality Act. The applic'ant's
marriage to his citizen spouse was annulled for fraud in the Circuit
Court of Cook County at Chicago, Illinois on January 15, 1969 (Exh.
7—C). The decree reads in part as follows:
"IT IS ORDERED, ADJUDGED AND DECREED that the marriage between the
plaintiff and defendant be and the same is hereby annulled and dissolved, the same as if
said marriage ceremony had never been entered into and the same is annulled and
dissolved accordingly and the parties are and each of them is freed from the obligation
thereof."

The immigration judge found that since the marriage had been . annulled ab initio, the applicant was not an immediate relative within the
provisions of section 201(b) of the Act and, therefore, was not in possession of a valid immigrant visa at the time of his admission for permanent
residence on January 10, 1969 and was excludable under section 212(a)(20). Also, the immigration judge found that the applicant had been
improperly exempted from the labor certification requirement of section
212(a)(14) and was excludable on that ground as well.
While there is no statute with respect to annulment of marriage, the
proceeding for annulment of marriage is recognized by the courts of
Illinois, Cardenas v. Cardenas, 12 111. App. 2d 497 (1957), 118 N.E.2d
262 (1957). Under the court decisions in Illinois, it is clear that after a
decree of nullity a marriage is void ab initio, and not merely from the
date of the decree. SeePeople ex rel. Byrnes v. Retirement Board, etc.,
272 Ill. App. 59 (1933). To further support the position that an annulment in Illinois renders a marriage void ab initio, the court in Long, v,
275

Interim Decision #2374
Long, 15 Ill. App. 2d 276 (195'7), 145 N. E.2d 509 (1957), states in part as

follows:

"The purpose of an'annulment proceeding is to have a marriage which is void or
voidable judicially declared void. In such a proceeding the marriage is not recognized,
the theory being that no valid marriage ever came into existence (55 C.J.S. Title
Marriage. sec. 48, p. 922)."

The doctrine enumerated in Rosenberg v,Fleuti, 374 U.S. 449 (1963),
is that an innocent, casual and brief excursion by a resident alien outside
the country's borders may not have been "intended" as a departure
disruptive of his resident alien status and that he, therefore, may not
have subjected himself to the consequences of an "entry" into the
United States on his return. The pertinent portion of secton 101(a)(13)
interpreted by the Supreme Court in the Fleuti case, by its terms,
related only to "an alien having lawful permanent residence in the
United States."
The applicant's immigrant visa (Exh. 4), provided by the Service at
the exclusion hearing, shows that the applicant was admitted to the
United States as an immigrant on January 10, 1969 at Chicago, Illinois
'

in the nonquDta classification IR-1, the spouse of a United States citizen. In 'order to qualify for, admission as a returning resident alien as

specifically specified in the statute, it was necessary that (1) the applicant have the status of a lawfully admitted immigrant for permanent

residence and (2) that if he had tliat status, he was returning from a
temporary visit abroad. Accordingly, 'when the immigration inspector
had some doubt about this applicant's immigrant status, he properly
detained him for' exclusion 'proceedings, Matter of Maldonado—
Sandoval, supra.
Annulment; of the applicant's marriage ab initio meant that it was
decreed that no valid marriage ever existed_ At the time 'of his original

entry into tlui United States on January 10, 1969, the applicant was not
the spouse of a citizen of the United States; and as an alien born in an
independent country of the Western Hemisphere, he was not exempt
from the labor certification requirement. Hence, the applicant did not
acquire lawful pernfanent residence on January 10, 1969.
Since the applicant was not an alien having lawful permanent residence in the United States, his attempted entry into the United States
after a brief absence' in Mexico is not within the ambit of Rosenberg v.
Fleuti, supra. Under the explicit terms of section 101(a)(13) of the Act,

the applicant's return to the United States even though after a brief
visit, is an "entry." Thus, an adjudication of the applicant's admissibility
in exclusion proceedings is proper.
Our evaluation of. the evidence convinces us that it has been estabUbhed that the respcirident is not a lawful permanent resident alien. We
are satisfied that the record supports the immigration judge's finding
276

Interim Decision #2374
that the applicant is excludable for admission under the provisions of
section 212(a)(20) and section 212(a)(14) of the Act. After reconsideration of our previous decision, the following order will be entered.
ORDER: The order of the Board of Immigration Appeals dated June
14, 1972 is vacated.
Further order: The motion for reconsideration and remand to the
immigration judge is denied.
Further order: The appeal is dismissed.
Irving A. Appleman, Board Member, abstained from consideration of
this case.

277


AfAiihR OF

P—

In VISA PETITION Proceedings
A-12111162

Decided by Board July 14, 1961
Expatriation—Act of March 2, 1907—Automatic reacquisition of foreign nationality—Standard of proof to establish voluntary acceptance of foreign
nationality.
(1) Current standard of proof in expatriation cases applies to conduct within
section 2 of Act of March 2, 1907. Where foreign nationality was acquired
solely by operation of law, proof of "voluntary acceptance" through overt
acts must be supported by clear, convincing and unequivocal evidence to
warrant finding of loss of citizenship.
(2) Where petitioner's father, naturalized in 1903, reacquired Italian citizenship in 1914 under automatic provisions of Italian Nationality Law of June
13, 1912, evidence that he obtained and used Italian passport in traveling to
Italy in 1922 does not establish "voluntary acceptance" of Italian nationality with requisite degree of proof in view of unexplained motivation in
using Italian passport, absence of evidence of other overt acts of acceptance,
and fact that application which he made for U.S. passport in Italy the following year, in 1923, is construable as manifesting a continuing intention to
retain U.S. nationality.
(3) Petitioner's voting in Italian political elections and service as a conscript
in the Italian Army, during which time he took an oath of allegiance to
the Italian Crown, no not constitute expatriating acts when he was improperly advised prior thereto by official sources that he had no claim to
U.S. citizenship.

BEFORE THE BOARD

DISCUSSION: The petitioner appeals from the denial of his visa
petition by the District Director, New York District, dated January 27, 1961. The District Director found that the petitioner did
not acquire United States citizenship at birth because his father
expatriated himself prior to the birth of petitioner. The appeal will
be sustained.
The petitioner's father, A—P—, was naturalized in the United

States on April 20, 1903. Records of the Passport Office of the
Department of State show that A—P— executed two affidavits at
the Consulate General at Naples. He applied for a United States
passport at the American Consulate General on October 23, 1923, and

he stated in his first affidavit that he had arrived in Italy on Janu362

ary 20, 1922, and had traveled from the Unitod Staten with an

Italian passport issued by the Italian Consul General at Cincinnati,
Ohio. In the second affidavit, on January 25, 1924, he stated that
he (A—) was in Italy from 1911 until 1914, during which stay his
son, P—P— (petitioner), had been born. P—P— was born on
October 30, 1914.
It was the view of the State Department that A—P— expatriated
himself on July 1, 1914 under the provisions of the first paragraph

of section 2 of the Act of March 2, 1907,' by having acquired
Italian nationality under the provisions of Article IX(3) of the
Italian Nationality Law of June 13, 1912. 2 It was the view of
our Government that the loss of United States citizenship depended
not only upon the reacquisition of Italian nationality, but upon the
United States citizen's having "evidenced a voluntary acceptance
of that nationality by obtaining and using an Italian passport for
his travel to Italy in 1922." The Department of State's decision
that A—P— had lost United States citizenship was communicated
to the Secretary of Labor on October 3, 1988, and a report of expatriation in the name of A—P— was transmitted to the Secretary
of Labor with a letter of January 20, 1934.
P—P—, petitioner, first applied for a United States passport on
May 18, 1933, before a United States Vice Consul at Rome, Italy.
The application for passport executed by petitioner was disapproved
by the Department of State on October 3, 1933, on the ground that
the applicant had not acquired United States citizenship at birth,
since his father had expatriated himself prior to the applicant's
birth.
P—P— next applied for documentation as a citizen of the United
States at the American Consulate General at Naples, Italy, on
June 15, 1960, by executing an application for registration as a
ritiven of the United States. In connection with his application,
Act of March 2, 1907, section 2, provides: "That any American citizen
shall be deemed to have expatriated himself when he has been naturalized in
any foreign state in conformity with its laws, or when be has taken an oath
of allegiance to any foreign state.
"When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state,
it shall be presumed that he has ceased to he an American eiti7sn, and the

place of his general abode shall be deemed his place of residence during said
years : Provided, however, That such presumption may be overcome on the
presentation of satisfactory evidence to a diplomatic or consular officer of the
United States, ender siieb rules and regulations as the Department of State
may prescribe... (34 Stat. 1228: 8 U.S.C. 17.)
Article IX of the Italian Nationality Law of June 13, 1912, provides: "He
who has lost citizenship * * * may reacquire it: * * * (3) After two years
ro,bionce In 111P Kingdom if the loss of citizenship has been due to the
acquisition of foreign citizenship."

