Interim Decision #2194

MATTER OF GRAZLEY

In Deportation Proceedings
A-13768404

Decided by Board April 12, 1973
(1) Conviction of "false pretence" in violation of the provisions of section 319 or
320 of the Criminal Code of Canada, a crime involving moral turpitude, which
resulted in a sentence of 7 days imprisonment, is classifiable as a "petty
offense" within the exception provisions of section 212(a)(9) of the Immigration
and Nationality Act.
(2) Where cash was the object of theft, conviction of "theft" in violation of section
283 of the Criminal Code of Canada is conviction of a crime involving moral
turpitude.

CHARGE:
Order: Act of 1952--Section 241(a)(1) [8 U.S.G. 1251(a)(1)]— Excludable at
entry under section 212(a)(9), as alien who has been
convicted of crime involving moral turpitude, to wit,
theft under $50.00 and false pretence.

ON BEHALF OF RESPONDENT:

Leonard W. Moen, tsquire
1501 Washington Building
Tacoma, Washington 98402

The respondent, a native and citizen of Canada, appeals from
the March 1, 1973 decision of the immigration judge, fmding him
deportable on the above charge. The appeal will be dismissed.
The respondent admitted the first three allegations in the order

to show cause; allegations 4 and 5, concerning convictions in
Canada for "theft under fifty dollars" and "false pretence," were
established by the Service by the introduction of certified copies of
the conviction records. The immigration judge found, and we
agree, that the allegations in the order to show cause were
established by clear, convincing, and unequivocal evidence. The
immigration judge also concluded that the charge in the order to
show cause was sustained. We agree.
Section 241(a) of the Immigration and Nationality Act provides:
"Any alien in the United States (including an alien crewman)
shall, upon the order of the Attorney General, be deported who330

Interim Decision #2194
(1) at the time of entry was within one or more of the classes of
aliens excludable by the law existing at the time of such entry...."
Section 212(a) of the Act provides, in pertinent part:
Except as otherwise provided in this Act, the following classes of aliens shall
be ineligible to receive visas and shall be excluded from admission into the
United States: (9) Aliens who have been convicted of a crime involving moral
turpitude (other than a purely political offense)... ; except that aliens who have
committed only one such crime while under the age of eighteen years may be
granted a visa and admitted if the crime was committed more than five years
prior to the date of the application for a visa or other documentation, and more
than five years prior to date of application for admission to the United States,
unless the crime resulted in confinement in a prison or correctional institution,
in which case such alien must have been released from such confinement more
than five years prior to the date of the application for a visa or other documentation, and for admission, to the United States. Any alien who would be excludable because of the conviction of a misdemeanor classifiable as a petty offense
under the provisions of section 1(3) of title 18, United States Code, by reason of
the punishment actually imposed, ... may be granted a visa and admitted to the
United States if otherwise admissible: Provided, That the alien has committed
only one such offense. . . ." (Emphasis supplied.)
,

In his appeal the responded contends that the crimes of which
he was convicted were misdemeanors, and that they did not
involve moral turpitude. A crime may or may not involve moral

turpitude whether it is a felony or a misdemeanor, Gonzales v.
Barber, 207 F.2d 398, 400 (C.A. 9), affirmed 347 U.S. 637 (1953);
Tillinghast v. Edmead, 31 F.2d 81, 83-84(C.A. 1, 1929). For purposes
of this appeal, the following questions must be answered: (1) Does
the crime in question involve moral turpitude? (2) If so, is it a
misdemeanor? (3) If so, is it classifiable as a petty offense under
Title 18 United States Code 1(3) by reason of the punishment
actually imposed? (4) Has the alien committed only one such
offense? If moral turpitude is not involved, or if all of the above
questions are answered yes, then the alien is not excludable under

section 212(aX9).

United States standards are applied to determine whether or
not a crime committed in a foreign country involves moral turpitude, Mercer v. Lence, 96 F.2d 122, 124 (C.A. 10), cert. den. 305 U.S.
611 (1938); U.S. ex rel. Mci:enzie v. Savoretti, 200 F.2d 546 (C.A. 5,
1952); Matter of M—, 9 I. & N. Dec. 132, 134 (BIA, 1960). The
classification of a crime committed in a foreign country as a
misdemeanor or a felony is likewise made according to United
States standards; i.e., the offense is examined in the light of the
maximum punishment imposable for an equivalent crime de..

scribed in. Title 18 of the United States Code or, if an equivalent
offense is not found there, Title 22 of the D.C. Code, Giammario v.
331

