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Interim Decision #3889

Matter of W-Y-U-, Respondent
Decided April 18, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The primary consideration for an Immigration Judge in evaluating whether to
administratively close or recalendar proceedings is whether the party opposing
administrative closure has provided a persuasive reason for the case to proceed and be
resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.
(2) In considering administrative closure, an Immigration Judge cannot review whether
an alien falls within the enforcement priorities of the Department of Homeland
Security, which has exclusive jurisdiction over matters of prosecutorial discretion.
FOR RESPONDENT: Pro se
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MALPHRUS, Board Member:

On April 13, 2015, an Immigration Judge granted an oral motion of the
Department of Homeland Security (“DHS”) seeking administrative closure
of the respondent’s removal proceedings. The respondent opposed the
DHS’s motion and later filed a motion to recalendar the proceedings, which
the Immigration Judge denied on July 8, 2015. 1 The respondent has filed
an interlocutory appeal from that decision. The appeal will be sustained
and the record will be remanded to the Immigration Judge. 2
The respondent is a native and citizen of China who entered the United
States on October 7, 2008. He filed a timely application for asylum
and related relief and protection, which he seeks to have the Immigration
Judge review in removal proceedings. The respondent argues that the
administrative closure of his case prevents him from pursuing that relief.
“Administrative closure . . . is used to temporarily remove a case from
an Immigration Judge’s active calendar or from the Board’s docket.”
1

The Immigration Judge also denied as moot the respondent’s motion to change venue.
Given our disposition of this case, the respondent may raise the issue of venue on remand.
2
Although we do not ordinarily entertain interlocutory appeals, we find it appropriate to
address the merits of this appeal because it “raises an important question regarding the
administration of proceedings under our immigration laws.” Matter of Avetisyan, 25 I&N
Dec. 688, 688–89 (BIA 2012).

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Interim Decision #3889

Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). It is a docket
management tool that is used to temporarily pause removal proceedings.
Id. at 690, 694. Administrative closure is not a form of relief from removal
and does not provide an alien with any immigration status. After a case has
been administratively closed, either party may move to recalendar it before
the Immigration Court, as the respondent did here, or to reinstate the appeal
before the Board. See id. at 695 & n.5.
In Matter of Avetisyan, we determined for the first time that
Immigration Judges and the Board have the authority to administratively
close a case when appropriate, even if a party opposes it. Id. at 690, 694.3
Thus, we held that “it is improper to afford absolute deference to a party’s
objection” to administrative closure. Id. (overruling Matter of Gutierrez,
21 I&N Dec. 479, 480 (BIA 1996)). We stated that in evaluating whether
to grant a request for administrative closure, an Immigration Judge should
consider the following factors:
(1) the reason administrative closure is sought; (2) the basis for any opposition to
administrative closure; (3) the likelihood the respondent will succeed on any
petition, application, or other action he or she is pursuing outside of removal
proceedings; (4) the anticipated duration of the closure; (5) the responsibility of
either party, if any, in contributing to any current or anticipated delay; and (6) the
ultimate outcome of removal proceedings . . . when the case is recalendared.

Id. at 696. 4 This individualized evaluation prevents a party from keeping a
case on an Immigration Court’s active docket absent a reasoned explanation
or justification. Cf. Matter of Lamus, 25 I&N Dec. 61, 65 (BIA 2009)
(concluding that a party’s opposition to a motion to reopen, “in and of
itself, should [not] be dispositive of the motion without regard to the merit
of that opposition”); Matter of Hashmi, 24 I&N Dec. 785, 791 (BIA 2009)
(noting that the DHS’s “unsupported opposition” to a continuance “does
not carry much weight”).
In this case, the Immigration Judge explained that he denied the
respondent’s motion to recalendar and kept his case administratively closed
to reserve the Immigration Court’s “limited adjudication resources to
resolve actual cases in dispute.” First, while we recognize the Immigration
Judge’s concerns regarding the most efficient use of limited resources, such
matters are secondary to a party’s interest in having a case resolved on the
3

Immigration Judges also have broad discretion to grant continuances “for good cause
shown.” 8 C.F.R. §§ 1003.29, 1240.6 (2016); see also Matter of Interiano-Rosa, 25 I&N
Dec. 264, 265 (BIA 2010). In many cases, granting a continuance may be more
appropriate than administratively closing a case.
4
The same factors should be weighed in evaluating a motion to recalendar or reinstate.

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Interim Decision #3889

merits. See Matter of C-B-, 25 I&N Dec. 888, 890 (BIA 2012) (noting that
docket efficiency does not override an alien’s “invocation of procedural
rights and privileges”). In fact, Matter of Avetisyan does not list court
resources as a factor to consider in evaluating whether administrative
closure is appropriate. In a similar context, we held that “[c]ompliance
with . . . case completion goals . . . is not a proper factor in deciding a
continuance request.” Matter of Hashmi, 24 I&N Dec. at 793–94.
Second, to the extent that the Immigration Judge concluded that this
matter does not present an “actual case[] in dispute,” we do not agree. An
alien in removal proceedings has a right to seek asylum and related relief
from persecution. See Matter of E-F-H-L-, 26 I&N Dec. 319, 321–23 (BIA
2014) (holding that an alien in removal proceedings generally has a right to
a full evidentiary hearing on applications for relief from persecution);
8 C.F.R. § 1240.11(c)(3) (2016). Therefore, assuming that his application
was properly filed and that he is eligible for the relief sought, the
respondent has a right to a hearing on the merits of his claim. If his
application is successful, he may be eligible for lawful status in the United
States, while administrative closure provides him no legal status. This is
not a case where an alien has filed for asylum with no intent to proceed on
the application to a resolution.
Moreover, the fact that the DHS sought administrative closure in this
case is not dispositive of whether the respondent’s case is actually in
dispute. The role of the Immigration Courts and the Board is to adjudicate
whether an alien is removable and eligible for relief from removal in cases
brought by the DHS. We lack the authority to review the DHS’s decision
to institute proceedings, which involves the exercise of prosecutorial
discretion. See Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998);
Matter of Yazdani, 17 I&N Dec. 626, 630 (BIA 1981). Since prosecutorial
discretion is a matter within the exclusive jurisdiction of the DHS, it
follows that in considering administrative closure, an Immigration Judge
cannot review whether an alien falls within the DHS’s enforcement
priorities or will actually be removed from the United States. See Matter of
Quintero, 18 I&N Dec. 348, 350 (BIA 1982) (stating that “deferred action
status is a function of the District Director’s prosecutorial authority,” which
neither Immigration Judges nor the Board can review); cf. Matter of
P-C-M-, 20 I&N Dec. 432, 434 (BIA 1991) (stating that the likelihood that
an alien will be deported is not a factor to be considered in a bond
determination). Thus, while the DHS’s actions may suggest that the
respondent’s case is not a priority for enforcement, they are not dispositive
of whether the case is in dispute.
There is an important public interest in the finality of immigration
proceedings. INS v. Abudu, 485 U.S. 94, 107 (1988) (“There is a strong
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Interim Decision #3889

public interest in bringing litigation to a close as promptly as is consistent
with the interest in giving the adversaries a fair opportunity to develop and
present their respective cases.”). That interest is particularly clear here,
since it is the respondent who is opposed to continuing administrative
closure for an indefinite period and requests that his case proceed to a
conclusion on the merits. An unreasonable delay in the resolution of the
proceedings may operate to the detriment of aliens by preventing them
from obtaining relief that can provide lawful status or, on the other hand,
it may “thwart the operation of statutes providing for removal” by
allowing aliens to remain indefinitely in the United States without legal
status. Ukpabi v. Mukasey, 525 F.3d 403, 408 (6th Cir. 2008) (discussing
the competing interests to be considered in evaluating a motion for
continuance). The considerations regarding administrative closure should
apply equally to respondents and the DHS.
While Matter of Avetisyan provides a list of factors to be considered, we
now clarify that decision and hold that the primary consideration for an
Immigration Judge in determining whether to administratively close or
recalendar proceedings is whether the party opposing administrative closure
has provided a persuasive reason for the case to proceed and be resolved on
the merits. 5
The respondent is opposed to the continuation of administrative closure
and has requested recalendaring of the proceedings. He has explained
that he wants to pursue his application for asylum to its resolution. Under
these circumstances, recalendaring of the proceedings is appropriate.
Accordingly, we will sustain the respondent’s appeal, reinstate his removal
proceedings, and remand the record for further proceedings. 6
ORDER: The appeal is sustained, the decision of the Immigration
Judge is vacated, and the removal proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

5

This decision is intended to provide additional guidance where one of the parties
opposes administrative closure. However, it is not applicable to cases in which the
parties jointly agree to administrative closure, recalendaring, or reinstatement. Moreover,
we continue to hold that neither party has “absolute veto power over administrative
closure requests.” Matter of Avetisyan, 25 I&N Dec. at 692.
6
If the DHS had sought termination of the proceedings, which it chose not to do, this
case would present a different question. If the proceedings were terminated, the charges
against the respondent would be dismissed. He would therefore not have the same
interest in having his case resolved on the merits.

20


Interim Decision 4t1148

AIVITER OF DI PIFTI10
_in Visa

Petition Proceedings
A-13234670

Decided by District Director January 18,1965
Urgent need of beneficiary's services as a foreign-automobile mechanic is not
established within the contemplation of section 203(a) (1), Immigration
and Nationality Act, as amended, since considerably less' than the alleged
thirty-iive per cent of petitioner's gross volume of business is derived from
the repair of foreign ears. •

The petitioner, Westchester Motors, 2030 Westchester Avenue,
Bronx, New York, submitted a first preference visa petition under
section 204 of the Immigration and Nationality Act, as amended, in
behalf of Antonio DiPietro, on June 10, 1963. The services of the
beneficiary are sought as an automobile mechanic, to repair all makes
of foreign cars. Such duties would include the disassembly and
overhaul of motors, transmissions, clutches, etc.
The Bureau of Employment Security cle
arance order submitted
in conjunction with the petition specifies that the position requires
a person who has had at least five years' experience in the performance of the duties of the position to be filled.
Evidence has been submitted indicating that the beneficiary was
employed as an. apprentice automobile mechanic with Giuseppe &Lye,.
Venetico Marina, Italy, from March 1951 to May 1953, and as a
skilled automobile mechanic with Giuseppe liundo, in the same
city, from July 1953 to January 1956. He was a specialized automobile mechanic in the employ of the Finance Corps of Palermo,
Italy, from January 1956 to November 1962. The beneficiary is
said to be capable of perforMing major repairs such as the disassembly and overhaul of motors, and to have acted in a supervisory
capacity.
The petition reflects that Westchester Motors is engaged in general
auto repair. On April 30, 1964, the petitioner stated that 35% of
his gross volume of business was derived froni the repair of foreign
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Interim Decision *1448
cars. Inquiry at the petitioner's place of business, conducted by an
officer of this Service on July 28, 1964, revealed that only 40% of
the petitioner's business was devoted to mechanical and body repair
work, the rest resulting from the storage, greasing, simonizing, and

washing of automobiles, and the sale of gasoline. Of more than 75
copies of bills for repair work during the preceding year, only three
involved foreign cars.
From the foregoing it is seen that considerably less than the
alleged 35% of the petitioner's gross volume of business is derived
from the repair of foreign cars. It is, therefore, concluded that the
petitioner has failed to satiefaetorily establish urgent need_ for the

services of the beneficiary to perform the duties listed in the job
summary of the clearance order, as required for first preference classification under section 203(a) (1) of the Immigration and Nationality Act, as amended.
ORDER: It is ordered that the first preference visa petition submitted by Westchester Motors, in behalf of Antonio DiPietro, be and
the same is hereby denied.