-363

he stated that he had taken an oath of allegiance to the Italian Crown
at Rome, Italy, in 1935 while serving as a conscript in the Italian
Army and that he had voted in Italian political elections on a
number of occasions, because he had been advised that he had no
claim to United States citizenship.
The Department. of State reversed its previous decision in the
instant case and decided that P—P— did acquire United States citizenship at time of birth on October 30, 1914, under section 1993,
Revised Statutes; that his father, A—P—, had not lost United States
citizenship at that time. This record contains a memorandum from
the Director of the Passport Office to the Assistant Director for
Citizenship, Immigration and -Naturalization Service, New York,
stating the Department of State belief that in the light of "recent

important court decisions," particularly "the Supreme Court decision in the case of Nishileawa v. Dulles," 356 U.S. 129 (1958), "an
administrative decision that a person had lost United States citizenship will be upheld by the courts only if the decision is based on
an act which was both voluntarily performed and expressly made
expatriating by statute."
It had been the long-standing view of the Department of State and
the Immigration and Naturalization Service, supported by judicial
and administrative decisions, that expatriatipn under the first paragraph of section 2 of the Act of March 2, 1907 may he based upon
the fact that a person has acquired a foreign nationality solely by
operation of (a foreign) law followed by overt acts or oral or
written acts voluntarily performed, which were regarded as "acceptance" of the foreign nationality. For this view, the Immigration and Naturalization Service continues to contend. The Service
representative points out that the Department of State has in the
past considered that the Italian nationality conferred under the

provisions of the Italian Nationality Law of 1912 was "voluntarily
accepted" when a naturalized American citizen of Italian origin
applied for and accepted an Italian passport or identity card
describing him as an Italian national, that the act of accepting the
Italian passport or identity card should be considered as prima facie
evidence of the acceptance of Italian nationality under the provisions of the Italian law. The Service representative declares that
this view was reaffirmed by this Board as recently as 1955 in Matter
of M . 6-590 (B.I.A., 1955).
—

It seems to be the view of the State Department, expressed in the

letter from the Director of the Passport Office, that their decision
in this matter declares a totally new policy dictated by recent Supreme Court decisions. The State Department letter sets forth
the past view and suggests that it would be found now that a
person has lost United States citizenship only if the act on which
364

the decision is based "was both vnlnntarily performed and expressly
made expatriating by statute." The Service representative argues
that the Nationality Act of 1940 and the Immigration and Nationality Act of 1952, and the court decisions interpreting these two laws,
should not be made to apply to the period 1907 to 1941; that the
two later Acts contain different provisions with regard to denaturalization and expatriation of a dual national; and that it is a mistake
at this late date to attempt to apply the present rules, decisions and
statutory provisions regarding burden of proof and denaturalization
to the period covered by the Act of March 2, 1907.
It is our view that the State Department in the instant case is
not urging a completely new standard, nor a new standard necessary
to conform or adopt our traditional view of the Italian Nationality
Law of June 13, 1912 to the issuance of a passport to P—P—.
Without re-examining the Supreme Court decisions of the last ten
years, it may be stated unequivocally that the Government now has
a more severe burden of proof in cases regarding expatriation than
the Government carried in the past. The facts in the instant case
do not satisfy the requirement that the Government establish by
clear, convincing and unequivocal evidence that the father of the
petitioner, A—P—, "accepted" Italian nationality.
A—P— reacquired Italian nationality in Italy on July 1, 1914,
by operation of the Italian Nationality Law. The State Department
records show that he left Italy in 1914, presumably after the birth
of his son (in October) that year, and was readmitted to the United
States. At that time there was no such thing as a reentry permit,
and it must be assumed that he was readmitted to the United States
as a returning citizen. The act of "acceptance," according to the
State Department and Immigration Service, which resulted in
A—P-- losing his United States citizenship, was his returning to
Italy January 20, 1922, on an Italian passport. However, he applied
at the United States Consulate in Naples, Italy; for a United States
passport on October 23, 1923, indicating that he had not abandoned
his United States citizenship and hoped to assert it by again obtaining a United States passport. The record does not show why
he obtained an Italian passport (issued at Cincinnati in 1922), but
it may be assumed that he accepted it, not voluntarily, but because
it was the only passport he could obtain at the time.
At no time was it held by the courts that remaining in his native
country for more than two years automatically expatriated a naturalized citizen under the 1907 Act, but this rule was established and
accepted by administrative officials only after extensive litigation.
Leong ifwai Yin v. United States, 31 F.2d. 738 (CA. Hawaii,
1929) ; United States v. Eliasen, 11 F.2d 785 (D.C. Wash., 1926) ;
Camara.° v. Tillinghast, 29 F.2d 527 (CA. Mass., 1928), and many
365

other cases. At the time petitioner's father returned to Italy with
an Italian passport in 1922, the law was not firmly established.
There'seems to be no record, but it is reasonable to assume that he
may have tried to secure a United States passport in this country
and been refused due to the fact that he had remained in Italy more
than two years (not of itself a factor causing automatic expatriation). The fact that he applied in Italy for a United States passport the following year indicates that this "overt act" of accepting
an Italian passport was not voluntarily performed and., therefore,
A P— had not yet lost his United States citizenship at the time
his son was born in October of 1914. It is true that A—P— then
remained in Italy until his death in August 1932. Having been
denied a United States passport, there was no way he could return

to the United States except under the Italian quota.
P—P— at the age of 18 applied for a United States passport on
May 18, 1933. The fact that he applied at that time indicates that

he and his father had never given up their claim to United States
citizenship and were still hoping to assert it successfully. Although
petitioner voted in Italian political elections and served as a conscript in the Italian Army, during which time he took an oath of
allegiance to the Italian Crown, it is admitted that these acts do
not constitute expatriation when the claimayt has been improperly
advised that he had lost his United States citizenship . 8
In Matter of Al , 6 590 (B.I.A., 1955), cited by the Service representative in oral argument, the Italian national returned to Italy in
1910; he not only received an Italian card of identity describing
him to be an Italian national, but he disposed of all his property in this country, purchased a business in Italy which he operated until his death in 1928, and never applied for a United
—

-

States passport in Italy after he returned there in 1910. Furthermore, M— did not return to the United States until she was

52 years old. We found in that case that M—'s father did accept
Italian nationality; and that there was no adequate reason for 11
to have waited such a long period before asserting her United
States citizenship. The record in that case was clear as to the
"voluntary acceptance" of Italian nationality following the naturalized citizen's return to Italy. However, in matter
6 15,
we decided that the individual had not lost his citizenship by
performing a "voluntary overt act" manifesting "acceptance" of

—

-

Italian nationality ; th at,t,

p had sati sf actorily

ex pl ained his

'Matter of 5—, 8-221, and Matter of 5—, 8-226, wherein the board held
that acts designated expatriative by statute will not operate to expatriate where
the claimant was unaware that he had United States citizenship ; we limited this
rule to situations where the claimant was misled by a change of interpretation
in the law, or where he was misinformed by government officers and believed
that he had already lost his United States citizenship.