Interim Decision #2194
Harney, 311 F.2d 285, 286 (C.A. 3, 1962); Matter of Adamo, 10 I. & N.
Dec. 593, 595 (BIA, ,1964); Matter of T—, 6 I. & N. Dec. 508, 517 (AG,
1955). A misdemeanor is any offense other than one punishable by
death or by imprisonment for a term exceeding one year, 18 U.S.C.
1(1), (2).
The respondent was convicted under the Criminal Code of
Canada of "false pretence." The Canadian statute is not set forth
in the record, nor is the section number given. We assume, after
consulting the index to the Criminal Code of Canada, that the
appropriate provisions are in sections 319 and 320 of the Code.
Section 319 defines a false pretense as a knowing misrepresentation of a past or present fact, made with fraudulent intent to
induce the person to whom it is made to act upon it. Section 320

describes various offenses in which a false pretense may be
involved. Because of the element of fraud, any of these offenses
would be crimes involving moral turpitude, Jordan v. DeGeorge,
341 U.S. 223, 232, 71 S. Ct. 103, 95 L. Ed. 886, 893 (1951); Burr v.
INS, 350 F.2d 87, 91 (C.A. 9, 1965), cert. den. 383 U.S. 915 (1966);
Matter of McLean, 12 I. & N. Dec. 551, 552 (BIA, 1967).
There is no equivalent crime in the United States Code, but
there is in the D.C. Code, section 22-1301, false pretenses. There
the equivalent crime is a misdemeanor, as defined in 18 U.S.C. 1(2),
and by reason of the punishment actually imposed—seven days in
the Common Gaol of the County of Vancouver—it is a petty
offense, 18 U.S.C. 1(3), i.e., the punishment actually imposed was less
than six months or $500 or both. If this were the only crime involving moral turpitude committed by the respondent, he would not be
deportable by reason of the petty offense exception and proviso of
section 212(a)(9) of the Immigration and Nationality Act.
However, the respondent was also convicted of "theft" under the
Criminal Code of Canada and sentenced to 30 days in the Common
Gaol of the County of Vancouver. Once again the provisions of the
statute are not set forth in the record, nor is the section number
given, and this makes our task much more difficult; but our

research reveals that the relevant statute evidently is section 283
of the Criminal Code of Canada. That section reads, in pertinent
part, as follows:
(1) Every one commits theft who fraudulently and without colour of right
takes, or fraudulently and without colour of right converts to his use or to the
use of another person, anything whether animate or inanimate, with intent,
(a) to deprive, temporarily or absolutely, the owner of it or a person who has
a special property or interest in it, of the thing or of his property or
interest in it, ...
' (2) A person commits theft when, with intent to steal anything, he moves it
or causes it to move or to be moved, or begins to cause it to become movable.
... (Emphasis supplied.)

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Interim Decision #2194
We note that this section provides for conviction for theft
whether the taking is permanent or temporary. Ordinarily, a
conviction for theft is considered to involve moral turpitude only
when a permanent taking is intended. Since section 283 includes
some offenses which do involve moral turpitude and others which
do not, it is treated as a "divisible" statute. Therefore it is
permissible to look beyond the statute to consider such facts as
may appear from the record of conviction to determine whether
the conviction was rendered under the portion of the statute
dealing with crimes that do involve moral turpitude. See Matter of
T— , 2 I. & N. Dec. 22 (AG, 1944), which related to a conviction

under an earlier version of section 283.
The record of conviction in the present case states that the
respondent "... unlawfully did commit theft of a change purse
containing money and stamps of a total value not in excess of fifty
dollars. ..." While we have no direct evidence as to what the
respondent's intent was at the time he took the purse, we believe
it is reasonable to assume, since cash was taken, that he took it
with the intention of retaining it permanently. We hold, therefore,
that the circumstances surrounding the offense in question indicate that the respondent was convicted for theft involving a
permanent taking. Consequently, we hold that this offense involved moral turpitude. The fact that the theft may have been
petty is immaterial to the question of whether or not it involved
moral turpitude, Brett v. INS, 386 F.2d 439 (C.A. 2, 1967), cert. den.
392 U.S. 935 (1968); Morasch v. INS, 363 F.2d 30, 31 (C.A. 9, 1966).
As indicated above, even if this were a misdemeanor classifiable as
a petty offense under 18 U.S.C. 1(3), the exception for a petty
offense contained in section 212(a)(9) of the Immigration and
Nationality Act would not apply because the respondent was
convicted of more than one such offense.
It does not help the respondent that these crimes were committed more than eight years ago. The exception for crimes committed and time served in prison more than five years before the date
of application for admission applies only to aliens who, while under
the age of IS, have committed only one such crime. The respondent was over 18 when these crimes were committed, and he was

convicted of more than one crime involving moral turpitude.
Since the respondent has withdrawn his request for voluntary
departure, we need not reach the question of his eligibility for such
relief or the exercise of the Attorney General's discretion in his
behalf.
Accordingly, we agree with the immigration judge that the
respondent was excludable at the time of entry because he had
333

Interim Decision #2194
committed a crime involving moral turpitude, and that he is,
therefore, deportable as charged.
ORDER: The appeal is dismissed.