124-


Interim Decision #2928

MATTER OF TANAHAN

In Section 245 Proceedings
A-23273236
Decided by Regional Commissioner November 13, 1981
(1) Adjustment of status under section 245 of-the Immigration and Nationality Act,
8 U.S.C. 1255, was not designed to supersede the regular consular visa-issuing processes
or to be granted in nonmeritorious cases. Chen v. Foley, 385 F.2d 929 (6 Cir. 1967),
cert. denied, 393 U.S. 838 (1968).
(2) The determination to grant permanent residence status under section 245 of the
Immigration and Nationality Act, 8 U.S.C. 1255, lies entirely within the discretion of

the Attorney General. An applicant who meets the objective prerequisites for adjustment of status is in no way entitled to that relief. Jarecha v. INS, 4174F.2d 220 (5 Cir.
1969).
ON BEHALF OP APPLICANT: Walter G. Yartanian, Esquire
79 Milk Street
Boston, Massachusetts 02109

This matter is before the Regional Commissioner on certification from
the Acting District Director in Boston, Massachusetts. The Acting District Director denied the instant application as a matter of discretion
upon determining that the applicant failed to meet the "inspected and
admitted or paroled" provision of section 245(a) of the Immigration and
Nationality Act, 8 U.S.C. I255(a).
Section 245(a) of the Immigration and Nationality Act piovides in
part that:
The status of an alien who was inspected and admitted or paroled into the United States
may be adjusted by the Attorney General, in his discretion and under such regulations
as he may prescribe, to that of an alien lawfully admitted for permanent residence . . . (Emphasis .supplied). '

The record relates to a 40-year-old married male alien, a native and
citizen of Iran, who last arrived -in the United States on June 5, 1979, by
way of TWA flight number 753 from London, England. During the
inspection process the applicant'was referred by the primary ittnnigradon inspector at the port of entry to the secondary inspection area
because the applicant was suspected of being an intending immigiant
not in possession of a valid unexpired immigrant visa pursuant to section 212(a)(20) of the Act.
339

Interim Decision #2928
During the secondary inspection, it was ascertained that the applicant
had been residing in England with his family and had resigned from the
Oil Service Company of Iran of 1976_ In addition, correspondence was
discovered that indicated the applicant was actively seeking employment in the United States and had begun negotiations with an Atlanta
employment agency. A letter was also found from the British Immigration office indicating that the applicant's request for the return of his
passport had the effect of "cancelling the previous application for leave
to remain" in the United Kingdom.
Given these facts the immigration inspector refused to admit the
applicant to the United States and the applicant chose to execute a
formal withdrawal of his application for admission instead of being
detained for further inquiry by an immigration judge pursuant to section 235(b) of the Act.
Service Operations Instructions 235.1(o) sets forth the procedures
to be followed in cases where an application for admission has been

withdrawn and reads in part as follows:
. In any case of an alien whose application for admission has been withdrawn or who
has been ordered excluded and deported by a special inquiry officer and who is being
turned over to the carrier which brought him to the United States for removal to the
country from whence he came, the Form 1-94 which that alien presented at the time of
his application For admission shall be endorsed with the parole stamp and with the .

following notation thereon: (Show date to which paroled) To the (show name of carrier)
for the purpose of removing (show name of alien) from the United States.
The original of this form shall be given to the alien for presentation to the carrier for

endorsement of departure data and return to the Service. At the same time, Form I-259
shall be appropriately endorsed and served on the carrier. The port of entry will retain
the duplicate copy of Form 1-94 only until the original with departure data is received
and forwarded to the Central Office .. .

The record contains a copy of Form 1-275 (Notice of Withdrawal of
Application For Admission to the United States) which states in part:
. I understand that my admissibility is questioned for the above reasons, which I have
read or which have been read to me in the English language. Although I understand I
may choose to appear before an immigration judge for a hearing in exclusion proceedings,
I request that I be permitted to withdraw my application for admission and to return
abroad ...

This statement was signed by the alien on June 5, 1979, and the alien's
signature was witnessed by a Supervisory Immigration Inspector.
The record also contains Form 1-94 (Arrival-Departure Record) relating to the alien. Form 1-94 indicates that the alien was paroled on June
5, 1979, for the purpose of being removed to London, England, on June
5, 1979, via Trans World Airlines. The record further indicates that an
officer of the Immigration Service served Trans World Airlines Form
1-259 (Notice to Detain, Deport, Remove or Present Aliens) on June 5,
1979, at 5 p.m. Form 1-259 was signed for by an agent of Trans World
Airlines and reads in part as follows:
340

Interim Decision #2928
to the owner, agent . . . of the Trans World Airlines. Pursuant to the provisions of
the Immigration and Nationality Act, and the Regulations issued by the Attorney
General thereunder, you are directed to . . . Remove to London on June 5, 1979, at 7:45
p.m. . . . lranahan, Megertlich

The applicant, however, did not depart the United States,. but instead
absconded from the port of entry. The next day, June 6, 1979, he
appeared voluntarily with his attorney and was processed as an alien
who had entered without inspection. 1 On June 7, 1979, the United States
Attorney declined prosecution under 8 U.S.C. 1325 for entry without
inspection in favor of adininistrative proceedings. The applicant was
then granted voluntary departure pursuant to the policy then in effect
concerning Iranians.
On August 16, 1979, the applicant commenced' the initial processing
of an application for labor certification and this eventually resulted in his
being the beneficiary of a sixth-preference visa petition approved on
January 16, 1980. An Application for Status as Permanent Resident was
filed on ,A.pril 4, 1980, and the question of the applicant's eligibility for
adjustment of status is now at issue.

Counsel's argument is succinct and simply states "parole is parole,
whether to the airline for five hours or sixty days." In conclusion counsel states that there is no question that the applicant was paroled and
therefore he is statutorily 'eligible for adjustment under section 245 of
the Act.
The evidence of record clearly establishes that the alien was paroled
into the 'United States pursuant to Service Operations Instructions
235.1(o). Therefore, the sole issue for our consideration is whether the
alien's application for adjustment to that of a permanent resident under
section 245 of the Act merits favorable exercise of the Attorney General's
discretion.
The Act empowers the Attorney General or his designee (normally an
officer of the Immigration and Naturalization Service) to determine if an
applicant is entitled to the favorable exercise of the Attorney General's
discretion. Statutes cannot.be so detailed as to contain every regulation
and form of procedure by which legislative policies set forth therein are
carried out. Consequently, the courts have recognized that administrative officers must be permitted some discretion in the enforcement of
laws.
As a parolee, applicant for admission should not have been deemed to have made an
entry without inspection under section 275 of the Immigration and Nationality Act, 8
U.S.C. 1325. The Board of Immigration Appeals held in Matter of Barragan-Garibay, 15
I&N Dec. 77 (BIA 1974), that where a paroled alien is erroneously prosecuted and convicted under section 275, the government will be collaterally estopped from denying that
the applicant made an entry in subsequent administrative proaaaclingc cneh as exclusion.
This matter is distinguished from - Barragan because this applicant was never convicted
under section 275 and therefore the doctrine of collateral estoppel is not applicable.

341

Interim Decision #2928
Adjustment of status under section 245 of the Act was not designed to
supersede the regular consular visa-issuing processes or to be granted
in nonmeritorious cases. Chen v. Foley, 385 F.2d 929 (6 Cir. 1967),
cert denied, 393 U.S. 838 (1E68). An applicant who meets the objective
prerequisites for adjustment. of status is in no way entitled to that relief.
arecha v. INS, 417 F.2d 22C (5 Cir. 1969). In the instant case, the alien
has no close family ties or dependents living in the United States (the
-alien's-spouse and his two children are citizens of Iran and have resided
in London, England since November 1978), We also find that the alien's
actions on June 5, 1979, clearly indicated that he intended to remain in
the United States by superseding the regular consular visa-issuing process and by asconding from Trans World Airlines he hindered the _
Service in its effort to enforce the legislative policies set forth by
Congress.
After carefully considering the entire record, together with counsel's
representations on appeal, it is our considered opinion that the alien is
not entitled to adjustment of status. Accordingly, the application is
denied as a matter of discretion and the following order will be entered.
ORDER: Application denied.

342


Interim Decision #1666

MATTER OF NAGY

In Deportation Proceedings
A-14586364
Decided by Board November 30, 1966
Application of respondent, a 21-year-old native and citizen of Hungary,• for

withholding of her deportation pursuant to the provisions of section 243(h),
Immigration and Nationality Act, as amended by P.L. 89-236, is denied since
respondent's liability to prosecution under Hungarian law, upon return to
that country, arising from her disregard of the limitation placed on the
duration of her travel abroad and from her objection to returning voluntarily to Hungary, does not, in itself, establish "persecution" within the
contemplation of that section.
CHARGE:
Order: Act of 1952—Section 241(a) (2) (8 U.S.°. 12511—Nonimmigrant
(visitor)—remained longer.