366

failure to return promptly to the United States; that his membership in the Fascist Party had been of a "compulsory nature," to
obtain employment and the other essentials of living, and that each
of these cases must be decided upon its own apparent merits, citing
Hackworth, Digest of International Law, Volume III, p. 213. Both
those cases presented more complete records than does the instant
matter.
The present Act, section 349(a) (1) [8 U.S.C. 1481), provides that
a national of the United States, whether by birth or naturalization,
shall lose his nationality by obtaining naturalization in a foreign
state upon his own application.4 Under the present law a foreign
statute such as the Italian Nationality Law of June 13, 1912 could
not operate to affect a naturalized citizen. However, this was not
the language of the 1907 Act, and the 1907 Act cannot be ignored.
It is still the rule that expatriation occurred under the first para.
graph of section 2 of the Act of March 2, 1907 where a person
acquired a foreign nationality by operation of law (as here under
the Italian Nationality Law of June 13, 1912) followed hy overt

acts -Ooluntarily performed, which may be regarded as "acceptance"
of the foreign nationality. We do believe, however, that the present
standard of proof regarding expatriation applies to the act of "acceptance" of Italian nationality, and proof of that voluntary
acceptance must be clear, convincing and unequivocal.
The present record does not establish that A—P— journeyed to
Italy in 1922 on an Italian passport voluntarily, in the light of the
fact that he applied in Italy for a United States passport the following year. Evidently he made two trips to the Consulate General
at Naples, one in 1923 and one in 1924, because the State Department letter refers to two affidavits executed by him, one on October
23, 1923, and one on January 25, 1924. We conclude that he had
a "continuing intention" to retain his United States nationality,
evidenced by his application for a United States passport in 1923,
and that this record does not establish by clear and convincing
evidence that he "accepted" Italian nationality. It appears that
the change of citizenship was arbitrarily imposed upon A—Pwithout his concurrence, and that P—P— did, therefore, acquire
United States citizenship at birth in Italy in 1914.
ORDER: It is ordered that the appeal be sustained and that the
petition for issuance of nonquota immigrant visa be approved.
+Immigration and Nationality Act, section 349(a) (1), provides: "From
and after the effective date of this Act a person who is a national of the

United States whether by birth or naturalization, shall lose his nationality
by—(1) obtaining naturalization in a foreign state upon his own application,
upon an application filed in his behalf by a parent, guardian, or duly authorized agent, or through the naturalization of a parent having legal custody of
such person. . ." (Emphasis supplied.)

36T


Cite as 27 I&N Dec. 782 (BIA 2020)

Interim Decision #3978

Matter of Pedro Josue JIMENEZ-CEDILLO, Respondent
Decided February 27, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Sexual solicitation of a minor in violation of section 3-324(b) of the Maryland Criminal
Law with the intent to engage in an unlawful sexual offense under section 3-307 is
categorically a crime involving moral turpitude. Matter of Jimenez-Cedillo, 27 I&N Dec.
1 (BIA 2017), reaffirmed.
FOR RESPONDENT: Benjamin R. Winograd, Esquire, Alexandria, Virginia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Gannon, Associate
Legal Advisor
BEFORE: Board Panel: WENDTLAND, GREER, and O’CONNOR, Board Members.
GREER, Board Member:

This case was last before us on July 28, 2017, when we denied the
respondent’s motion to reconsider our April 6, 2017, precedent decision in
Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), where we dismissed
his appeal from an Immigration Judge’s order. On March 20, 2018, the
United States Court of Appeals for the Fourth Circuit remanded the case
for us to further explain our reasoning for concluding that the respondent
is removable under section 212(a)(2)(A)(i)(I) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2018), as an alien convicted
of a crime involving moral turpitude, and is therefore ineligible for
cancellation of removal pursuant to section 240A(b)(1)(C) of the Act,
8 U.S.C. § 1229b(b)(1)(C) (2018). The record will be remanded to the
Immigration Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 23-year-old native and citizen of Mexico who
conceded that he is removable under section 212(a)(6)(A)(i) of the Act as an
alien who is present in the United States without having been admitted or
paroled. On February 11, 2015, he was convicted under section 3-324(b) of
the Maryland Criminal Law upon pleading guilty to knowingly soliciting a
minor, or a police officer who was posing as a minor, with the intent to
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Interim Decision #3978

engage in unlawful sexual activity in violation of section 3-307 of the
Maryland Criminal Law.1 The record of conviction reflects that in October
2014, the respondent communicated via computer and text with an
undercover police officer who was posing as a 14-year-old deaf girl, and he
arranged for them to meet. He was arrested on November 3, 2014, when he
appeared at the meeting point with a soda, condoms, and lubricant.
In Matter of Jimenez-Cedillo, 27 I&N Dec. at 4, we held that the
respondent’s offense is categorically a crime involving moral turpitude. In
reaching that conclusion, we examined the framework for determining
whether a crime involves moral turpitude that the Attorney General set forth
in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008) (“Silva-Trevino
I”), vacated, Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015)
(“Silva-Trevino II”). We subsequently recognized the Attorney General’s
rule that “a crime involving intentional sexual conduct by an adult with a
child involves moral turpitude as long as the perpetrator knew or should
have known that the victim was a minor.” Matter of Silva-Trevino, 26 I&N
Dec. 826, 834 (BIA 2016) (“Silva-Trevino III”) (emphasis added). However,
we noted that our decision there did “not reach crimes commonly known as
‘statutory rape,’” which “do not require a perpetrator to have knowledge of
the age of the victim,” and we reserved “the question whether they are crimes
involving moral turpitude.” Id. at 834 n.9.
In Matter of Jimenez-Cedillo, 27 I&N Dec. at 5, we acknowledged that
in Silva-Trevino III, we had agreed with the Attorney General’s position, but
we noted that “our decision did not foreclose the possibility that moral
turpitude will inhere in some crimes, even if the relevant statute lacks an
element that requires the perpetrator to have some culpable mental state
1

Section 3-324(b) of the Maryland Criminal Law provides:
A person may not, with the intent to commit a violation of . . . § 3-307 of this
subtitle. . . , knowingly solicit a minor, or a law enforcement officer posing as a
minor, to engage in activities that would be unlawful for the person to engage in
under . . . § 3-307 of this subtitle . . . .
Section 3-307 provides, in pertinent part:
A person may not:
...
(3) engage in sexual contact with another if the victim is under the age of 14 years,
and the person performing the sexual contact is at least 4 years older than the victim;
(4) engage in a sexual act with another if the victim is 14 or 15 years old, and the
person performing the sexual act is at least 21 years old; or
(5) engage in vaginal intercourse with another if the victim is 14 or 15 years old,
and the person performing the act is at least 21 years old.

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Interim Decision #3978

regarding the victim’s age.” As we will explain further, we then clarified our
prior decision and held that
a sexual offense in violation of a statute enacted to protect children is a crime
involving moral turpitude where the victim is particularly young—that is, under
14 years of age—or is under 16 and the age differential between the perpetrator and
victim is significant, or both, even though the statute requires no culpable mental
state as to the age of the child.