334


Interim Decision #Z146

MATTER OF KHAN

In Deportation Proceedings
A-30593139

Decided by Board April 17, 1972
Respondent, who was admitted in possession of an immigrant visa issued to him
as an alien child "accompanying or following to join" his father but who
preceded his father, the principal alien, to the United States, was not an
"accompanying" alien within the meaning of section 203(a)(9) of the Immigration and Nationality Act, as amended; further, his immigrant status, which
was contingent upon the continuing immigrant status of his father, was
terminated upon the father's death prior to respondent's admission, notwithstanding he lacked knowledge of such death and notwithstanding the approval of the father's visa petition had not been revoked. Hence, respondent is
deportable because he was not of the status specified in his visa and was not
in possession of a valid immigrant visa at entry.
CHARGES:
Order: Aot of 1959—Reetion 241 (O(1 ) f8 U.S.C. 1251 (aX1)]---Excludable at time of

entry—not of status specified in immigrant visa under
section 203(a)(9) [8 U.S.C. 1153(aX9)]
Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of
entry (section 212(a)(20))—Immigrant, not in possession
of a valid immigrant visa
ON BEHALF OF RESPONDENT:
David Carliner, Esquire

ON BEHALF OF SERVICE:

Irving A. Appleman
Appellate Trial Attorney

Pennsylvania Building
Washington, D.C. 20004
A. W. Hargreaves, Esquire
30 Hotaling Place

San Francisco, California 94111
(Counsel of record)

This is an appeal from a decision of a special inquiry officer
dated October 29, 1971, finding the respondent deportable on the
charges in the order to show cause. He was granted voluntary
departure. The appeal will be dismissed.
The respondent, his father and a brother, all natives and
citizens of Pakistan, obtained immigrant visas from the American
Consulate General at Lahore, Pakistan un January 29, 1971.

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Interim Decision #2143
Respondent's father obtained an immigrant visa.(P5-1) under the
provisions of section 203(a)(5) of the Immigration and Nationality
Act as the brother of a United States citizen. Respondent and his
brother obtained immigrant visas (P5-3's) under the provisions of
section 203(a)(9) of the Act as alien children accompanying or
following to join a parent who had been issued a fifth preference
immigrant visa. Respondent's father and his brother were issued
visas valid for four months but respondent was issued a visa valid
for only one month because he was eligible to enter the United
States only if he arrived on or before March 8, 1971, his twentyfirst birthday. He left Pakistan on February 26, 1971 and was

admitted to the United States as a permanent resident at New
New York on March 1, 1971. He was then in possession of
the P5-3 immigrant visa. His father had died in Pakistan on
February 9, 1971 and respondent did not know of the death until
after his admission to the United States.
Counsel for respondent contends that because the father's visa
petition had not been revoked, the immigrant visa which respondent presented was valid for admission to the United States.
Counsel also contended that the word "accompanying" in section
York,

203(a)(9) of the Act should be given an elastic definition to cover a

relative preceding the principal alien to the United States.
Paragraph (9) of section 203(a) provides that "A spouse or child
as defined in section 101(b)(1)(A), (B), (C). (D), or (E) shall. if not
otherwise entitled to an immigrant status and the immediate
issuance of a visa or to conditional entry under paragraphs (1)
through (8), be entitled to the same status, and the same order of
consideration provided in subsection (b), if accompanying, or following to join, his spouse or parent." (Emphasis added.) The State
Department regulation, 22 CFR 42.1, defines "accompanying" or
"accompanied by" as meaning an alien in the physical company of

a principal alien, and concludes with this significant statement:
"An accompanying relative may not precede the principal alien to
the United States."
A definition of "accompany" is not included in the Act, but we
observe that among the meanings attributed to the word in
Webster's New International Dictionary, 2d. edition are "to go
along with," and "to go with or attend as a companion or associate." There is an explanation that the word implies the idea of
going with someone or companionship. We conclude that the
statutory language of section 203(a)(9) is not susceptible of the
elastic construction urged by counsel. Respondent was not accompanying or following to join his father at the time he arrived in the
United States and his immigrant visa was not valid for admission.
His lack of knowledge of his father's death is not relevant.
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Interim Decision #2143
Another issue that arises is the effect of the father's death on
respondent's immigrant status. The issuance of an immigrant visa
to a spouse or child under section 203(aX9) is dependent upon the
existence of the immigrant status of the principal alien. Thus, the
validity of respondent's immigrant visa depended on the continued
immigrant status of his father, the principal alien. Death terminated the father's immigrant status and thereby stripped respondent of his status.
There is no dispute as to the basic facts in this matter. It is our
conclusion that respondent did not have the status specified in hii
immigrant visa and was not in possession of a valid immigrant
visa at the time of his entry. The special inquiry officer correctly
found him deportable on both charges by evidence which is clear,
convincing and unequivocal. Accordingly, the following order will
be entered.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be 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 that, in the event of failure so to depart, the
respondent shall be deported as provided in the special inquiry
officer's order.

124


Interim Decision #2321

MATTER OF TUITASI

In Deportation Proceedings
A-20053062
Decided by Board September 26, 1974
One born in Western Samoa in 1952 who was adopted in American Samoa in 1971 by two
nationals of the United States does not acquire United States nationality under section
308 of the Immigration and Nationality Act. One does not acquire United States
nationality merely by asserting an allegiance to the Unites States.