The special inquiry officer, in a decision dated July 15, 1966,
denied the respondent's application for adjustment of her status to
that of a permanent resident; granted her the privilege of volun- •
tary departure; provided for her deportation from the United States
to Hungary, on the charge contained. in the order to show cause,
in the event of her failure to so depart; and denied her application
for temporary withholding of deportation to Hungary. The appeal
from that decision, which brings the ease before this Board for
consideration, will be dismissed.
The record relates to a 21-year-old single female alien, a native
and citizen of Hungary, who last entered the United States on or
about December 1, 1964. She was then admitted as a nonimmigrant
visitor for a period until September 15, 1965. On November 26,
1065, she was granted the privilege of voluntaty departure in lieu
of the institution .of deportation proceedings, such departure to be
effected on or before December 6, 1965. She has, however, remained
in the United. States since that date.

888

Interim Decision .#1666
The foregoing establishes the respondent's deportability on the
above-stated charge This was conceded in the course of the hearing
before the special inquiry officer. It presents no problem- here.
The special inquiry officer has already granted the respondent the
privilege of voluntary departure. Suffice it to say, in this connection,
that the record before us supports said official's action in this respect.
We find that 'the special inquiry officer has properly denied the
respondent's application for adjustment of her status to that of a
permanent resident pursuant to section 245 of. the. Immigration and.
icationality..Act (8 IT.S_CI 1255)
In order for her to be eligible
for the benefits of that section, she is required to establish that an
immigrant visa is readily available to her. Also, under the appropriate provisions of 8 CPR 245.1 the respondent, who is presently
employed as a "shampoo girl" and assisting a hairdresser is not
eligible 'for the benefits of said section of the statute Unless she
presents a certification issued by the Secretary of Labor under
section 212(a) (14) of the Act, or unless she demonstrates that her
occupation is included in the current list of categories of employment for which the Secretary of Labor has issued a blanket certification under that section.
It is established and uncontested that this respondent has failed
to obtain the required labor clearance. The copy of a newspaper
article concerning reported 'changes in the procedure for obtaining
the necessary labor clearance and containing a purported list of
occupations for which a labor clearance will not be required, dbks
not mention the specific occupation presently being followed by this
respondent; and the very nature of this document speaks for itself
insofar as its evidentiary value is eonctirned.
We likewise find that the special inquiry officer has properly
denied the respondent's request for temporary withholding of her
deportation to Hungary. Our review of the record convinces us
that she has not met her burden of establishing that she would be
subjected to persecution because of race, religion or political opinion
upon her return to Hungary (see 8 OFR 242.17(o)). We do not
think that the judicial precedents cited by the respondent (Bovie' h. v.
Espe;'dy, 319 F.2d 21; and Dunat v. Romney, 297 F.2d 744) call for
a contrary conclusion.• The respondent first claimed that she was deprived- of an opportunity to pursue further Studies. after completing high Whoa!, because she was considered' '!class enemy" by the Hungarian authorities as a result of an. mole of hers having fled to the West:- However, the record reflects that when she applied for a passport to
-

889

Interim Decision #1666
and from her objection to returning voluntarily to Hungary. As

a result, of course, she may be subjected to more severe penalties
under Hungarian, law than would otherwise be the case. But aside
from the matter of her unauthorized extension of her visit in the
United States, none of the other circumstances relied on by the
respondent appear persuasively pertinent to the point at issae here.
They existed before her departure from Hungary and did not result
in her persecution there or- prevent her leaving that country. Her
parents who still reside in Hungary and are employed there have
not been persecuted.
In conclusion, if weight were given to the basic reason for this
appeal it would, effect, make it possible for every Hungarian

visitor to the United States to create a basis for immunity to deportation merely by extending the period of stay beyond that usually involved in a visit. Without more, this does not suffice to
support an application for this type of relief.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

802


Interim Decision #2245

MATTER OF CASTRO

In Deportation Proceedings
A-10489741

Decided by Board December 4,

1978

(1) An alien admitted for permanent residence who departed to Mexico in May
1963; who severed his ties with the United States, moved his family to Mexico,
acquired land, built a house, and obtained steady employment in Mexico,
where he remained for six years, except for his numerous brief business trips
to the United States, was not, upon his return to the United States in 1969,
"returning from a temporary visit abroad" within the meaning of section
101(a)(27)(B) of the Immigration and Nationality Act and was not entitled to
admission as a returning resident through presentation of his Alien Registration Receipt Card (Form 1-151).
(2) Notwithstanding he possesses the requisite familial relationship, the alien in
the instant case is ineligible for the benefits of section 241(f) of the Act, as
amended, since he was required to be in possession of an immigrant visa at
the time of his return to the United States from Mexico in 19R9 and, therefore,
was not "otherwise admissible" (Matter of Lee, 13 I. & N. Dec. 214, 218 (1969)).*
CHARGE:
Order: Act of 1952—Section 241(aX1) [8 U.S.C. 1251(a)(1)] Excludable at entry
under section 212(a)(20)—no valid immigrant visa.
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Bernabe Q. Maldonado
Trial Attorney

Sam Williamson, Esquire
1320 Americana Bldg.
Houston, Texas 7'7002

The respondent has appealed the decision of an immigration
judge which was rendered on April 13, 1973, and which ordered the
respondent's deportation. The appeal will be dismissed.
The respondent is a native and citizen of Mexico who was

admitted to the United States as an immigrant in 1956. In May of
1963 the respondent returned to Mexico, apparently at the behest
of his father. He subsequently purchased land and built a house in
Mexico. He resided there with his family until September of 1969;
rero v. immigration and Ncsturaii
/cat /aro
Reversed and remanded. See Castro-Guer
ration Service, 503 F.2d 964 (CA. 5, 1974). Affirmed, 515 F.2d 616 (C.A. 6, 1975).

492

Interim Decision #2245
however, he claims to have entered the United States once or
twice a month during that period in connection with his job as the
manager of a Mexican hotel. While the respondnet has testified
that his preference was to remain in the United States, and that
he only stayed in Mexico to please his father, he nevertheless
substantially severed his connections with the United States for a
period of six years and failed to take any steps which might

indicate an attempt to retain permanent resident status.
After his father's death in 1969, the respondent returned to the
United States, evidently with the expectation of residing here
indefinitely. Since then he has occasionally returned to Mexico for
a visit or vacation. He last entered the United States in March of
1971. Subsequent to his admission as an immigrant in 1956, all of
the respondent's entries appear to have been accomplished
through the presentation of an alien registration receipt card
(Form 1-151). It is on the basis of essentially these facts that the
Service charged the respondent with being deportable as an
immigrant not in possession of a valid entry document.
At his hearing, the respondent denied deportability, contending
that section 241(f) of the Immigration and Nationality Act exempts him from deportation under the charge contained in the
Order to Show Cause. On appeal, the respondent also asserts that
there was no finding that he had abandoned his residence in the
United Stales, apparently reasoning that he would not be deporta

-

ble in the absence of such a determination. We shall deal with this
latter issue first.
As briefly indicated earlier, the respondent was charged with
being deportable under section 241(aX1) as an alien excludable at
his latest entry under section 212(a)(20) of the Act. Section
212(aX20) mandates the exclusion of any immigrant who in seeking
admission does not possess the required documentation. Section
101(aX15) defines "immigrant" to include every alien who cannot
qualify as a nonimmigrant. It is clear that the respondent would
not have been classifiable as a nonimmigrant, given his intention

to reside indefinitely in the United States. See section 214(b),
Immigration and Nationality Act. Thus, although the respondent
had once been admitted for the purpose of residing permanently,

he was still subject to the regulations and the provisions of the Act
regarding the qualifications necessary for readmittance.
Section 211(b) of the Act is the basic statutory provision authorizing the liberalization of documentary requirements for aliens
previously admitted as immigrants. Pursuant to this section and
the related regulations, an alien who qualifies as a "returning
resident immigrant" may be admitted in the absence of an immigrant visa or, in an appropriate case, without any other documen-

493

Interim Decision #2245
tation. Under section 101(aX27)(I3), to which section 211(b) refers, a
"returning resident immigrant" is defined as "an immigrant,
lawfully admitted for permanent residence, who is returning from
a temporary visit abroad." Although there is an issue as to
whether the respondent could qualify as having retained his
status as an alien lawfully admitted for permanent residence, 1 it is
evident that he cannot be viewed as returning from a temporary

visit abroad, and he fails on this ground to satisfy the statutory
definition of a "returning resident immigrant."
The cases which have construed the phrase "temporary visit"
have established several factors which must be taken into consideration. First, the duration of the absence has a definite bearing
on whether it can be deemed "temporary." See Gamero v. INS, 367
F.2d 123 (C.A. 9, 1966). Cf. Matter of Salviejo, 13 I. & N. Dec. 557
(BIA. 1970) Second, the location of the alien's family ties, property
holdings and job all relate to a determination regarding the
character of a visit abroad. Santos v. INS, 421 F.2d 1303 (CA. 9,
1970); Matter of Salviejo, supra. Finally, the intention of the alien
with respect to both the location of his actual home and the
anticipated length of his excursion have been deemed of significance to this inquiry. U.S. ex rel. Lesto v. Day, 21 le.2d 307 (C.A. 2,
1927); Matter of Montero, Interim Decision No. 2216 (BIA 1973).
As indicated, on the facts of this case the respondent cannot be
viewed as returning from a temporary visit abroad. Except for his
numerous brief business trips to the United States, the respondent
remained in Mexico for six years. He severed his ties with the
United States, moved his family to Mexico, acquired land, built a
house and obtained steady employment there. Thus, regardless of
what his ultimate intent might have been, we hold that the
respondent's stay in Mexico cannot be deemed temporary. He
therefore was not entitled to admission through the presentation
of his alien registration receipt card.
The respondent nevertheless maintains that he is saved from
deportation by the operation of section 241(f) of the Act. By its

terms, section 241(f) precludes the deportation of an alien on a
charge relating to the procurement of entry or documentation
through fraud or misrepresentation, if the alien was "otherwise
admissible at entry" and is the spouse, parent or child of a United
States citizen or of an alien lawfully admitted for permanent
residence. The respondent in this case has two citizen children and
therefore clearly satisfies the familial relationship requirement of
'Compare Matter of Antolin, 12 I. & N. Dec. 127 (BIA, 196?), and Matter of
Sias, 11 I. & N. Dec. 171 (BIA, 1965), with Gooch v. Clark, 433 F.2d 74 (C.A. 9,
1970), cert. den., 402 U.S. 995 (1971), and Matter of M—P—, 9 I. & N. Dec. 747
(BIA, 1962).