Id. We therefore determined that “moral turpitude inheres in all violations
of section 3-307” of the Maryland Criminal Law, noting that “[s]ections
3-307(a)(1) and (2) necessarily involve sexual contact with a victim whose
lack of consent is either explicit or implicit,” and that “a defendant can be
convicted under sections 3-307(a)(3), (4), and (5) even if there was a
reasonable mistake as to the victim’s age.” Id. at 4.
The United States Court of Appeals for the Fourth Circuit concluded that
we had “abandoned the Silva-Trevino rule that an offense must require proof
of a culpable mental state as to the victim’s age in order to qualify as a crime
involving moral turpitude.” Jimenez-Cedillo, 885 F.3d at 297. Finding that
we put forth a new position “that mental culpability as to age is not required
before a law prohibiting the sexual touching of a minor may be deemed a
crime involving moral turpitude,” the court remanded for us to provide a
reasoned basis for that change. Id. at 298, 300. Upon our consideration on
remand, we will reaffirm our decision.
Further, because the court specified that our decision represents a change
in position and that our “prior policy may have ‘engendered serious reliance
interests’ in aliens [such as the respondent,] who pled guilty to certain sexual
offenses under the Silva-Trevino regime,” we will apply it prospectively in
this circuit. Id. at 299. See generally Matter of Cordero-Garcia, 27 I&N
Dec. 652, 655–57 (BIA 2019) (discussing retroactivity). We will not decide
the question of retroactivity in other circuits at this time. See Matter of J-G-,
26 I&N Dec. 161, 170 (BIA 2013) (stating that an agency is not required to
make findings on issues that are unnecessary to the result reached).

II. ANALYSIS
A. Online Solicitation of Children for Sexual Contact
Sexual offenses against minors have long been considered pernicious
crimes that Congress intentionally included as aggravated felonies for
immigration purposes, along with murder and rape.
See section
101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2018). The problem
of online sexual predators has only existed in the last few decades, but it has
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Interim Decision #3978

grown exponentially, with millions of children gaining unrestricted access to
the internet each year, at increasingly younger ages. See Elana T. Jacobs,
Online Sexual Solicitation of Minors: An Analysis of the Average Predator,
His Victims, What Is Being Done and Can Be Done To Decrease
Occurrences of Victimization, 10 Cardozo Pub. L. Pol’y & Ethics J. 505,
506–07 (2012).
In response to this growing problem, every State in the country has passed
a law criminalizing this behavior in some form. See, e.g., Daniel Pollack
& Andrea MacIver, Understanding Sexual Grooming in Child Abuse Cases,
34 No. 11 Child L. Prac. 161, 167 n.21 (2015). In 1998, the Department of
Justice created the Internet Crimes Against Children Task Force Program
“to help federal, state, and local law enforcement agencies enhance
their investigative responses to offenders who use the Internet, online
communication systems or computer technology to exploit children.”
Dep’t of Justice, Office of Pub. Affairs, Press Release No. 18-765,
More Than 2,300 Suspected Online Child Sex Offenders Arrested During
Operation “Broken Heart,” https://www.justice.gov/opa/pr/more-2300suspected-online-child-sex-offenders-arrested-during-operation-broken-heart
(June 12, 2018).
Legislative responses have emerged because the damage that sexual
contact does to young children and adolescents is substantial. There has been
wide recognition of
the significance of the potential harm caused by sexual activity involving children,
even with their consent. These risks involve potential physical harm, including the
risk of venereal diseases [and] trauma . . . .
Perhaps most significantly, an adult who engages in sexual activity with a child
may cause the child serious psychological damage, regardless of the child’s maturity
or lack of chastity. Since the adult will almost always be more physically mature
and experienced in sexual matters, the risk of sexual exploitation is significant.
Moreover, the effects on children of sexual exploitation often follow the child into
adulthood, with societal consequences as well.

Maxwell v. State, 895 A.2d 327, 335 & n.6 (Md. Ct. Spec. App. 2006)
(quoting Owens v. State, 724 A.2d 43, 52–53 (Md. 1999)).
B. Matter of Silva-Trevino
In this larger context of efforts to combat sexual harms against children,
the Attorney General issued Matter of Silva-Trevino I, which involved the
offense of indecency with a child. The first and second steps of the Attorney
General’s three-step analysis were modeled on the categorical approach and
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Interim Decision #3978

the modified categorical approach.2 Matter of Silva-Trevino I, 24 I&N Dec.
at 706. The third step permitted the fact-finder to consider all available
evidence, including evidence outside the record of conviction, to determine
whether the alien knew or should have known the age of the victim and,
therefore, whether the conviction was for conduct involving moral turpitude.
Id. at 706 (“[I]t is proper to make a categorical finding that a defendant’s
conduct involves moral turpitude when that conduct results in conviction on
the charge of intentional sexual contact with a person the defendant knew or
should have known was a child.”).
In proceedings on remand, the Immigration Judge considered evidence
outside the record of conviction pursuant to the third step of the analysis and
found that the alien’s offense was a crime involving moral turpitude because
he should have known that his victim was a child. See Silva-Trevino II,
26 I&N Dec. at 551; see also Matter of Guevara Alfaro, 25 I&N Dec. 417,
424 (BIA 2011) (remanding for the Immigration Judge to apply the third step
to determine the alien’s knowledge of the victim’s age). However, on
petition for review, the Fifth Circuit joined the Third, Fourth, Ninth, and
Eleventh Circuits in rejecting the third step in Silva-Trevino I. Silva-Trevino
v. Holder, 742 F.3d 197, 200–01 (5th Cir. 2014); Olivas-Motta v. Holder,
746 F.3d 907, 916 (9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472, 482
(4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1310 (11th Cir.
2011); Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462, 473–74 (3d Cir. 2009).
In this regard, the Fourth Circuit has stated that the Act “unambiguously
requires that ‘an adjudicator consider only the conviction itself, and not any
underlying conduct,’ in determining whether a crime qualifies as one
involving moral turpitude.” Jimenez-Cedillo, 885 F.3d at 295 (quoting
Prudencio, 669 F.3d at 482).
In the respondent’s case, the permissible documents to consult from the
record of conviction did not indicate what he believed as to the age of the
person he was communicating with.3 Thus, at the time of his conviction in
2015, the respondent pled guilty to a sexual offense under a statute that did
not require proof that he knew or should have known the victim’s age.
Jimenez-Cedillo, 885 F.3d at 296.
2

Under the modified categorical approach, we are permitted to consult “a limited class
of documents (for example, the indictment, jury instructions, or plea agreement and
colloquy)” that form the record of conviction. Mathis v. United States, 136 S. Ct. 2243,
2249 (2016).
3
Although relevant information about the defendant’s knowledge of the victim’s age is
contained in the statement of probable cause, we do not consider it under the modified
categorical approach because it was not incorporated into the respondent’s conviction
record.

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Interim Decision #3978

While a number of courts ultimately resolved the question of the
framework set forth in Silva-Trevino I, they did not address the issues
presented in Matter of Jimenez-Cedillo regarding the alien’s knowledge of
the victim’s age. Consequently, in that case, we aimed to reconcile what was
becoming an absurd result: Congress and the States had implemented laws
to make it easier to stop sexual predators who prey on children, but our case
law did not take this reality into account. 4 The intent of requiring that a
defendant knew or should have known the age of his victim was to ensure
due process in the criminal context. However, the courts have consistently
found that a statute prohibiting sexual conduct with a very young victim that
lacks such a mistake of age defense reflects the public’s desire to protect its
most vulnerable victims and does not violate due process.5
C. Statutory Rape
A review of similar cases reveals that our decision is in line with other
courts that have considered the issue of mistake of age. Historically, one of
the few crimes that was excepted from a mens rea requirement was statutory
rape. See Morissette v. United States, 342 U.S. 246, 251 n.8 (1952) (noting
that sexual offenses where “the victim’s actual age was determinative despite
defendant’s reasonable belief that the girl had reached age of consent” are
exceptions to the longstanding concept that criminal liability requires some
showing of intent). It is well settled that statutory rape is a crime involving
moral turpitude for immigration purposes. See, e.g., Gonzalez-Alvarado
v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (per curiam) (citing Bendel v. Nagle,
17 F.2d 719, 720 (9th Cir. 1927) (holding that statutory rape “manifestly
involves moral turpitude”)); Castle v. INS, 541 F.2d 1064, 1066–67 (4th Cir.
1976) (per curiam); Marciano v. INS, 450 F.2d 1022, 1025 (8th Cir. 1971)
(collecting cases).