CHARGE:
Order. Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)].—Nonimmigrant—remained
longer.
ON BEHALF U• RESFUNUENT:

Byron B. Park, Esquire

681 Market Street
San Francisco, California 94105

In a decision dated March 15, 1974, an immigration judge found the
respondent deportable, but granted her the privilege of voluntary departure. The respondent, who contests the finding of deportability, has
appealed from that decision. The appeal will be dismissed.
The respondent, whose natural parents were natives of Western
Samoa, was born in that country in 1952. When she was approximately
one year old, the respondent was taken to American Samoa by a person
she describes as her aunt. She was raised in American Samoa and
formally adopted in 1971 by two nationals of the United States. The
respondent has never returned to Western Samoa, and the record does

not disclose the fate of her natural parents.
The respondent testified that in 1969 she submitted a written request .
to Western Samoan authorities for the issuance of a passport. This
request evidently was denied, and respondent thereafter obtained a
document entitled "Certificate of Identity" from the Office of the Attorney General in American Samoa. This document describes her birth,
residence and adoption. It also contains the statement that "[s]he is not
entitled to either a Western Samoan Passport or a United States National Certificate of Identity."
The respondent entered the United States in August of 1972 as a
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Interim Decision #2321
visitor. She received a change of nonimmigrant status conditioned upon
the posting of a maintenance of status bond. She failed to post the bond
and overstayed her visit. The immigration judge found her deportable
as a nonimmigrant who has remained beyond the authorized length of
her stay. The only issue in the case is whether she is a noncitizen
national of the United States, and thus not deportable.
The respondent bases her claim to United States nationality upon
section 101(a)(22) of the Immigration and Nationality Act. Section 101
(a)(22) provides:
The term "national of the United States" means (A) a citizen of the United States, or

(B) a person who, though not a citizen of the United States, owes permanent allegiance
to the United States.

The respondent maintains that she owes permanent allegiance to the
United States, and therefore qualifies as a national. The acquisition of
nationality for a noncitizen national, however, is not governed by section 101(a)(22); it is governed instead by section 308. 1 Section 308 of the
Act provides:
Unless otherwise provided in section 301 of this title, the following shall be nationals,
but not citizens of the United States at birth;
(1) A person born in an outlying possession of the United States on ur after the date
of formal acquisition of such possession;
(2) A person born outside the United States and its outlying possessions of parents
both of whom are nationals, but not citizens, of the United States, and have had a
residence in the United States, or one of its outlying possessions prior to the birth of
such person; and
(3) A person of unknown parentage found in an outlying possession of the United
States while under the age of five years, until shown, prior to his attaining the age of
twenty-one years, not to have been born in such outlying possession.

American Samoa is an outlying possession of the United States. Section
101(a)(29), Immigration and Nationality Act. The respondent, however,
was not born in American Samoa, nor were her natural parents nationals of the United States. Accordingly, she did not acquire United
States nationality at birth under the terms of section 308. Except for the
acquisition of nationality in conjunction with the acquisition of citizenship, the Act provides no other means by which the respondent could
have acquired United States nationality.
Congress has established rigorous procedures which govern the acquisition of both lawful permanent resident status and United States
citizenship for aliens. Nationality has attributes akin to each of these.
See e.g. Matter of B—, 6 I. & N. Dec. 555 (BIA 1955). We cannot accept
'We are not concerned in this case with special legislative enactments or with any
acquisition of nationality which may occur upon the transfer of territory between nations.
See mat, cfg 9 I. &N_ Doe 729 (R TA 1949); 8 M. Whiteman, Digest of International
Law 104-113 (1967).
.

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Interim De Asion #2321
the respondent's unstated, but underlying, assumption that Congress
would permit an alien to acquire United States nationality merely by

asserting ar allegiance to the United States.
The respondent is an alien; her deportability has been established by
evidence that is clear, convincing, and unequivocal. The question of
whether the respondent has a status in American Samoa which will
permit her to reside there is not before us.
ORDER: The appeal is dismissed.
Further cyder: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 31 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 proyided in the
immigration judge's order.

104


Interim Decision #1378

AtAl•mai OF ACOSTA
In EXCLUSION Proceedings
A-13312393
Derided by/ Rnard August 12,1964
Expatriation under section 349(a) (4) (B), Immigration and Nationality Act,
is established when it is demonstrated that an oath of allegiance is required
for the specified employment (Cuban National Police) and the individual concerned held such employment.

EXCLTIDABLE: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182]—Immigrant, no
visa.

The special inquiry officer, in an order dated April 3, 1964, directed
that the applicant be admitted to the United States as a citizen hereof.
The. Service appeal from that decision, which brings the case before
this Board for consideration, will be sustained. The applicant's exclusion from the United States on the above-stated ground will be
ordered.

The record relates to a 42-year-old married male, a native of Cuba,
who acquired United States citizenship by virtue of naturalization on
September 9, 1955. On July 1, 1957, he proceeded to Cuba and within.

a brief period of time after arrival there, through the efforts of his
brother who was a captain of the Cuban National Police, was appointed to that organization. 1 He retained his position therein from
July of 1957 until. January 13, 1959. On the latter date, he was arrested by officials of the Castro Government and imprisoned until
January 19, 1962. He arrived in the United States on December 27,
1962, in the status of a Cuban refugee and was paroled into this
country as such. When he eventually thereafter decided to advance
his claim to United States citizenship, this exclusion proceeding
resulted.
The crux of this case is whether the applicant lost his United States
citizenship, by virtue of his employment in the Cuban National Po1

Ee had been a member thereof for a period of about 15 days in 1952.