494

Interim Decision #2245
this section. There is some question regarding whether the requisite misrepresentation exists. However, we need not resolve this
issue because we have concluded that the respondent does not
meet the "otherwise admissible at entry" qualification of the
statute, as construed by prior administrative decisions.
In Matter of Lee, 13 I. & N. Dec. 214, 218 (A.G. 1969), the
Attorney General interpreted the "otherwise admissible" clause of
section 241(f) to require that the alien have completed the administrative screening process necessary for entry as an immigrant.
Although the decision in Matter of Lee, supra, was reversed in Lee
Fook Chuey v. INS, 439 F.2d 244 (CA. 9, 1970), we have deemed
ourselves bound by the Attorney General's position, and we have
thus felt constrained to reject the position taken by the Ninth
Circuit. See Matter of Mangabat, Interim Decision No. 2131 (81A
1972); Matter of Perez-Echeverria, Interim Decision No. 2200 (BIA.
1973).
In this case, the respondent had lost his status as an alien
lawfully admitted for permanent residence. Since he had not
acquired a nonimmigrant status, he must be viewed as any
immigrant alien seeking an initial admission to the United States.
The respondent's lawful entry would therefore have required his
presentation of a valid immigrant visa. To obtain an immigrant
visa, it would have been necessary for the respondent to submit
himself to the consular screening process mandated by the Act.

Since the respondent has not undergone the required screening
for the entry in question, and since the decision in Matter of Lee,
supra, makes this element a prerequisite to a favorable determination on the "otherwise admissible" criterion of section 241(0, it is
evident that the respondent fails to meet the conditions imposed
by that provision. Accordingly, we find that his deportability has
been established by evidence that is clear, convincing and unequivocal.
Having reviewed the record thoroughly, we find that a remand
on the issue of voluntary departure is unnecessary. We are
satisfied that the respondent is eligible for that relief, and consequently we will grant him 30 days voluntary departure on the
record before us.
ORDER: The appeal is dismissed with respect to the application
under section 241(f) of the Immigration and Nationality Act.
Further order: The decision of the immigration judge is modified, and the respondent is permitted to depart from the United
States voluntarily within 30 days from the date of this order or
any extension beyond that time as may be granted by the District
Director; and in the event of failure so to depart, the respondent
shall be deported as provided in the immigration judge's order.
495


Interim Decision *1550

MATTER

OF

FREEMAN

In Visa, Petition Proceedings •
A-13498524
Docraod by Bpard .7carmary 24, 1966

Notwithstanding petitioner's first marriage was terminated in 1954 by an in
absentia Mexican divorce secured by his II S. citizen wife, his second marriage in 1965 in Korea to beneficiary is valid for immigration ruirpoeeR fiance
it is valid under the law of the place where contracted.

This case is before us. pursuant to the motion of the Service for
reconsideration of our order of November 4, 1965 in which we
directed approval of the visa petition.
The petitioner a native born United-States citizen, married the
beneficiary, Sue' am Sang, on March 17, 1965 in Korea. He had
been previously married to Imogene Belmming in 1946 and one
child was 'born of this marriage. They separated in 1949 and his
first wife obtained a divorce at Juarez, Chiltuahua, Mexico on
December 11, 1954. The petitioner has been employed by the Bank
of America overseas since May 31, 1952. Apparently he has been
in Korea since that date but regards the State of California as his
legal resirla npsk ' The sole issue in this ease is whether there is a
valid marriage betWeen the petitioner and the beneficiary, and the
question further resolves itself into whether the petitioner's first
marriage has been terminated.
Subsequent to our consideration of the case, the petitioner submitted to the Service a letter of June 11, 1965 by his first wife.
This letter is to the effect that the Mexican divorce was "arranged"
by a member of the California bar; that this petitioner "signed the
papers" and apparently paid part of the fee involved; that she
thereafter remarried; that the validity of the Mexican divorce was
recognized at that time; and that she has two children by her
-

second marriage. She resents the fact that a question has been

raised concerning the validity of the Mexican divorce and it appears
unlikely that she would be willing to furnish any additional information concerning the matter.

intexim Decision

*1550

In our order' of November 4, 1965, we •refeired to the•Acting
4 I. Se N. -Dec. 610
'Attorney General's decision in 'Matter of
(1952) and his statement • therein (p. 614) that a plain Congressional
purpose 'was to facilitate and faster the maintenance of families.
'He aLgOratidthat, it "ieemee"reasonable .tb believe that the Conorecs
intended that the
i marriage of a citizen, valid where contracted ', be
accorded' validitY• for immigration purposes"-, and that was the
basiwof the decision. There, the first wife was in Tijitana, Mexico,
for days to consult a lawyer about filing the proceeding but
neither party was in Mexico 'between the actual filing of the divorce
proceeding and the decree of divorce and neither pally wits ever in
the State of Tlaxcala, the divorce having been granted by a ediurt of
that state. It is clear that the' fact that the first wife had been in
Mexico for two days had no bearing on' the 'Acting .Attorney Gen•era's decision. There, the petitioner's second marriage occurred 'in
-Germany whereas here the second marriage took place in Korea.
With that exception and the fact that we do not know whether this
petitioner's first wife- consulted. a lawyer in Mexico, the facts in
this petitioner's ease and in Matter of
are entirely analogous.
The Service seeks to distinguish Matter of P— by stating that
there 'was no impediment under German law to the recognition of
the Mexican divorce and that there is such an impediment under
Korean law. In this•connectian, there was attached to the motion
a memorandum prepared by .Dr. Sung Yoon Cho of the Far .Eastern
'Law Division, Law Library, Library of Congress,'and the Service
stated that this memorandum sets forth in greater detail the statutory
provision quoted by its officer at Tokyo in his decision. Hence, it
appears that the Service relies on 'Article-i.8 of Law No. 966 of
Jain:sly 15, 1962 whiCh is as follows:

Art. 18. Divorce than be governed by the law of the bonze country or the
husband at the time of the occurrence of the fact forming its cause. However, the court may 'make - no adjudication of divtirCe imless the fact forming
its cause also consiltdtes a cause of -divorcelaccording t'o Korean law.

The first sentence of Article 18 is identical with the Korean
Statutory provision: quotedby the officer-in-:charge. Actually, there
is no statement in Article 18 as to the requirements for a -valid
marriage under the laWs of Korea, and the only citation donceinini,
a law governing marriage is the American Consular Offt feer'i xeferencC to Article 812 of the Korean Codi of Februify .22; 1951
However, that statutory provision is not part of the record before
us. We believe that Article 18 simply means that, where a suit
for divorce is filed in a Korean court and at least one of the parties
is not a national of Korea, then the divorce proceeding shall be

-

483

Interim Decision #1550
governed by the law of the home country of the husband at the
time the ground for divorce arose but that the court will not grant
a divorce unless the ground of divorce is also a ground under Korean
law. This is .clear from the statement on page 2 of Dr. Cho's
memorandum concerning "the absence of specific provisions under the

above Statute covering the question of the recognition of divorce
effected between non-Korean nationals abroad". Dr Cho then
stated that Professor Kim was of the opinion that divorce effected
between aliens abroad should be recognized in Korea so far as it
was effected according to the law of the home country" of a party,
citing Professor Kim's book "New Private International Law".
In view of the foregoing, there is nothing to indicate that there

is any specific statutory provision of Korean law which would
preclude recognition of the Mexican divorce. The most that can
be said is that a Professor Kim, who has written a 'book entitled
"New Private International Law", was of the opinion.that a divorce
outside Korea by non-Korean nationals should be recognized in
Korea if it was secured according to the law of the home country
of a party. The home country of this petitioner and his first wife
is the United States and there may he some question as to whether
the State' of California can be equated to "home country". As
against the nebulous theory of the Service, we have the fact that
the petitioner's first wife secured the Mexican 'divorce after consult- ing a member of the California bar; that she has remarried and has
children by her second marriage; that over 11 years have elapsed
since she obtained the Mexican divorce during which period its
validity has not been questioned heretofore; that both parties have
considered their marriage terminated by reason of the divorce; that
a copy of the Mexican divorce decree was exhibited at the time of
the petitioner's marriage to the beneficiary; and that the American
Vice Consul was apparently satisfied as ,.to the validity of the
marriage between the petitioner and the beneficiary. We conclude
that the -Acting Attorney General's decision in Matter of P—,
supra,, is controlling and.thiit our previous action directing approval
of the visa. petition was correct. Hence, the motion of the Sprvice
will be denied and , we. shall not accede to its, request that the case
he ,remanded to the„ Field Office for the receipt of additional
evidence.
(AMER: It is ordered that. the motion of .the Service for reconsideration, except as reconsidered herein, be and the same is hereby
'denied.

484


Interim Decision #2623

MATTER OF CHENG

In Deportation Proceedings
A 20932085
-

Decided by Board November 9, 1977
Alien employed after January 1, 1977, not precluded by section 245(c), as amended by Pub.
L. 94-571, 90 Stet. 2703, from receiving adjustment of status where nunc pro tune
authorization to accept employment granted by Immigratioa and Naturalization Service
to any alien who is the beneficiary of a visa petition filed before January 10, 1977, and
who could, under 8 C.F.R. 245.2(a)(2), have properly filed am application for adjustment
with that petition.
CHARGE:

Order. Act of 1952—Section 241(a)(2) [8

1251(a)(a)i—Norammiglant visitor--

remained longer than permitted
ON BEHALF OF RESPONDENT:
Claorgp T Popcheff, Esquire
5023 W. 16th Street
Speedway, Indiana 46224

ON BEHALF OF SERVICE:

Georue Indelicato
Appellate Trial Attorney

Mllhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

In a decision dated March 29, 1977, the immigration judge found the
respondent deportable as charged, denied his application for adjustment
of status, and granted him the privilege of voluntary departure. The
respondent has appealed from the immigration judge's decision that he
Was ineligible for adjustment of status under subsection (c) of section
245 of the Immigration and Nationality Act as amended by Pub. L.
94-571, 90 Stat. 2703, effective January 1, 1977. The record will be

remanded.