4

The outcome of Matter of Silva-Trevino would be identical under our decision today.
The statute of conviction in that case applied to minors 16 years or younger, while
Jimenez-Cedillo is limited to victims no older than 15 years.
5
“[A] mistake-of-age defense—that is, an affirmative defense that the defendant
reasonably believed that his or her victim was not a child at the time of the offense—
ensures that individuals will be convicted only if they willfully or knowingly directed
sexual conduct towards someone they knew, or reasonably should have known, was a
child.” Matter of Silva-Trevino I, 24 I&N Dec. at 707. Even in more recent times,
however, the mistake of age defense is available in only a minority of States. See Michael
S. Vastine, From Bristol, to Hollywood, to a Land Far, Far Away: Considering the
Immigration Consequences of Statutory Rape, 7 Rutgers J.L. & Pub. Pol’y 289, 308 n.56
(2010); see also Kathleen Houck, “Mistake of Age” as a Defense?: Looking to Legislative
Evidence for the Answer, 55 Am. Crim. L. Rev. 813, 820 n.63 (2018).

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Interim Decision #3978

We held that statutory rape was a crime involving moral turpitude in
Matter of Dingena, 11 I&N Dec. 723 (BIA 1966). In that case, we stated
that “mistaking the age of the girl in a statutory rape case is not an innocent
mistake of fact” and that if “the female is under the age of consent, the
element of mens rea does not enter [into the moral turpitude analysis] because
of the very nature of the offense and the interest of society in rendering such
females incapable of giving consent.” Id. at 728. Neither the Attorney
General’s decision in Matter of Silva-Trevino I, 24 I&N Dec. at 707 n.6, nor
our decision in Matter of Silva-Trevino III, 26 I&N Dec. at 834 n.9, disturbed
the well-settled treatment of statutory rape offenses as crimes involving
moral turpitude.
Statutory rape cases are instructive because, until 1964, there was no
mistake of age defense available for such offenses. See Houck, supra, at 813.
California was the first State to interpret the law to require such a defense in
People v. Hernandez, 393 P.2d 673, 676 (Cal. 1964) (en banc) (holding that
“in the absence of a legislative direction otherwise, a charge of statutory
rape is defensible wherein a criminal intent is lacking”). The age of sexual
consent in California was 18 years, and the victim, the perpetrator’s
girlfriend, was 17 years and 9 months at the time of the offense. Id. at 674.
Distinguishing the controlling case, the court noted that at the time it was
decided in 1896, the age of consent was only 14 years and young women
were described as “infants.” Id. at 675.
The court emphasized that it had more recently “moved away from the
imposition of criminal sanctions in the absence of culpability where the
governing statute, by implication or otherwise, expresses no legislative intent
or policy to be served by imposing strict liability.” Id. Nevertheless, it
subsequently recognized the “strong public policy to protect children of
tender years” in rejecting the mistake of age defense to a charge of lewd or
lascivious conduct with a child under 14 years of age. People v. Olsen, 685
P.2d 52, 57 (Cal. 1984) (en banc) (relying on the reasoning of several lower
courts and noting that “even the Hernandez court recognized this important
policy when it made clear that it did not contemplate applying the mistake
of age defense in cases where the victim is of ‘tender years’” (quoting
Hernandez, 393 P.2d at 677)).
After Hernandez, California amended the law prohibiting statutory rape,
now called unlawful sexual intercourse with a person under 18. The statute
created separate offenses, which depend on the age of the victim and the
age differential between the victim and the perpetrator. See People v. Scott,
100 Cal. Rptr. 2d 70, 81 (Cal. Ct. App. 2000) (stating that “the statute
distinguishes between the relative ages of the perpetrator and the victim,
assigning misdemeanor status to the offense when the ages of the perpetrator
and victim are within a three-year range (i.e., teenagers) and felony
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status to other situations” (citation omitted)). California’s tiered system of
punishment reserves the harshest penalties for adults who engage in sexual
activity with minors under 16 years of age. Id. Such laws recognize the
inherent risks that young teenagers and children face when they engage in
sexual activities with others outside their peer group who are significantly
older than they are. See Houck, supra, at 814.
Notably, the age of sexual consent is 16 years or older in every State. See
U.S. Dep’t of Health & Human Servs., Ass’t Sec’y for Planning and Eval.,
Statutory Rape: A Guide to State Laws and Reporting Requirements (2004),
https://aspe.hhs.gov/report/statutory-rape-guide-state-laws-and-reporting
-requirements. Although persons of different ages may fall in love, many
State legislatures have prohibited any sexual contact unless both persons are
over the age of legal consent and of the same peer group. Our holding in
Matter of Jimenez-Cedillo is in line with this current understanding of the
harm done to a child who is enticed to engage in sexual contact by a
significantly older person.
D. Child Pornography
More recently, courts have addressed this harm in the context of child
pornography, which the courts have almost universally determined does not
allow a mistake of age defense. See, e.g., United States v. Fletcher, 634 F.3d
395, 400–01 (7th Cir. 2011) (collecting cases); United States v. Humphrey,
608 F.3d 955, 960 (6th Cir. 2010) (collecting cases); United States v. Malloy,
568 F.3d 166, 171 (4th Cir. 2009); United States v. Wilson, 565 F.3d 1059,
1066–69 (8th Cir. 2009). The Supreme Court has stated that this crime is
damaging to the individual child in such a fundamental way that legislatures
are given leeway to protect against it. See New York v. Ferber, 458 U.S. 747,
757 (1982) (“The prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance.”).
Likewise, the Supreme Court has determined that solicitation of child
pornography is not constitutionally protected activity. United States
v. Williams, 553 U.S. 285, 307 (2008). Acknowledging the harm to children
occurring over the internet, the Court stated, “Child pornography harms and
debases the most defenseless of our citizens. Both the State and Federal
Governments have sought to suppress it for many years, only to find it
proliferating through the new medium of the Internet.” Id. However, the
Court clarified that “an offer to provide or request to receive virtual child
pornography is not prohibited by the statute. A crime is committed only
when the speaker believes or intends the listener to believe that the subject
of the proposed transaction depicts real children.” Id. at 303. Similarly, a
perpetrator commits a crime involving moral turpitude when he solicits a
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person who he believes is an actual child for sexual activity on the internet.
Cf. Matter of Olquin-Rufino, 23 I&N Dec. 896, 898 (BIA 2006) (holding
that the offense of possession of child pornography in violation of section
827.071(5) of the Florida Statutes is a crime involving moral turpitude).
E. Strict Liability
The courts have also addressed a perpetrator’s knowledge of the victim’s
age in interpreting 18 U.S.C. § 2422(b) (2012), the Federal statute that
criminalizes online enticement of children under the age of 18 years for
sexual acts, including arranging a meeting for such a purpose.6 In United
States v. Banker, 876 F.3d 530, 537 (4th Cir. 2017), the Fourth Circuit
discussed whether a conviction under § 2422(b) “requires proof that the
defendant knew the victim was a minor.” The court addressed the
defendant’s argument
that § 2422(b) must have a different scienter requirement to prevent a conviction
based on online communication between an adult who mistakenly believes he is
communicating with another adult, but who is in fact communicating with a minor.
This hypothetical is simply one variant of the unremarkable observation that if
“knowingly” does not modify the age requirement, then a defendant whose conduct
satisfies the other elements of the offense will be held strictly liable when the victim
is a minor. But there is nothing inherently unlawful about that result where it is
constitutional and consistent with congressional intent.