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Interim Decision 4t1378
lice, under the provisions of section 349(a) (4) (B) of the Immigration and Nationality Act (8 U.S.C. 1481), which reads as follows:
From, and after the effective date of this Acts a person who is a national of

the United States whether by birth or naturalization, sball lose his nationality
by—accepting, serving in, or performing the duties of any office, post, or employment under .the government of a foreign state or a political subdivision
thereof, for which office, post, or employment an oath, affirmation, or doolara.
thin of allegiance is required; (Emphasis supplied.)

The special inquiry officer has answered this question in the negative, on the basis of a conclusion that an actual taking of an oath of
allegiance had to be established, and a finding that the Government
had not met its burden of proof in establishing this fact. We, however, disagree with the special inquiry officer, holding that the use of
the word "required" in the statute does not have the significance attached to it by the special inquiry officer. Accordingly, and for the
reasons hereinafter set forth, his decision will be reversed.
In enacting subsection (2) of the statute here under consideration,
the Congress of the United States specifically provided that loss of
nationality would result from the "taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state
or a political subdivision thereof." In view of this prior provision
within the statute, the special inquiry officer's interpretation renders
subsection (4) (B) thereof completely unnecessary. In other words,
if the fact of taking the oath was essential, the Congress would have
stopped with the enactment of subsection (2) and subsection (4) (B)
would be meaningless. We cannot and will not attribute such a useless gesture to .the Congress of the United States. It is, therefore,
our conclusion that expatriation is established under the statutory
provision here under consideration when it is demonstrated that an
oath of allegiance is "required" for a certain position and that the
party concerned held such a position. In reaching this result, we have
applied the fundamental rule of statutory construction that ordinary
words must be given their ordinary meaning.
Thus, we take cognizance of the fact that lexicographers unanimously accord to the word "required" the essential element of compulsion. Also, Law Decree 1958 of January 25, 1955, the organic
law of the Cuban National Police, set forth in a letter from the law
library of the Library of Congress, dated July 30, 1963 (Ex. No. 6) ,
Article 197, sets forth that an oath of allegiance was a "must" for any
person entering the service of the National Police. In addition, the
Government produced as a witness one Colonel Esteban Ventura
Novo who from 1956 to 1957 was in charge of the training, education
2

December 24, 1952.

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Interim Decision #1378
and recruiting policemen in Cuba and who testified (Ex. 7) that he
blew from his own knowledge that all members of the Cuban National Police were required to subscribe to the oath of allegiance since
he was the person who had to administer the oath; and that the oath
was taken before the Cuban flag. He further testified that it was not
possible for any person, through the exercise of any political influence

whatsoever, to be appointed to the Cuban National Police and not be
required to take the oath because he would never have permitted it.
The Government also produced an affidavit signed by a Colonel
Marino Paget, a Lieutenant Colonel with the Cuban National Police
who retired after 27 years of service in that organization, wherein the
affiant set forth that he had personal knowledge that any person
entering on duty with the Cuban National Police was required to take
an oath of allegiance to the Republic of Cuba. Finally, on this point,
the applicant did not deny this evidence, but merely claimed that he
did not remember whether he took the oath. Under these circumstances, we find that it is established, not only by a. preponderance of

the evidence but also clearly and convincingly, that an oath of allegiance to the Cuban Government was "required" of the position
occupied in Cuba by this applicant.
There is no question in our mind but that the duties performed by
the applicant in connection with his position in the Cuban National
Police constituted serving in the employment of a foreign state within
the contemplation of this statute. As will be made clear by a discussion of the oath which is a, necessary concomitant of that employment,
infra, it is clear that the position encompassed service in or in. behalf

of a foreign government, the performance of which required absolute
allegiance to the employing government and necessarily excluded allegiance to the Government of the United States. That is the test to
be applied under this section of the law (Kamada v. Dulles, 145 F.
Supp. 457) .
The letter from the Library of Congress previously referred to (Ex.
6) sets forth that the oath of office which must be taken by any person
entering the service of the Cuban National Police, whether as officer,
cadet, or member of the corps, is as follows :
. . ., in the service of the Republic of Cuba, solemnly swear (or promise) that
I will support and defend the precepts of the Constitution, Laws and Government of the Republic, against all national or foreign enemies ; that I accept this
duty freely, without mental reservation or intention to avoid its performance,
and that I shall discharge well and faithfully the duties of my Mee.

Certainly, there can be no doubt that the foregoing constitutes an oath
within the meaning of this section of the law. As we read it, that oath
places the person taking it in complete subjection to the state to which
it is taken, at least for the period of contract, so that it is impossible
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Interim Decision #1878
for him to perform the obligations of citizenship of this country. This
is the proper test to be applied in such a case (Fletes-Mora v. Rogers,
160 F. Stipp. 215 at 216).

Finally, on this point, no issue of duress in connection with the employment has been raised by the applicant. Also, careful analysis of
the record reveals that no such a claim could be substantiated. The
applicant, a citizen of the United States, left this country of his own
volition and proceeded to Cuba where he obtained the position in question with the influence of his brother.
Accordingly, and since the applicant lacked documents valid for
admission into the United States as an alien at the time of his abovedescribed last arrival, his excludability on the above-stated ground is
established.