The respondent is a 26-year-old native and citizen of China who last
entered the United States on March 12, 1974, as a nonimmigrant visitor
for pleasure, authorized to remain 'until April 5, 1974. Based upon the
fact that he admitted the allegations in the Order to Show Cause and
conceded deportability, he was correctly found deportable by evidence
which is clear, convincing, and unequivocal. The only issue on appeal
involves the immigration judge's denial of his application for adjustment
of status.
386

Interim Decision #2623
The respondent married a lawful permanent resident on May 5, 1974,
and a visa petition, filed by his spouse in his behalf, was approved on
October 1, 1974. He filed an application for adjustment of status on
January 26, 1977. At his deportation hearing on March 10, 1977, he
admitted being employed without permission by the Service from December, 1975 until January 26, 1977.
The immigration judge found that the respondent apparently met all
of the statutory requirements for adjustment of status except the provision in subsection (c) of section 245, as amended, by Pub. L. 94-571, 90
Stat. 2703, effective January 1, 1977. This amendment precludes an
alien who continues in or accepts unauthorized employment after
January 1, 1977, and prior to filing an application for adjustment, from
receiving this relief. The respondent, however, contends that his employment was not unauthorized because the Service knew that he was
employed and therefore acquiesced in it. '
It appears that on July 18, 1977, the Central Office of the Service
issued an instruction to all field offices whereby nunc pro time authorization to accept employment is to be granted to any alien who is the
beneficiary of a visa petition filed before January LO, 1977, and who
could, under 8 C.F.R. 245.2(a)(2), have properly filed an application for
adjustment with that visa petition. Inasmuch as the respondent is the
beneficiary of a second-preference petition filed by his wife on May 21),
1974, it appears that the instruction of July 18, 1977, would have given

nunc pro tune authorization for the respondent's employment. The respondent, therefore, would not be precluded by section 245(c) from
receiving adjustment of status.
Upon a review of the record, we note a discrepancy regarding the
respondent's place of birth. It appears that the immigration judge
corrected the respondent's Form 1-485 and Form SS-5 to read China as
the respondent's place of birth (Tr. p. 9). Nevertheless, several other
places in the record show Hong Kong as his place of birth. We will
remand the record in order to permit the respondent to clarify his actual

place of birth. The immigration judge shall then make a determination
as to whether the respondent is both eligible for and deserving of the
discretionary relief of adjustment of status.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion and the entry
of a new decision.
FURTHER ORDER: Should a decision on the application for section
245 relief be adverse to the respondent, an appropriate order shall be
entered and the record shall be certified to this Board for review.

387


Interim Decision #2150

MATTER OF AMIET
In Deportation Proceedings
A-18382872

Decided by Board May 19, 1972
Conviction of unlawful possession of marijuana for personal use is a conviction
relating to illicit possession of marijuana within the meaning of section
241(a)(11) of the Immigration and Nationality Act, as amended; a conviction of
possession for the purpose of sale or other disposition is not required to
establish deportability under section 241(a)(11) of the Act.
CHARGE:
Order: Act of 1952—Section 241(aX11) U.S.C. 1251(aX11)1—Convicted of illicit
possession of marijuana.
ON BEHALF OF SERVICE:
R. A Vielhaber
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:
Don A. Petruccelli, Esquire
716 First National Building
Davenport. Iowa 52801
and
Margaret Stevenson, Esquire
Lambach, Stevenson & Goebel
100-2 Professional Arts Bldg.
Davenport, Iowa 52803

Respondent appeals from the special inquiry officer's order
requiring his deportation. The appeal will be dismissed.
Counsel contends that respondent's conviction for illicit possession of marijuana may not serve as the basis for deportation
because the conviction was for possession for personal use.
Respondent was admitted as a nonimmigrant in 1968. The facts
have been fully stated by the special inquiry officer.
To avoid fruitless discussion as to the exact crime for which

respondent was convicted, we assume for the purpose of this
discussion that, as urged by counsel, respondent's conviction on
November 10, 1970, in an Iowa county court was for the crime of
unlawful possession of marijuana for personal use. We hold,
nevertheless, that such a conviction makes respondent deportable
under section 241(a)(11) of the Act which provides for the deportation of an alien convicted of violation of a law or regulation
relating to illicit possession of marijuana. The immigration law
146

Interim Decision #2150
does not require possession to be for the purpose of sale or other
disposition.
Prior to 1956, convictions which did not involve illicit trafficking
in narcotics were not grounds of deportation, Matter of R—M—, 8
I. & N. Dec. 397 (BIA, 1959); Matter of M—V—, 7 I. & N. Dec. 571
(B IA, 1957); Matter of B—, 5 I. & N. Dec. 479 (BIA, 1953). Thus, the
1952 Act did not make a conviction for illicit possession of a
narcotic a ground of deportation; it required a conviction for "illicit
traffic," Matter of L—, 5 I. & N. Dec. 169 (A.G.; 1953).
In 1956, Congress added language to section 241(a)(11) of the Act
for the purpose of making a conviction relating to "illicit posses-

sion" of narcotics a ground of deportation, Narcotic Control Act of
1956 (Act of July 18, 1956, 70 Stat. 567, 575). The amended language
required the deportation of an alien convicted of a law "relating to
the illicit possession of or traffic in narcotic drugs." 1
Let us now determine the intent of Congress when it amended
section 241(aXll) in 1956 and in 1960. The amended law provides
for the deportation of an alien convicted for the illicit possession of
or traffic in narcotics or marijuana. Were we to equate illicit
possession with traffic, as would be the result if counsel's argument were accepted, it would make the use of the word "traffic"

meaningless.
Furthermore, since the Immigration Act was amended by the
Narcotic Act of 1956 to provide for the deportation of the alien
convicted of illicit possession, it would appear that the person
referred to in the immigration laws would be at least the same
person who could be convicted under the criminal provisions
amended by the Narcotic Act of 1956; e.g. 26 U.S.C.A. 4744. Under
this criminal provision, to obtain a conviction, it is merely necessary to prove that the person has come into possession of untaxed
marijuana and that he was required to pay the tax, United States
v. Oropeza, 275 F.2d 558 (C.A. 7, 1960).2 We have found no reported
1 While the Narcotic Act of 1956 made the nonpayment of the required tax in

marijuana and narcotic transactions a crime, section 241(a)(11) spoke only of
illicit possession of 'a narcotic drug. Since marijuana is not a narcotic drug, the
courts held that conviction for illicit possession of marijuana did not bring the
alien within that portion of the immigration law which required the deportation

of one convicted of illicit possession of a narcotic drug, e.g., Hoy v. MendozaRivera, 267 F.2d 451 (C.A. 9, 1959). To overcome the effect of these decisions,
Congress amended the immigration law in 1960 to provide for the deportation of
an alien convicted of illicit possession Of or traffic in narcotic drugs or marijuana, Act of July 14, 1960, P.L. 86-648, 74 Stat. 504, sec. 9.
2 The gist of the offense is the nonpayment of the required tax. The presumption of unlawful possession is a matter of proof. The presumption arises when
the defendant fails to produce proof of payment of the tax after demand has

been made upon him for such production:Ruiz v. United States, 365 F.2d 103, 104
(C.A. 10, 1966); United States v. Chapplan, 321 F. Supp. 767 (E.D. Va., 1971).

147

Interim Decision #2150
case stating that it was a defense to a charge under this section
that the illegal use was for personal purposes only. We note that in
a case interpreting section 241(a)(11) of the Act as it was amended
in 1956, a court stated that conviction for "mere possession of a
narcotic drug" was sufficient to justify a deportation order, Mendoza-Rivera v. Del Guercio, 161 F. Supp. 473 (S.D. Calif., 1958), aff'd
Hoy v: Mendoza Rivera, 267 F.2d 451 (C.A. 9, 1959).
Furthermore, Congress stated that the purpose of the Narcotic
Act was not only the eradication of illicit trafficking in forbidden
substances, but also the "elimination of the illegal uses" of these
substances, H.R. 2388, June 19, 1956, U.S. Code Cong. and Adm.
News, 84th Cong., 2d Sess., 1956, p. 3274. In view of all these facts,
we find that a conviction for violation of a marijuana statute
involving personal use only was intended by Congress, when it
amended section 241(a)(ll) in 1956 and in 1960, to make the convicted
alien deportable under the immigration laws.
The case of Varga v. Rosenberg, 237 F. Supp. 282 (S.D. Calif.,
1964), relied upon by counsel, does not require a contrary conclusion. The question there was whether an alien convicted of being
illegally under the infltfornAg of narcotics had been convicted of a
law relating to the illicit possession of narcotics. The court held
that "use" does not necessarily include "possession" (at 285). The
instant case does involve possession, Matter of Sum, 13 L & N. Dec.
569 (BIA, 1970).
Counsel points out that the criminal provisions affected by the
Narcotic Control Act of 1956 were repealed by the Comprehensive
Drug Control Act of 1970, approved on October 27, 1970 (P.L. 91-513;
21 U.S.C.A. 801 et seq.). This Act sought to provide "an overall
balanced scheme of criminal penalties for offenses involving
drugs," U.S. Code Cong. and Adm. News, 91st Cong., 2d Sess. 1970,
p. 4567. Section 404 of the new law (21 I.J.S.C.A. 844) makes simple
possession, i.e., possession for personal use, a crime. The section
provides that a first offender of laws relating to controlled substances who was found guilty of a violation of section 404 may be
placed on probation without the entry of a judgment of guilty. If
the offender satisfies the conditions of his probation, the charges
are dismissed and the offender is considered as if he had not been
convicted "for any purpose."
In passing the Comprehensive Drug Control Act, Congress
radically altered its approach to the problem of violations of laws
relating to controlled substances to show greater leniency to the
first offender guilty of posession for personal use only. Logically,
Congress could have provided that an alien who is a first offender
convicted for personal use only should not be deportable. However,
in passing the Comprehensive Drug Control Act, Congress made

148

Interim Decision #2150
no reference to section 241(a)(11). We are without authority to
rewrite the law. We find ourselves bound by the language of
section 241(a)(11) and we must hold that respondent is deportable as
charged.
Counsel points out that respondent is pursuing studies of a
nature that cannot be completed elsewhere and that he will
complete his studies within a reasonable time. Counsel requests
that respondent be permitted to complete his studies. This request
should be addressed to the District Director who has the power to
stay deportation.
ORDER: The appeal is dismissed.
Warren R. Torrington, Member, Concurring:

At oral argument, counsel discussed the provisions of section 404
of the Comprehensive Drug Abuse Prevention and Control Act of
1970 (21 U.S.C.A. 844). Our opinion should merely have stated that
the new federal statute has no bearing on the matter before us.
At the time of the respondent's conviction, the Comprehensive
Drug Abuse Prevention and Control Act of 1970 had not even
become effective. Also, this respondent was not convicted of a
federal crime. Rather, on his plea of "Guilty," he was convicted of a
crime punishable under Iowa state law, in the District Court of the
State of Iowa for Scott County. Thus, our opinion should not have

been burdened with a gratuitous discussion of the Comprehensive
Drug Abuse Prevention and Control Act of 1970.