Id. at 539. Finding no mistake of age defense, the court agreed with the
Eleventh Circuit, the only other circuit court to consider the issue, in United
States v. Daniels, 685 F.3d 1237, 1250 (11th Cir. 2012) (per curiam), which
concluded that its holding was intended
to protect minors—not make conviction more difficult for crimes that affect them.
A defendant . . . who lures and encourages young children into these activities does
so at his own peril, regardless of what the victim says or how she appears. He runs
the risk that he is dealing with someone who falls within the purview of § 2422(b),
thus subjecting him to its enhanced penalties.

6

According to 18 U.S.C. § 2422(b),
Whoever, using the mail or any facility or means of interstate or foreign commerce,
or within the special maritime and territorial jurisdiction of the United States
knowingly persuades, induces, entices, or coerces any individual who has not
attained the age of 18 years, to engage in prostitution or any sexual activity for which
any person can be charged with a criminal offense, or attempts to do so, shall be
fined under this title and imprisoned not less than 10 years or for life.

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See also United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012) (“Section
2422(b) ‘was designed to protect children from the act of solicitation
itself . . . .’” (quoting United States v. Hughes, 632 F.3d 956, 961 (6th Cir.
2011))).
More recently, the Fourth Circuit affirmed the view that sexual
solicitation of minors, without actual contact, was sufficiently serious to
constitute sexual abuse of a minor for purposes of the aggravated felony
provisions in section 101(a)(43)(A) of the Act. Thompson v. Barr, 922 F.3d
528 (4th Cir. 2019). The petitioner there argued that sexual abuse of a minor
required physical contact, so solicitation would be insufficient for a finding
of sexual abuse, but the court disagreed.
This logic would upend the generic definition and exclude misconduct that few would
doubt is abuse of a minor in common parlance. Convictions involving indecent
communications with minors over the internet, by phone, or any other remote channel
would no longer count. . . .
We doubt the Supreme Court would adopt such a far-reaching rule without the most
careful consideration of its consequences.

Id. at 535. The Fourth Circuit’s view supports our conclusion that sexual
solicitation of young teenagers and children is a crime involving moral
turpitude, even if knowledge of the age of the child is a strict liability finding.
In Matter of Jimenez-Cedillo, we relied on a Third Circuit case, which
held that an indecent assault in violation of Pennsylvania law was a crime
involving moral turpitude, even though there was strict liability with regard
to the age of the victim. Mehboob v. U.S. Att’y Gen., 549 F.3d 272, 274
(3d Cir. 2008) (involving an adult store owner who touched the breast of a
15-year-old female customer in his store); see also Moreno v. U.S. Att’y Gen.,
887 F.3d 160 (3d Cir. 2018) (citing Mehboob in a child pornography case).
According to the court,
The absence of a mens rea as to a particular element in the statute of conviction
does not necessarily connote an absence of moral culpability on the part of the
violator. Strict liability morality offenses, like indecent assault . . . , are crimes
involving moral turpitude because of the community consensus that such offenses,
which are enacted for the protection of the child, are inherently antisocial and
depraved. . . .
Legislatures often remove mens rea elements from sex offenses on the basis of
community consensus that certain conduct should not be permitted with children
under a certain age. . . . But just because actual knowledge of the victim’s age is not
an element of the crime does not mean that the perpetrator was not motivated by
moral turpitude. Indeed, it would seem impossible to commit an offense, such as
[indecent assault against a victim under 16 by a perpetrator at least 4 years older,]
without violating accepted rules of morality.

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Id. at 277 (footnote omitted). We continue to find this reasoning persuasive.
The respondent argues that Mehboob is inapplicable because the
Pennsylvania statute at issue there contained a mistake of age provision, such
that a conviction could not be obtained if the perpetrator reasonably believed
the victim was above the age of 14 years. However, the statute cited by the
respondent permits no mistake of age defense if the minor is less than
14 years old. See 18 Pa. Cons. Stat. Ann. § 3102 (2019). The respondent’s
statute of conviction, section 3-307 of the Maryland Criminal Law, mirrors
this provision for minors under 14 years and, for 14- and 15-year-olds,
requires that the perpetrator be, at a minimum, 6 years older than the victim.
This age gap establishes that, in every case involving a 14- or 15-year-old
victim, the perpetrator will be an adult, and the onus is properly on that adult
to determine the age of any potential sexual partner.
The respondent charges that our reasoning that there is a “community
consensus” against sexual harm to children is “circular.” He suggests that
all crimes involving moral turpitude are condemned by the community, so
there is no reasonable way to separate any particular kind of case for different
treatment. We disagree. As the Eighth Circuit has stated:
In general in this country, infamous crimes are construed as requiring proof of
mens rea—the “concurrence of an evil-meaning mind with an evil-doing hand”—
even when the statutes defining those crimes are silent on the question. In construing
criminal statutes that protect children from sexual predators, however, the child’s
age is a long-established exception to the general rule that proof of mens rea is
required; “the victim’s actual age [is] determinative despite defendant’s reasonable
belief that the girl had reached the age of consent.”

Gilmour v. Rogerson, 117 F.3d 368, 370 (8th Cir. 1997) (alteration in
original) (citations omitted).
As a deterrent to child sexual predators, the Federal Government and the
legislatures in every State have acted to protect the most vulnerable citizens.
Although the applicable ages and wording of these statutes may differ
slightly, we have set a national standard for immigration cases involving
aliens who have committed sexual offenses against victims who are 13 years
or younger, or 15 years or younger with a significant age differential—
minors who are below the age of consent in every State. Accordingly, we
continue to agree with our decision in Matter of Jimenez-Cedillo, which we
now reaffirm.
III. APPLICATION TO THE RESPONDENT
The categorical approach must be employed when analyzing whether a
particular offense is a crime involving moral turpitude in the Fourth Circuit.
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Sotnikau v. Lynch, 846 F.3d 731, 735 (4th Cir. 2017). A crime involving
moral turpitude “requires two essential elements: a culpable mental state and
reprehensible conduct.” Id. at 736 (internal quotation mark omitted) (citation
omitted). Moral turpitude may inhere where knowing or intentional conduct
is an element of an offense. Id.
Section 3-324(b) of the Maryland Criminal Law, the statute under which
the respondent was convicted, “requires that a violator ‘knowingly solicit a
minor.’” Jimenez-Cedillo, 27 I&N Dec. at 4; see also Matter of J.M. Acosta,
27 I&N Dec. 420, 422 (BIA 2018) (stating that knowledge is a culpable
mental state). And we have determined that sexual contact with young
teenagers and children, or the solicitation to engage in such behavior, is a
reprehensible act.
We must also ensure that there is a “realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside
the generic definition of a crime.” Larios–Reyes v. Lynch, 843 F.3d 146, 152
(4th Cir. 2016) (citation omitted). The respondent points to Choudry v. State,
153 A.3d 895, 897 (Md. Ct. Spec. App. 2017), a case involving a man who
hired an agent to procure a “prepubescent female child” for sexual relations.
Since he used an agent, the court concluded that there was no crime of sexual
solicitation of a minor because section 3-324(b) “unambiguously requires
that a defendant solicit a minor or a law enforcement officer posing as a
minor.” Id. This case does not demonstrate that the Maryland statute has
been applied to conduct that is not morally turpitudinous. Nor has the
respondent identified any other case, including his own, that does.7
The respondent argues that, even if we reaffirm Matter of
Jimenez-Cedillo, we could not apply it in the Fourth Circuit because Ramirez
v. Sessions, 887 F.3d 693, 704–05 (4th Cir. 2018), establishes that a crime
involving moral turpitude must have “as an element, an intent to achieve an
immoral result,” and without a mistake of age defense, no such intent is
established. However, sexual crimes involving young children have
historically been excepted from this requirement because the intent to
achieve the immoral result is inherent in the willful commission of such an
act. Mehboob, 549 F.3d at 277 (stating that even if knowledge of the victim’s
age is not an element of the crime, the perpetrator may still be “motivated by
moral turpitude”). We therefore conclude again that the respondent’s
7

The respondent also cited to a case in which an attorney was disbarred for committing
a criminal act because he was accused of violating section 3-324(b) by soliciting sex online
from a law enforcement officer who was posing as a teenaged girl. Att’y Griev. Comm’n
v. Greenleaf, 91 A.3d 1066, 1067 (Md. Ct. App. 2014). Since the attorney was never
convicted under that statute, we do not find this case to be relevant to the question whether
there is a realistic probability that the statute would be applied to conduct that did not
involve moral turpitude. Id. at 1071 n.8.