ORDER: It is ordered that the Service appeal be sustained; that
the special inquiry officer's order of April a, 1964, be withdrawn; and
that the applicant be excluded and deported from the United States on
the above-stated ground.

678


Cite as 27 I&N Dec. 256 (BIA 2018)

Interim Decision #3924

Matter of Jorge Isaac SANCHEZ-LOPEZ, Respondent
Decided April 20, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The offense of stalking in violation of section 646.9 of the California Penal Code is not
“a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(2)(E)(i) (2012). Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012),
overruled.
FOR RESPONDENT: Matthew L. Hoppock, Esquire, Overland Park, Kansas
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Associate Legal Advisor

Donald W. Cassidy,

BEFORE: Board Panel: GUENDELSBERGER and PAULEY, Board Members.
Dissenting Opinion: MALPHRUS, Board Member.
GUENDELSBERGER, Board Member:

This case is before us on remand from the United States Court of Appeals
for the Ninth Circuit for further consideration of the respondent’s
removability under section 237(a)(2)(E)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012), as an alien convicted of
a crime of stalking. The respondent’s appeal will be sustained and the
proceedings will be terminated.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Peru who was admitted to the
United States as a lawful permanent resident in 1993. On April 19, 2011,
he was convicted of stalking under section 646.9(b) of the California Penal
Code. 1 Based on this conviction, the Department of Homeland Security
1

Section 646.9 of the California Penal Code provides, in relevant part, as follows:
(a) Any person who willfully, maliciously, and repeatedly follows or willfully and
maliciously harasses another person and who makes a credible threat with the intent
to place that person in reasonable fear for his or her safety, or the safety of his or her
immediate family is guilty of the crime of stalking, punishable by imprisonment in a

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(“DHS”) initiated removal proceedings against the respondent, charging him
with removability under section 237(a)(2)(E)(i) of the Act. 2 On March 31,
2012, the Immigration Judge found the respondent removable and denied his
application for relief. We dismissed the respondent’s appeal in Matter of
Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), holding that the offense of
stalking in violation of section 646.9 of the California Penal Code is “a crime
of stalking” under section 237(a)(2)(E)(i) of the Act.
On January 28, 2014, the Ninth Circuit granted the Government’s
unopposed motion to remand so that we could reconsider our holding in
Matter of Sanchez-Lopez. On March 23, 2015, we reaffirmed our decision,
concluded that the respondent’s conviction is for a crime of stalking under
section 237(a)(2)(E)(i), and dismissed his appeal. On June 24, 2015, the
Ninth Circuit granted the Government’s second unopposed motion to remand
for us to further reconsider the respondent’s removability.
On remand, the respondent argues that his conviction for stalking in
violation of section 646.9 is not for a crime of stalking under section
237(a)(2)(E)(i) of the Act. The DHS counters that the respondent’s State
offense is a predicate for removal under that section of the Act. 3 After further
consideration, we conclude that the respondent’s conviction under section
646.9 is not for a crime of stalking under section 237(a)(2)(E)(i). We will
therefore overrule Matter of Sanchez-Lopez and vacate our prior orders in
this case to the extent that they conclude otherwise.

county jail for not more than one year, or by a fine of not more than one thousand
dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the
state prison.
(b) Any person who violates subdivision (a) when there is a temporary restraining
order, injunction, or any other court order in effect prohibiting the behavior described
in subdivision (a) against the same party, shall be punished by imprisonment in the
state prison for two, three, or four years.
....
(g) For the purposes of this section, “credible threat” means a verbal or written
threat . . . made with the intent to place the person that is the target of the threat in
reasonable fear for his or her safety or the safety of his or her family . . . .
2

The DHS also charged the respondent under section 237(a)(2)(A)(iii) of the Act, as an
alien convicted of an aggravated felony. However, the Immigration Judge declined to
sustain that charge, which is not the subject of this appeal.
3
The DHS made this argument in a supplemental brief, which it submitted in response to
our request to both parties for supplemental briefing. Although the respondent opposes the
DHS’s submission of its supplemental brief, we will consider it in the exercise of our
discretion. See 8 C.F.R. § 1003.3(c) (2017).

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II. ANALYSIS
Section 237(a)(2)(E)(i) of the Act provides that an “alien who at any time
after admission is convicted of . . . a crime of stalking . . . is deportable.” In
Matter of Sanchez-Lopez, 26 I&N Dec. at 74, we defined the “crime of
stalking” in section 237(a)(2)(E)(i) as an offense containing the following
elements: “(1) conduct that was engaged in on more than a single occasion,
(2) which was directed at a specific individual, (3) with the intent to cause
that individual or a member of his or her immediate family to be placed in
fear of bodily injury or death.” 4 (Emphasis added.) Applying this generic
definition, we held that the offense of stalking under section 646.9 is
categorically a “crime of stalking” under section 237(a)(2)(E)(i).
Citing Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and United
States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), the Government
sought a remand in its second unopposed motion to allow us “to reconsider
whether there is a ‘realistic probability’ that California would apply section
646.9[] to conduct” falling outside the definition of a “crime of stalking”
outlined in Matter of Sanchez-Lopez. More precisely, the Government asked
us to reconsider whether there is a “realistic probability” that California
would apply section 646.9 to conduct committed with the intent “to cause
and [which] causes a victim to fear ‘safety’ in a non-physical sense.”
According to the Supreme Court, “to find that a state statute creates a
crime outside the generic definition of a listed crime in a federal statute” there
must be “a realistic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the generic definition.”
Duenas-Alvarez, 549 U.S. at 193. The Ninth Circuit has explained that a
respondent “can show the requisite ‘realistic probability’” in two ways.
Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. 2015). First, he can
“point to his own case or other cases in which the state courts in fact did
apply the statute in the special (nongeneric) manner for which he argues.”
Id. (quoting Duenas-Alvarez, 549 U.S. at 193). Second, “if ‘a state statute
explicitly defines a crime more broadly than the generic definition, no “legal
imagination” is required to hold that a realistic probability exists that the state
will apply its statute to conduct that falls outside the generic definition of the
crime.’” Id. at 1009–10 (quoting Grisel, 488 F.3d at 850). Thus, “when a
‘state statute’s greater breadth is evident from its text,’ a [respondent] need
4