149


Interim Decision #1231

MATTER OF MEDINA-LOPEZ

In DEPORTATION Proceedings
A-11809668
Derided by Board Jgdy 9,0,1982
The crimes of robo (theft of $5.00 from the person) coupled with lesiones (assault) in violation of Articles 288 and 367 of the Penal Code of Mexico, constitute the equivalent of robbery as defined in the District of Columbia Cods.
Since robbery carries a penalty of more than a year, a petty offense is not
Involved; and respondent is not eligible for the exemption contained in section
212 (a) (9) of the 1952 Act, as amended.
CHARGES :
Order: Sec. 241(a) (1), I. & N. Act (8 U.S.C. 1251 (a) (1) )—Pixeludable at time
of entry—crime, conviction (section 212(a) (9) of the Act).
Sec. 241(a) (1), I. & N. Act (8 U.S.C. 1251(a) (1) )—Excludable at
time of entry—Procured visa by fraud or by willfully misrepresenting a material fact (section 212(a) (19) of the Act)

This is an appeal from the order of the special inquiry officer requiring respondent's deportation upon the charges stated above. The
appeal will be dismissed.
The issue is whether respondent has been convicted of a petty offense, or of a crime which is not a petty offense.
Respondent, a 30-year-old single male, a native and citizen of
Mexico, was admitted to the United States for permanent residence
on April 22, 1959, upon surrender of an immigrant visa issued on
April 20, 1959. The Service charges that this visa was obtained by
fraud in that respondent concealed. the fact that he had been convicted.
of crimes in Mexico. The Service contends that when the respondent
last entered the United States on March 30, 1961, after a short visit
to Mexico he was excludable as one who had obtained a visa by fraud
and as one who had committed crimes involving moral turpitude.
prior to entry. On January 31, 1956, respondent was convicted by a court in Mexico
of robo (he had taken $5.00. from the person of another without his
consent) and lesiones (assault) in violation, respectively, of articles
7

Interim Decision #1231
288 and 367 of the Penal Code of Mexico? On April 20, 1956, he was
sentenced to six months imprisonment for the robo and two months
for the ?colones. Sentence was suspended, apparently upon the payment of a fine of 50 pesos and restitution of the $5.00 taken.
The record reveals that in a pretrial confession, respondent stated
that he and another arranged to rob an individual in whose car they

were riding, and that they diclassault him and take his money from
him. On the trial, the respondent stated that the individual with
whom he and his companion had been riding refused to return them
to their homes and they had taken the $5.00 from him so they could
return to their homes, but they had not struck him. The individual
concerned testified that respondent and his friend had assaulted and
robbed him of the $5.00.
The special inquiry officer found that the conviction for robo was
one involving moral turpitude because a permanent taking of the
property of another was involved. He ruled that the lesions required

a consideration of the purpose for which the assault was committed,
that the purpose established by the record was robbery, and that moral
turpitude was, therefore, involved (Matter of L—, 2 I. & N. Dec. 54).
The special inquiry officer ruled that since the respondent had been
convicted of two crimes involving moral turpitude, the petty offense
rule did not apply and respondent had been inadmissible to the
United States at the time the visa was issued to him.
Counsel contends that the convictions should be considered as conviction for one offense, for only one act was involved. Counsel contends that if respondent is considered as having committed only one
offense that offense should be robo , the most serious aspect of the
criminal act. In the instant case, he contends, the robe would be a
petty larceny since only $5.00 was involved, and since a petty offense is
involved, respondent is not excludable. Counsel contends that to conskier respondent as having been convicted of robo and the intent to'
commit robe, as he believes the special inquiry officer has done, is
t
contradictory and unjustified. In the alternative, counsel argues tha
if respondent must be considered as having been convicted of two
crimes, he should be considered as having been convicted of theft or
petty larceny, a petty offense, and assault, a crime which does not
involve moral turpitude, thus calling for the conclusion that the re'Article 288—Under the designation of /Moses is comprised not only of wounds,
scarring, contosione,„treetures, dislocations, goons, bilt also all alteration of
health and whatever other damage which leaves a material mark on the human,
body, if said effects are produced by external causes.
Article 857-8e commits the crime of robo who takes possession of another's
personalty without right and without the consent of the person who can dispose
of it lawfully. (Ex. 50).

8

Interim Decision #1231
spondent was not inadmissible to the United States by reason of the
conviction. In opposition, the examining officer argues that there was
a conviction for two distinct offenses, but that the lesions must be
considered in connection with the commission of robo and, therefore,
involves moral turpitude. •
In determining whether a foreign conviction is a. petty offense within
section 212(a) (9) of the Immigration and Nationality Act (8 U.S.C.
1182 (a) (9), formerly section 4 of the Act of September 3, 1954), the
conviction must be examined in light of a similar offense "if committed
in the United States" (Matter of T—, 6 I. & N. Dec. 508). The crime
committed by the respondent, the taking of property from the person
of another by force, describes the crime known as robbery in the United
States. If the respondent had not been convicted by the Mexican
authorities, but at the border when seeking admission had been questioned concerning his commission of crime, and had revealed the facts
which are contained in the record of convictions, he could have been
excluded as one who admitted commission of robbery or the essential
elements of that crime. Here we have a conviction, and must be
guided by what the court considered the respondent had done rather

than by what he said he had done. The court chose to punish the
respondent for two separate offenses--robo, the taking of property
and lesions, an assault. However, this record clearly establishes that
the taking of property and the assault arose out of one incident. The
assault was for the purpose of taking property from the person of
another. It appears to us that the respondent's convictions arising
as they do out of a single scheme of conduct amount iv what in the

District of Columbia Code is described as robbery in the following
terms :
Whoever by force or violence, whether against resistance or by sudden ur

stealthy seizure or snatching, or by putting in fear, shall take from the person
or immediate actual possession of another anything of value, is guilty of robbery,
and any person convicted thereof shall suffer imprisonment for not less than
six months nor more than 15 years. (Title 22, section 2901 of the District
of Columbia Code (1961) )

We believe respondent's conviction must be measured by the definition of robbery in the District of Columbia Code. Since the District
of Columbia Code provides for a. penalty of more than a year for the
crime•of robbery, a petty offense is not involved. Respondent's con -viction made him ineligible for the issuance of a visa and inadmissible
to the United States. The first charge is therefore sustained. 2
If there bad been no conviction for Wanes and the respondent had taken the
money from another against his will even without force, the crime of robbery as

defined in the District of Columbia Code would have been committed (see,
Spencer v. United Statea,116 F. 2d 801 (D.C. Oir.) ).

9

Interim. Decision #1231
Respondent withheld the fact that he had been convicted when he
applied for a visa. The record establishes that this information was
deliberately held from the consul to facilitate the issuance of a visa.
• Since a ground of inadmissibility was concealed, there was a misrepresentation of a material fact. The second charge is sustained.
The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

10


Interim Decision #1793

Kam or NASON
In Deportation Proceedings
A-32126968
Decided by Board September 29,1067
Respondent's conviction on a plea of guilty on April 0, 1065 of willfully and
knowingly devising a scheme to defraud by use of the mails rising a fictitious
name from November 1, 1962 to December 31, 1962 in violation of 18 U.S.C.
1341, and his conviction on the same day, in the same court, on his plea of
guilty: of devising a similar scheme to defraud by use of tho mans using
another fictitious name during the period October 2, through October 24, 1963,
in violation of the same statute—convictions of two crimes involving moral
turpitude—are not convictions arising out of a single scheme of criminal misconduct within the meaning of section 241(a) (4) of the Immigration and
Nationality Act.•
-Cnaton:
Order: Act of 1952—Seetion 241(a) (4) [8 U.S.C. 1251(a) (4) )—Convicted of
two crimes after entry—Devising a scheme to defraud
by use of the mails (18 1341) ; and devising
a scheme to defraud by use of the mails (18 II.S.C.
1841).
ON BEHALF OF RESPONDENT:

ON BEHALF OF SE/DUCE:

R. A. Vielha.ber
Appellate Trial Attorney

Rita E. Hauser, Esquire
300 Madison Avenue
New York, mew York 10017

The case comes forward on appeal from the order of the special
inquiry officer entered April 12, 1967 ordering that the respondent be
deported on the charge contained in the order to show cause.
The case was previously considered by us on June 2, 1966 on appeal
from the order of the special inquiry officer dated January 13, 1966
finding the respondent deportable as charged in the order to show
cause, concluding that the crimes for which respondent was convicted
did not arise out of a single scheme of criminal misconduct and ordering him deported to Canada. In an order of June 2, 1966, after noting
the diversity of holdings regarding the meaning of the phrase "not
•Reaffirmed. See 394 F. 2d 223 (CA. 2 , 1908).

452

Interim Decision #1793
arising out of a single scheme of criminal misconduct," we found
that deportability had been established.
The respondent applied for judicial review, Nason v. Immigration
and Naturaliaatirm, Service, 370 F.2d 865 (2d Cir. 1967). The court

held that devising a scheme to defraud by use of the mails was a crime
involving moral turpitude; that the respondent was not entitled to
have a lawyer present at a preliminary interrogation before an investi-

gator of the Immigration and Naturalization Service, and that it was
not error to fail to advise him that he had a right to counsel; and that it
was not error to receive in evidence at the deportation hearing the
respondent's sworn statement made at the preliminary interrogation.
However, the court held that the Board's method of appraising the
evidence was not L satisfactory application of the rule required in

•deportation proceedings of clear, unequivocal and convincing evidence

as held by the Supreme Court in TV oodby v. Immigration and Natura2884 U.S. 904 (1966) ; that it was necessary to decide

4zation Service,

the issues on the record as a whole. On March 28, 1967, we remanded

the case for further proceedings in accordance with the opinion of
the court .1
We will briefly review the facts. The respondent, a native and citizen
of Canada, now 81 years old, was admitted to the United States for
permanent residence on April 29, 1961. On April 9, 1965 he pleaded
guilty to three counts of an information in the District Court for the
Southern District of New York for =lawfully, wilfully and knowingly devising a scheme to defraud by use of the mails using the fictitious name of "Charles C. Cole" from November 1, 1962 to December
31, 1902 in violation of 18 U.S.C. 1341. On the same day in the same
court he also pleaded guilty to three additional counts of the information for devising a similar scheme in violation of the same section, using
the fictitious name "Peter Hughes," during the period from October
2, through October 24, 1963. Upon his plea of guilty to these six counts
petitioner was given a suspended sentence and placed on probation for
two years. The special inquiry officer, the Board, and the court found
that each of these crimes involved fraud and hence moral turpitude
within the meaning of 8 U.S.C. 1251(a) (4).
In his order of April 12, 1967 the special inquiry officer compared
the respondent's sworn statement of June 15, 1965 with his testimony
at the deportation hearing on August 8, 1965 and found that the re2 We noted the dissent of Chief Judge Lombard who found the evidence as to
deportability to be clear, unequivocal and convincing, and that no testimony could
support the claim that these two felonies, so removed in time, and void of any
conceivable continuity, could have arisen out of a "single scheme" as Congress

intended that phrase.