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offense in violation of section 3-324(b) of the Maryland Criminal Law is
categorically a crime involving moral turpitude. Cf. Boggala v. Sessions,
866 F.3d 563, 564, 570 (4th Cir. 2017) (affirming that the offense of
“soliciting a child by computer to commit a sex act” under North Carolina
law was a crime involving moral turpitude).
However, in light of the Fourth Circuit’s statement that our decision in
Matter of Jimenez-Cedillo represents a change in position and our conclusion
that we should apply our current holding prospectively, the respondent is not
removable based on a conviction for a crime involving moral turpitude. He
is therefore no longer statutorily ineligible for cancellation of removal under
section 240A(b)(1)(C) of the Act, so we will remand the record for the
Immigration Judge to address whether that relief should be granted.
The Department of Homeland Security has argued that the respondent is
ineligible for cancellation of removal as one convicted of a crime of child
abuse under section 237(a)(2)(E)(i) of the Act, but because no actual child
was ever involved in this case, we cannot make such a finding. See generally
Matter of Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA 2008) (holding
that a “crime of child abuse” is an offense that “constitutes maltreatment of
a child”). However, his conviction for online solicitation of a minor remains
an adverse factor in the exercise of discretion. Therefore, the Immigration
Judge should make factual findings regarding the relevant favorable and
adverse factors, balance these factors, and decide whether the respondent
merits a grant of cancellation of removal as a matter of discretion. See
Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998) (discussing the standards for
exercising discretion for cancellation of removal under section 240A(a) of
the Act).
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new
decision.

794


Interim Decision #2230

MATTER OF SIFFRE
In Deportation Proceedings
A-19016937
Decided by Board September 20, 1973
Deportability of an alien on a "remained longer" charge under section 241(a)(2) of
the Immigration and Nationality Act cannot be sustained where the charge is

brought prior to the expiration of the alien's authorized period of stay; where an
alien, within the authorized period of his stay, violates one of the conditions of
his admission, deportation proceedings can be properly instituted under section
241(a)(9) of the Act.
CHARGE:
Order: Aot of 1952—Section 24.1(a)(2) US U.S.C. 1251(a)(2)I—Nonimmigrant

student—remained longer.

The immigration judge, in a decision dated May 14, 1973,
found the rempundent deportable as charged, ordered his deporta-

to Nigeria, but afforded him the privilege of voluntary
departure. The respondent appeals from that order. The appeal
will be sustained.
The respondent is a 26-year-old married male, a native and
citizen of Nigeria. He was admitted to the United States as a
nonimmigrant student on or about May 31, 1972, authorized to
remain until April 1, 1973.
On January 2, 1973, the District Director served a form letter
upon the respondent. The letter, on Form 1-210, advised the
respondent that "In accordance with a decision made in your case
you are required to depart from the United States on or before
February 2, 1973." There was nothing on the Form 1-210 to
indicate that the respondent had allegedly violated the conditions
of his student status.
On February 9, 1973, an Order to Show Cause was issued
charging the respondent with being deportable under section
241(aX2) of the Immigration and Nationality Act as a nonimmigrant who remained longer than permitted. The Order to Show
Cause recited that the respondent's status "was revoked" on
January 2, 1072, and that he had been "required" to depart by
February 2, 1973, but had failed to do so.
tion

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Interim Decision #2230
The issue in this case is whether the respondent is deportable
under section 241(a)(2), as a nonimmigrant who remained longer
than permitted, for failure to depart pursuant to the District
Director's "revocation" of his student status prior to the expiration
of his period of authorized stay.
Section 241(aX2) renders deportable any alien "in the United
States in violation of [the Immigration and Nationality Act] or of
any other law of the United States." A charge lodged under this
section is proper in the case of a nonimmigrant student who has
remained longer than permitted. The deportability of an alien who
fails to maintain the status in which he was admitted or to comply
with the conditions of that status is provided for under a different
provision, section 241(a)(9). We note that the Order to Show Cause
upon which the present deportation proceedings are based does
not allege that the respondent was out of status.
The crucial fact in this case is that the respondent originally had
been given permission to remain in the United States until April 1,
1973. Once a nonimmigrant has been admitted for a fixed period,
within that period his stay is not unlawful unless by his own
conduct he violates one of the conditions of his admission. If he
does, then his right ro remain terminates, not by revocation on the
part of the District Director, but by his own act. If the District
Director had reason to believe the respondent was out of status, he
could have instituted deportation proceedings under section

241(aX9) based upon that allegation. The Service then would have
had the burden of proving the charge, in a due process hearing, by
clear, convincing and unequivocal evidence. The District Director's
order that the respondent leave before the terminal date of his
stay, in the form of a fiat or conclusion on a Form 1-210, without
more, does not establish deportability for violating conditions of
nonimmigrant status.
In the alternative, rather than confronting the issue of whether
or not an alien is out of status, the District Director has the option
of foregoing any attempt to oust him before the expiration of the

period originally authorized, but denying him an extension of stay
thereafter. Then if the alien fails to depart, the District Director
may properly initiate deportation proceedings under section
241(a)(2) based upon the alien's remaining longer than permitted.
In the present case, the basis of the Order to Show Cause is that
the respondent failed to depart by February 2, 1973, not by April 1,
1973. We find, therefore, that the charge is not sustained. If the
Order to Show Cause is based on an underlying notion that the
respondent had failed to maintain his status, the simple fact is
that it neglects to state this fact. An alien is entitled to know the

correct ground upon which his deportation is being sought.

445

Interim Decision #2230
The respondent's authorized stay in the United States expired
on April 1, 1973, even prior to the immigration judge's decision in
this case. If his stay has not been extended in the interim, he
should be given a reasonable period of time, to be fixed by the

District Director, within which to depart. If he does not so depart,
he may become deportable for remaining longer than permitted,
and a new Order to Show Cause may then be issued.
ORDER: The appeal is sustained and the proceedings are
terminated.

446


MATTER OF M— S--

In DEPORTATION Proceedings
A-12706474
Decided by Board March 22, 1962
Deportahiiity—Section 241(a)(4)—Conviction for crime committeed within five
yearn after entry.

Respondent entered the United States as an agricultural laborer in December
1959; committed statutory rape on June 1, 1960; was admitted for permanent residence on October 27, 1960; and was convicted of the crime in March
1961, resulting in a sentence to imprisonment for live years. Held: respondent is deportable under section 241(a) (4) as a person who has been convicted of a crime involving moral turpitude committed within five years
after his 1959 entry. Law and facts distinguish this case from Bonetti v.
Rogers, 356 U.S. 691.
CHARGE :

Order : Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
of a crime involving moral turpitude and sentenced to confinement

for year or more.