We also recognized that there is a fourth element involving the subjective and objective
consequences of the stalker’s conduct, “on which there is no clear consensus in the State
statutes.” Matter of Sanchez-Lopez, 26 I&N Dec. at 74. However, we declined “to resolve
the contours of the fourth element relating to the consequences of the conduct because”
section 646.9 requires proof “that both the targeted individual and a reasonable person in
the circumstances” was or would be “placed in fear of bodily injury or death.” Id.

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not point to an actual case applying the statute of conviction in a nongeneric
manner. [He or she] may simply ‘rely on the statutory language to establish
the statute as overly inclusive.’” Id. at 1010 (citations omitted).
In its motion, the Government has cited California and Ninth Circuit
cases in which the courts have declined to consider the victim’s “fear for his
or her safety or the safety of his or her family” under section 646.9 as being
limited to a fear of death or bodily injury. However, our survey of California
cases shows that the conduct prosecuted under section 646.9 invariably
involves statements and patterns of conduct that reasonably imply an intent
to cause the victim to either personally fear physical harm or fear such harm
to his or her family. 5 Further, the California cases the Government cited in
its motion involved situations where the totality of the circumstances
surrounding the defendant’s conduct implied a threat against the physical
safety of the victim or his or her family. 6

5

See, e.g., People v. Itehua, 173 Cal. Rptr. 3d 614, 617 (Ct. App. 2014) (holding that the
defendant’s pattern of behavior, including his repeated visits to the victim’s house without
permission, was “an implied threat that invited [the victim’s] resistance or escape” and thus
possible injury); People v. McPheeters, 159 Cal. Rptr. 3d 607, 618 (Ct. App. 2013)
(concluding that the defendant’s threats to beat the victim up and to shoot her “implied . . .
a credible threat based on defendant’s violent history and his pattern of conduct”); People
v. McCray, 67 Cal. Rptr. 2d 872, 881 (Ct. App. 1997) (finding that the defendant’s pattern
of past violent conduct toward the victim “tended to demonstrate both that [the defendant]
was capable of inflicting physical harm upon [his victim] and that [she] would have reason
to fear his threats might be carried out”); People v. Falck, 60 Cal. Rptr. 2d 624, 630–31
(Ct. App. 1997) (finding that the defendant’s letters to the victim could “be construed as a
threat to kill the victim or her husband” and “conveyed a credible threat” that gave her
“cause to fear him”).
6
See People v. Thimmes, No. NA076325, 2009 WL 2005598, at *4–5 (Cal. Ct. App.
July 13, 2009) (concluding that the victim’s fear for her own and her family’s safety was
reasonable where, among other things, the defendant threatened to “physically harm” her
husband); People v. Uecker, 91 Cal. Rptr. 3d 355, 366 (Ct. App. 2009) (holding that,
“[t]aken as a whole,” the defendant’s “pattern of unrelenting conduct over the course of
three weeks that toward the end became hostile and demanding” implied “a threat that
caused [the victim] to reasonably fear for her safety”); People v. Wigfall, No. 195789, 2006
WL 3365659, at *2–6 (Cal. Ct. App. Nov. 21, 2006) (finding that the defendant’s actions—
namely, following the victim to the bathroom, punching a hole in the bathroom door,
physically assaulting her, and persistently threatening to evict her—implied a threat to the
victim’s safety); People v. Theurer, No. 2003010002, 2005 WL 236761, at *3–4 (Cal. Ct.
App. Jan. 25, 2005) (finding that the defendant’s pattern of conduct, which “consisted of
harassing letters, phone calls, and visits,” was “intended to cause the victim to fear for her
safety”); People v. Zavala, 30 Cal. Rptr. 3d 398, 404 (Ct. App. 2005) (finding that the
defendant’s threat to kill his wife “caused [her] to reasonably fear for her safety”); People
v. Borrelli, 91 Cal. Rptr. 2d 851, 854, 862 (Ct. App. 2000) (upholding the judgment against
a stalker who threatened to kill the victim and her parents).