453

Interim Decision #1793
spondent's attempted explanation at the deportation hearing was patently lame, and that the respondent was not a credible testifier in hia
defense, plus the uncontrovertible fact that the frauds were separated
by ten months. The special inquiry officer concluded that the evidencewas clear, unequivocal and convincing that the crimes for which therespondent was convicted did not arise out of a single scheme of
criminal misconduct.
Counsel argues that the evidence relied on by the special inquiry
officer is not enough to meet the very rigorous burden of proof put
on the Government in deportation proceedings by TV ovarby v. Immigration. and Naturalization Service, 384 U.S. 904, and that the special'
inquiry officer erroneously relied on Costello v. Immigration and Naturalization Service, 311 F.2d 343 (2d Cir., 1962), reversed on other

grounds, 376 U.S. 120 (1964). Judge Medina in the N WO% case referred
to the Costello case and stated that the court concluded in the Costello
case that in the absence of any admissible and relevant evidence other
than the records of conviction (Costello did not testify), the special
inquiry officer was required to find that the petitioner had been con-

two crimes not arising from a single scheme of misconduct.
was
evidence, other than the record of convictions, which was relevant to
the issue of how many criminal schemes existed.
In the present case, the explanation of the respondent in deportation proeeedings attempting to clarify and to repudiate his statement
of June 15, 1965, was a weak and unconvincing attempt to lessen the
darnagi.ig effects of the statement against respondent's interest contained in Exhibit 4. The special inquiry officer, who had the opportunity to view the demeanor of the respondent when testifying, found
him to be not a credible testifier. It is uncontradieted that the frauds
victed of

The court pointed out that in the Nostra ease, by contrast, there

were separated by a period of ten or eleven months_ In addition, close

examination of the records of conviction show that the counts (1),
(2) and (3) of the information involved a scheme to defraud under
the name of Charles C. Cole; and counts (7), (8) and (9) involved
a second scheme to defraud committed some ten or eleven months
later under the name of Peter Hughes. 2
While we have noted the distinction between this case and the
Costello case, the court in the Costello case 3 clearly indicated its disagreement with the views expressed in the cases collected in footnote 8,
"By contrast, in Jeronimo v. Mattil, 157 P.Supp. SOS, the period of time charged
in the first count encompassed the periods of time of the acts charged in

every one of the other counts, and all the acts constituted parts of a common
scheme and plan. •
'311 F.29 343 p. 848.
454

Interim Decision #1793
which are the cases relied upon by counsel. The court in. the Costello
case, the same circuit as in the instant case, noted that the statute
.makes no reference whatever to any "common scheme or plan;" nor
would it seem reasonable to suppose that the Congress intended to

grant immunity from deportation to those who over a period of time
pursued a course of criminal misconduct, involving numerous succesaive, separate crimes, consummated at different times but in the same
manner, or with the same associates, or even by the use of the same
fraudulent devices, disguises, tools or weapons. The court stated that
there was no denying the fact that the Congress by the 1952 Act
intended to make it easier rather than more difficult to deport aliens
who were recurrent criminals.
Upon a full conLideration of all the evidence of record, including
the respondent's sworn statement, his testimony, his attempted repudiation of sworn statement (a statement against interest), the finding
of the special inquiry officer that the respondent was not a credible
testifier, and the record of conviction showing two separate and distinct mail frauds, committed over ten months apart, constituted clear,

unequivocal and convicing evidence that the crimes did not arise out
of a single scheme of criminal misconduct. We kind that respondent is
deportable as charged. The appeal will be dismissed.

ORDER: It is ordered that the appeal be and the same is hereby

dismissed.

455


Cite as 27 I&N Dec. 189 (BIA 2018)

Interim Decision #3912

Matter of W-Y-C- & H-O-B-, Respondents
Decided January 19, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An applicant seeking asylum or withholding of removal based on membership in a
particular social group must clearly indicate on the record before the Immigration Judge
the exact delineation of any proposed particular social group.
(2) The Board of Immigration Appeals generally will not address a newly articulated
particular social group that was not advanced before the Immigration Judge.
FOR RESPONDENT: Omar O. Vargas, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Peter Gannon, Associate
Legal Advisor
BEFORE: Board Panel: MALPHRUS, MULLANE, and LIEBOWITZ, Board Members.
MALPHRUS, Board Member:

In a decision dated December 28, 2016, an Immigration Judge denied the
respondents’ applications for asylum and withholding of removal and
ordered them removed from the United States. The respondents have
appealed from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondents are a mother and her minor son, who are natives and
citizens of Honduras. They entered the United States without being admitted
or paroled and have conceded removability under section 212(a)(6)(A)(i) of
the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012).
The female respondent, who was represented during the proceedings below,
is seeking asylum and withholding of removal based on her membership in
a particular social group. 1 She argued that she was a member of a social
group comprised of “[s]ingle Honduran women age 14 to 30 who are victims
of sexual abuse within the family and who cannot turn to the government.”
The Immigration Judge concluded that this group was not cognizable under
1
The respondents’ claim is based on the female respondent’s application for relief, and
we therefore refer to her when we reference a single respondent.

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Interim Decision #3912

the Act and found that the respondent did not establish that the harm she
suffered and fears was or would be inflicted “on account of” her membership
in the claimed group.
The respondent concedes on appeal that the group she articulated before
the Immigration Judge does not constitute a valid particular social group
based on existing precedent. Instead, she asserts that she is eligible for
asylum and withholding of removal based on her membership in a new
particular social group that she has articulated for the first time on appeal,
namely, “Honduran women and girls who cannot sever family ties.” 2

II. ANALYSIS
“The Board is an appellate body whose function is to review, not to
create, a record.” Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984).
It is therefore imperative that the parties fully develop the record before the
Immigration Judge. We have long held that we generally will not consider
an argument or claim that could have been, but was not, advanced before the
Immigration Judge. See, e.g., Matter of J-Y-C-, 24 I&N Dec. 260, 261 n.1
(BIA 2007) (declining to consider for the first time on appeal a basis for
asylum that was not raised below); Matter of R-S-H-, 23 I&N Dec. 629, 638
(BIA 2003); Matter of Jimenez, 21 I&N Dec. 567, 570 n.2 (BIA 1996).
Circuit courts, including the United States Court of Appeals for the Fifth
Circuit, in whose jurisdiction this case arises, have upheld our authority to
not consider such arguments. See Eduard v. Ashcroft, 379 F.3d 182, 195
n.14 (5th Cir. 2004); see also Prabhudial v. Holder, 780 F.3d 553, 555
(2d Cir. 2015) (“It is a basic rule of appellate review, judicial or
administrative, that the appellate body may conclude that an argument not
advanced before a lower court has been waived.”); Larios v. Holder, 608
F.3d 105, 110 (1st Cir. 2010); Pinos-Gonzalez v. Mukasey, 519 F.3d 436,
440–41 (8th Cir. 2008) (holding that the Board, as an appellate body, has
discretionary authority to refuse to consider arguments not raised below);
Torres de la Cruz v. Maurer, 483 F.3d 1013, 1022–23 (10th Cir. 2007).
Removal proceedings, which are adversarial in nature, are designed to
provide the parties with an opportunity to develop the record by presenting
evidence and testimony before an Immigration Judge, who makes the
necessary factual findings and legal conclusions based on the claims
2
On the notice of appeal, the respondent also argues that she was a member of a social
group comprised of “[t]eenage daughters with nowhere to go for protection.” However,
she does not advance this argument in her appellate brief, so we decline to address it. See
Claudio v. Holder, 601 F.3d 316, 319 (5th Cir. 2010) (holding that arguments raised in a
notice of appeal that are not advanced in an appellate brief may be deemed waived).

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Interim Decision #3912

presented. See Matter of L-A-C-, 26 I&N Dec. 516, 521 (BIA 2015). It is an
applicant’s burden to establish her claim for relief or protection on the record
before the Immigration Judge. See id. at 518–24. Therefore an applicant for
asylum or withholding of removal must “clearly indicate” on the record
before the Immigration Judge “what enumerated ground(s) she is relying
upon in making her claim.” Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009).
Where an applicant raises membership in a particular social group as the
enumerated ground that is the basis of her claim, she has the burden to clearly
indicate “the exact delineation of any particular social group(s) to which she
claims to belong.” Id. (citing Matter of A-T-, 24 I&N Dec. 617, 623 n.7 (A.G.
2008)).
While it is an applicant’s burden to specifically delineate her proposed
social group, the Immigration Judge should ensure that the specific group
being analyzed is included in his or her decision. If an applicant is not clear
as to the exact delineation of the proposed social group, the Immigration
Judge should seek clarification, as was done in this case. It is important to
our appellate review that the proposed social group is clear and that the
record is fully developed. See Matter of S-H-, 23 I&N Dec. 462, 465 (BIA
2002).
The importance of articulating the contours of any proposed social group
before the Immigration Judge is underscored by the inherently factual nature
of the social group analysis. “A determination whether a social group is
cognizable is a fact-based inquiry made on a case-by-case basis, depending
on whether the group is immutable and is recognized as particular and
socially distinct in the relevant society.” Matter of L-E-A-, 27 I&N Dec. 40,
42 (BIA 2017). Moreover, even if a particular social group is deemed
cognizable, an applicant must establish her “membership in that group, and
persecution or fear of persecution on account of [her] membership in that
group.” Id. at 43. The resolution of such issues is also inherently factual in
nature. See id. at 44 (citing Matter of N-M-, 25 I&N Dec. 526, 532 (BIA
2011)).
While we review the ultimate determination whether a proposed group is
cognizable de novo, we review an Immigration Judge’s factual findings
underlying that determination for clear error. See Matter of W-G-R-, 26 I&N
Dec. 208, 209–10 (BIA 2014), vacated in part and remanded on other
grounds by Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016); 8 C.F.R.
§ 1003.1(d)(3)(i), (ii) (2017). Where, as here, an applicant delineates a social
group for the first time on appeal, the Immigration Judge will not have had an
opportunity to make relevant factual findings, which we cannot do in the first
instance on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv); see also Matter of S-H-,
23 I&N Dec. at 465. Indeed, absent other dispositive findings, a remand for
further fact-finding and a new decision may be unavoidable if an applicant is
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Interim Decision #3912