BEFORE THE BOARD

DISCUSSION: Respondent is 38 years old, married, male, a native
and citizen of Mexico. He is at present serving a sentence of five
years in the State Penitentiary, Central Farm #1, Texas Department of Corrections, Sugarland, Texas, for the crime of statutory
rape upon his 15-year-old stepdaughter committed June 1, 1960. He
was convicted for this offense in the District Court of Hidalgo
County, Texas, by a jury upon his plea of guilty during the March
term, 1961. The special inquiry officer found respondent deportable
on the charge set forth above, ordered that he be deported from the
United States in the manner provided by law, and certified the
case to this Board for final decision. The alien was not represented
and requests only that he be permitted to remain in the United States,
if possible, following his release from confinement, in order that he
may support his United States citizen wife and two minor citizen
children.
The question upon which the special inquiry officer certified the
case arises from the fact that the crime was committed by the alien

643

after his entry in December 1959, but before his admission for permanent residence on October 27, 1960, while his conviction did not
occur until March 1961. in December 1959 respondent entered the
United States as an alien agricultural laborer (bracero), in which
he has entered several times. The offense for which he was
convicted occurred on or about June 1, 1960, according to the indictment. The respondent returned to Mexico and applied for an
immigration visa at the American Consulate in Monterrey, Mexico,
on October 26, 1960. At that time he was asked if he had ever been
arrested or convicted of any crime; he answered in the negative. He
was also asked whether he had committed any crime. His visa application says, "No." lie was asked by the examining officer whether
at the time of committing the crime or thereafter he felt that he had
L - fnmitted a crime. He agreed that he had, and that he concealed the
crime from the American consul, but said he did not think about the
event or offense in connection with securing the immigration visa.
He testified that he "did not think anything one way or the

about this particular incident in relation to procuring his visa.
He was admitted to the United States for permanent residence on
October 27, 1960. He was arrested about the first of February 1961,
and a child was born to his stepdaughter in March, while respondent
was in jail.
There is no question but that respondent is deportable under section 241(a) (4) as a person who has been convicted of a crime involving moral turpitude committed within five years after entry. It is
not necessary that the "entry" referred to in the charge be respondent's last entry. The special inquiry officer is correct, of course,
in holding that the word "entry" can refer to respondent's 1959 entry
as an agricultural -worker. The judicial and administrative authority
cited by the special inquiry officer is sufficient, and there is no need
for us to add additional citations. The 1952 Act, section 101(a) (13),
defined "entry" as any coming of an alien into the United States
from a foreign port or place. It has long been held that so far
as criminal grounds of deportation are concerned there is no
obligation on the Service to - choose the last or any particular entry
in framing the charge. The issuance of the immigrant visa at
Monterrey„ following the commission of the crime in the United
States of which the consul was not aware, did nothing to improve
respondent's status as regarded the criminal charge.
The special inquiry officer has discussed the application of
Bonetti v. Rogers, 356 U.S. 691, to the present matter, and distinguished this case from Bonetti on the law . and the facts. We
agree with his conclusion and would only add that in the. instant
case the alien's actual residence began before his legal residence
commenced, and he was living here when the ground of deportation
644

(or exclusion) arose. Respondent's residence here WEL3 actually con
tinuous in that he departed to Mexico, obtained his documents and

-

immediately returned to his home in Texas. As the special inquiry
officer has stated, this was not the case with Bonetti who, at the time
of his admission in 1938, was neither excludable nor deportable.
As the special inquiry officer also points out, the alien may well
be deportable under provisions of the Act other than that set forth
in the order. However, no other charge was brought, and the charge
stated in the order to show cause is adequate. The decision of the
special inquiry officer will be affirmed.
ORDER: It is ordered that the order of the special inquiry officer
of November 2, 1961, be and is hereby affirmed.

645


Interim Decision #2204

MATTER OF ACOSTA
Application for Permission to Reapply
A-15825456

Decided by District Director May 17, 1973
Notwithstanding his several violations of the immigration laws, applicant is
granted permission to reapply for admission to the United States after
deportation where the record establishes that he is a person of good moral
character, has no police record, and has maintained a bona fide family
relationship with his lawful permanent resident spouse and United States
citizen children.

This record relates to a 38-year-old male, native and citizen of

Uruguay, who was deported from the United States November 1,
1962, under a warrant of deportation issued October 29, 1962,

containing the charge that after admission as a nonimmigrant
under section 101(aX15) of the Immigration and Nationality Act,
the applicant remained in the United States for a longer time than
permitted.
The evidence of record upon which the deportation charge was
based establishes the following:
The alien was admitted as a nonimmigrant crewman on September 4, 1961, authorized to remain in the United States for the
period of time his vessel remained in port not to exceed 29 days.
The crewman deserted his vessel on September 4, 1961 after

having been a seaman for only one and one half months. He
secured unauthorized employment as a dishwasher until he voluntarily surrendered on October 26, 1962. He requested to be deported as soon as possible due to the illness of his mother in
Uruguay. He also requested to be detained until his deportation.
At a deportation hearing held on October 29, 1962, he was
ordered deported from the United States, which was effected

November 1, 1962. The cost of his deportation was assessed against
the steamship company which employed him.
On October 2, 1963, the applicant filed an application for permission to reapply for admission into the United States after deportation stating as his reason for desiring to reenter the United States
the following: "Being a seaman and frequently visiting United
States ports to get shore leave in United States." On May 19, 1964
the District Director denied his application on the grounds that

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"Your past record indicates that you are not a bone fide crewman," and "you
would be ineligible for a conditional landing permit under section 252(a) of the
Immigration and Nationality Act."

On September 18, 1967, the subject submitted a second application for permission to reapply for admission to the United States
after deportation. The file reflects a denial of that application on
June 4, 1968 on the grounds that there was no compelling reason
for the presence of the alien in the United States. Although the
alien was advised of his right to appeal both denials he failed to
avail himself of this legal practice.

On March 31, 1970, he again deserted a vessel while that vessel
was in a United States port. He had been refused admission to the
United States as a crewman and he willfully violated the immigration laws of the United States by absconding. Efforts to locate him
by the Immigration Service proved negative and all leads were
exhausted.
The applicant married a lawful permanent resident, Luisa
Escalante, on October 25, 1970 in New York City and proceeded to
apply for an immigrant visa with the American Consul in Montreal, Canada. He was granted an exemption from the provisions
of section 212(a)(14) of the Immigration and Nationality Act and
accorded a registration priority date of July 28, 1972.
He was instructed by the American Consul on October 24, 1972
to contact his local Immigration and Nat.tn•alization Service office
for verification of his status in the United States. He complied
with the instruction on November 17, 1972 and was scheduled for
an interview on February 5, 1973 which he failed to keep. He was
re-scheduled for March 5, 1973 and as a result of that interview, on
March 6, 1973 an order to show cause was issued containing the
charge that he is subject to deportation pursuant to section
241(aX1) of the Immigration and Nationality Act, in that at the
time of entry he was within one or more of the classes of aliens
excludable by the law existing at the time of such entry, to wit,
aliens who have been arrested and deported, consent to apply or
reapply for admission not having been granted by the proper
authority under section 212(a)(17) of the Act.
The special inquiry officer who presided at the deportation

hearing held on March 15, 1973 granted the applicant voluntary
departure in lieu of an order of deportation, without expense to
the Government, on or before June 15, 1973 or any extension
beyond such date as may be granted by the District Director.
It is noted that the applicant is the spouse of a legal resident
who will be eligible to apply for United States citizenship in
September 1973; that he is the father of a United States citizen

child born of his marriage on February 11, 1972. If the applicant
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were required to depart the United States and re-establish his
residence abroad unusual hardships would result not only to his
wife and child in the United States but to the applicant as well.
The cost of maintaining two separate households and depriving a
husband and father the rights due him as a result of his marital
relationship would indeed be an unusual hardship to the applicant
and his family.

In addition, the applicant's record establishes that he has been a
person of good moral character and has never had trouble with
the police either in the United States or in his native country. He

has maintained a good and lawful marriage during his stay in the
United States and provided for his family. The favorable factors,
including the humanitarian aspect of maintaining a bona fide

family unit, when weighed against the unfavorable factors stemming from the alien's violations of the immigration laws, warrant
approval of the application.
ORDER: It is ordered that the subject's application for permission to reapply for admission to the United States after arrest and
deportation be, and the same is, granted.

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