allowed to “change the description of her purported social group midstream.”
Arévalo-Girón v. Holder, 667 F.3d 79, 82 n.2 (1st Cir. 2012) (declining to
address a particular social group that is articulated for the first time on
appeal). Moreover, it would further strain the limited resources of our
already overburdened Immigration Court system to remand a case to develop
a claim that could have been raised previously.
This case illustrates the point. Before the Immigration Judge, the
respondent, through counsel, articulated a single particular social group to
which she claimed to belong. The Immigration Judge considered the group
articulated by the respondent and, based on his factual findings regarding
the lack of perceptions of Honduran society toward members of the
defined group, concluded that it lacked social distinction. See, e.g.,
Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 787 (5th Cir. 2016)
(recognizing that factual findings underlie the analysis of a group’s social
distinction); Sanchez-Robles v. Lynch, 808 F.3d 688, 691 (6th Cir. 2015). In
addition, the Immigration Judge concluded, based on the group articulated
below, that the respondent did not establish that the harm she suffered and
fears was or would be inflicted “on account of” her membership in that group,
a determination that also depends on findings of fact.
Rather than asking us to review these findings, the respondent has
articulated a new social group that is substantially different from the one
delineated below. Because this group was not advanced below, the
Immigration Judge did not have the opportunity to make the underlying
findings of fact that are necessary to our analysis of the respondent’s
eligibility for asylum and withholding of removal, and we cannot make these
findings for the first time on appeal.
The respondent was represented by counsel below and could have
advanced this newly delineated group before the Immigration Judge. 3 Even
if we construed the articulation of a new social group for the first time on
appeal as a motion to remand, such a motion would not be based on new,
previously unavailable material evidence. See Matter of Coelho, 20 I&N
Dec. 464, 471–73 (BIA 1992) (outlining the requirements for a motion
to remand). Accordingly, we decline to remand proceedings for the
Immigration Judge to make factual findings regarding the respondent’s new
particular social group, and we will not consider this group in the first
instance on appeal. See, e.g., Baltti v. Sessions, 878 F.3d 240, 244–45
(8th Cir. 2017) (finding no jurisdiction to review a newly defined social
3

The respondent argues that the newly defined social group is supported by Matter of
A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). That case was decided prior to the respondent’s
removal proceedings, so she had ample opportunity before the Immigration Judge to
articulate a proposed particular social group on this basis.

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Interim Decision #3912

group because the claim based on “membership in that narrowed social
group” had not been raised below); Juarez v. Sessions, 693 F. App’x 668,
669 (9th Cir. 2017) (same); Duarte-Salagosa v. Holder, 775 F.3d 841, 845
(7th Cir. 2014) (declining to address a particular social group raised for the
first time on appeal); Arévalo-Girón, 667 F.3d at 82 n.2 (same). 4

III. CONCLUSION
The Immigration Judge found that the social group articulated by the
respondent was not cognizable, and the respondents do not dispute this
finding on appeal. We decline to consider the proposed social group
that has been presented for the first time on appeal. We will therefore
affirm the Immigration Judge’s denial of the applications for asylum and
withholding of removal. 5 Accordingly, the respondents’ appeal will be
dismissed.
ORDER: The appeal is dismissed.

4

Our decision in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), does not endorse
allowing applicants to change their particular social group claims on appeal. But see
Paloka v. Holder, 762 F.3d 191, 198 (2d Cir. 2014) (citing Matter of M-E-V-G- and
remanding where the applicant “refined her particular social group during her appeal”).
We decided M-E-V-G- after it had been litigated at length before the Third Circuit,
during which time the court modified the contours of the applicant’s proposed
particular social group. See Matter of M-E-V-G-, 26 I&N Dec. at 252 n.17 (citing
Valdiviezo-Galdamez v. Att’y Gen. of U.S., 502 F.3d 285, 290 & n.3 (3d Cir. 2007));
see also Valdiviezo-Galdamez v. Att’y Gen. of U.S., 663 F.3d 582, 588–89 (3d Cir. 2011).
In that case, we were bound to follow the Third Circuit’s decision, including its
modification of the proposed social group.
5
The Immigration Judge also denied the respondent’s application for protection under
the Convention Against Torture. Because she has not meaningfully challenged that denial,
we deem the issue waived. See Matter of N-A-I-, 27 I&N Dec. 72, 73 n.1 (BIA 2017).

193


Interim Decision #1553

Warta OF BRANTIGAN

In Visa Petition Proceedings
A-14680158
Decided by Board February 8, 1966
ru vigil petition Proceedings the burden of proof to establish eligibility for the
benefit sought rests with the petitioner, and in the absence of proof of the
legal termination of a U.S. citizen petitioner's prior marriage, reliance on
the presumption of validity accorded by California law to his subsequent
ceremonial marriage in that State to beneficiary is not satisfactory evidence
of the termination of his prior marriage and is insufficient by itself to sustain petitioner's burden of proof of a valid marriage on which to accord
beneficiary nonquota status.

The case comes forward on motion of counsel that the Board reopen the proceedings and reconsider its decision rendered on October
28, 1965.
The record relates to a native of the Philippines, a naturalized
citizen of the United States, who seeks nonquota status on behalf
of the beneficiary, a native and citizen of the Philippines. The
parties were married on February 28, 1065 at San Francisco,
In our decision of October 28; 1965 we relied upon the Petition
of Sam Boo, 63 F. Supp. 439 (N.D. Cal. S.D., 1945), where the petitioner rested on a presumption of validity accorded by California
law to his marriage to an American citizen, and the court held that
the burden of proof required of an applicant for United States citizenship never shifts, found there - was no satisfactory evidence of the
dissolution of the prior rharriag,e, and that the presumption of validity was not a sufficient basis upon which to sustain the burden of
proving a valid marriage as the basis of a claim to eligibility for

citizenship. We held the reliance upon presumption as to the dissolution of a prior marriage was unsatisfactory evidence of the termination of the prior marriage. We noted that in the event the
petitioner instituted an action (of which the Service would be no493

Interim Decision #1553
tified) and secured a declaratory judgment affirming the validity of
- his marriage, a motion to reopen would be entertained.
In the present motion counsel indivates that a declaratory judgment
in the California courts as to the validity of the marriage cannot be
obtained and seeks to differentiate Petition. of Sam Hoo on the
ground that the petitioner in that case knew his second wife to be
alive within the five-year period antedating his California marriage,
that he had no reason to believe her dead when he married his American wife and that she did not 'die until -the year after such marriage took place. .
'While the facts of the cited case are as recited by counsel, the holding of the court appears to go further. The court stated that it may
well be the validity M petitioner's California. marriage, if attacked
by an interested party, would be sustained under California law because of the presumptions indulged in and recognized by the California courts. These presumptions clearly find their rationale in
the laudable desire to sustain, in the public interest and well being,
the stability of the marriage status in matters relating to legitimacy,
inheritance, and other relationships growing out of and dependent
upon the marital status_ But the burden upon petitioner, when he
seeks American citizenship, is different. The presumptions of California law must give way to the burden of proof required of an
applicant for United States citizenship. The court held that the evidence as to the validity of petitioner's California marriage was 'not
satisfactory; that citizenship is not to be bestowed upon an applicant
by stowing that he has indulged in a ceremony of marriage with an
American citizen spouse which would leave the door open to fraud
if an applicant could rest his case upon a ceremony of marriage in a
so-called presumption of validity under California law. The burden
of proof never shifts from a petitioner for citizenship to the Government and the petitioner must by satisfactory evidence establish
the validity of his marriage before he may acquire the valued gift of
citizenship. The court overruled a recommendation by the Naturalization. Service that the petition be granted and instead denied the
petition.

In Petition of Lujan, 114 F. Supp. 150 (D.C. Guam, 1956), the
petitioner, a citizen and resident of the Philippines, obtained a Mex-

ican mail-order divorce from her first husband in 1941 and married
her United States citizen husband in 1951. The court held the mail
•order Mexican divorce was invalid but the petitioner contended that
the court should follow the California law to the effect that the legality
a. regularly solemnized marriage is presumed and that the
494.

Interim Decision #1553
burden of proof is upon him who seeks to attack such marriage, even
though such burden might involve the proof of a negative, citing
sections, 61 of the California Civil Code and the Guam Civil Code.
The court relied upon the holding of Petition of Sara Hoo, supra,
and stated that the court was making no attempt to pass upon the
validity of the-petitioner's marriage if the question were raised in a
different type of proceeding; however, the court held simply that the
petitioner had failed to sustain her burden of proof that she was the
wife of a United States citizen. 1
In visa petition proceedings, the burden of proof to establish eligibility sought for the benefit conferred by the immigration laws
rests upon the petitioner. Both the prior and present regulations 2
require that if a petition is submitted on behalf of a spouse, it must
be accompanied by a certificate of the marriage to the beneficiary
and proof of the legal termination of all previous marriages of both
spouses.
However, we note that the motion encloses an affidavit by petitioner's daughter, now in the United States, regarding the absence of
her mother. In order to give the petitioner every opportunity to
establish the. validity of his present marriage, we. will reopen the
proceedings to permit the daughter to be questioned under oath by
a Service officer regarding the absence of her mother; and to ascertain what efforts were made by the petitioner to communicate with
his first wife. A written memorandum should accompany the decision.
ORDER: It is ordered that the proceedings be reopened in accordance with the preceding paragraph and to afford the petitioner
every opportunity to establish the validity of his present marriage.
See also Matter of T—S—Y—, 7 I. & N. Dec. 582.
"8 CFR 205.5(b) and 8 CFR 204.2(d) (2).
2

405