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Nevertheless, none of these California cases definitively settles whether
there is a “realistic probability” that section 646.9 would be applied to a
stalking offense committed with the intention of causing a victim to fear
nonphysical injury, either personally or to his or her family. We must
therefore examine whether “the statutory language” of section 646.9
establishes that “the statute [is] overly inclusive.” Chavez-Solis, 803 F.3d at
1010 (citation omitted) (internal quotation mark omitted).
In 1994, the California Legislature amended section 646.9 “to require that
the target of the threat need only fear for the target’s safety or that of his or
her family while deleting any requirement that the threat be ‘against the life
of, or [threaten] great bodily injury to’ the target.” People v. Zavala, 30 Cal.
Rptr. 3d 398, 404 (App. Ct. 2005) (emphasis added) (citation omitted).
Because the Legislature explicitly replaced the specific reference to death
or great bodily injury with the broader term “safety,” stalking offenses
committed with the intention of causing a victim to fear nonphysical injury,
either personally or to his or her family, may be prosecuted in California. We
therefore conclude, pursuant to Ninth Circuit law, that the statutory text of
section 646.9 establishes that there is a “realistic probability” that California
would apply the statute to conduct falling outside the definition of the “crime
of stalking” that we outlined in Matter of Sanchez-Lopez. See Chavez-Solis,
803 F.3d at 1009–10.
In addition to being overbroad, the term “safety” in section 646.9 is
“indivisible” relative to the definition of a “crime of stalking” in section
237(a)(2)(E)(i) of the Act. See Almanza-Arenas v. Lynch, 815 F.3d 469,
476–77 (9th Cir. 2016) (citing Descamps v. United States, 570 U.S. 254, 265
(2013)). As a result, we cannot resort to the record of conviction to determine
whether the respondent’s offense involved a threat that reasonably caused his
victim to fear death or bodily injury, either personally or to her family.
Although the DHS appears to concede that stalking under section 646.9
is “overbroad” relative to the definition we outlined in Matter of
Sanchez-Lopez, it asserts that we should broaden the definition of a “crime
of stalking” under section 237(a)(2)(E)(i) of the Act to meet contemporary
standards. Specifically, it argues that we should redefine the term “stalking”
in the Act based on its commonly understood meaning, either in 2012 when
we decided Matter of Sanchez-Lopez, or based on the common elements of
State and Federal stalking statutes in 2017.
We recognize that the common elements of stalking have evolved since
section 237(a)(2)(E)(i) was added to the Act in 1996, in that a number of
States have broadened the term “stalking” to cover threats of nonphysical
harm in an effort to afford greater protections to their citizens against
stalkers. However, we are constrained to define offenses “based on the
‘generic, contemporary meaning’ of the statutory words at the time the
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statute was enacted.” Matter of Cardiel, 25 I&N Dec. 12, 17 (BIA 2009)
(quoting Taylor v. United States, 495 U.S. 575, 598 (1990)); see also Matter
of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). The DHS relies on the
decision of the Supreme Court in Voisine v. United States, 136 S. Ct. 2272,
2281 (2016), which declined “to wind the clock back” to consider the
common law in discerning whether the provision at issue reached reckless
acts. But that case also looked to the legislative history and the “state-law
backdrop” that existed at the time the statute was enacted. Id. at 2280–82.
We are therefore unpersuaded to broaden the definition of the term “stalking”
under section 237(a)(2)(E) of the Act to encompass the most contemporary
understanding of that offense.
Upon reconsideration, we conclude that the offense of stalking in
violation of section 646.9 of the California Penal Code is not “a crime of
stalking” under section 237(a)(2)(E)(i) of the Act. We will therefore overrule
our decision in Matter of Sanchez-Lopez and vacate all prior orders in this
case to the extent they hold to the contrary. Accordingly, because the
respondent is not removable, his appeal will be sustained and the removal
proceedings will be terminated.
ORDER: The appeal is sustained and the removal proceedings are
terminated.

DISSENTING OPINION: Garry D. Malphrus, Board Member
I agree with the majority that we must look to the generic definition of
“stalking” when Congress enacted section 237(a)(2)(E)(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (Supp. II 1996). See Taylor
v. United States, 495 U.S. 575, 589–90, 598 (1990); see also Matter of
Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). In that respect, I disagree with
the Department of Homeland Security (“DHS”) that the Board is free to
adopt a generic definition without regard to the laws as they existed at the
time Congress added stalking as a removable offense in 1996. Modifying
legal definitions at will based on contemporary standards would conflict with
our duty to interpret statutory language consistent with congressional intent
at the time of a statute’s enactment. See Matter of Alvarado, 26 I&N Dec. at
897. However, I do agree with the DHS that the Board can and should define
the generic definition of stalking to include the California statute at issue in
this case. Therefore, I respectfully dissent.
While the differences in language among the State statutes makes precise
comparisons difficult, it appears that a majority of the States that had stalking
statutes in 1996 included as the key legal standard the victim’s reasonable
fear of bodily or physical injury or death to himself or herself or to a family
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member. However, there was no clear consensus among the States as to the
specific language and its scope. California and other State statutes referred
to a reasonable fear for one’s “safety” 1 or a reasonable fear for personal or
physical safety, 2 rather than a reasonable fear of bodily injury. Many other
States statutes employed a definition broader than fear of bodily injury or
fear for safety that would include fear of property damage 3 or acts that would
cause a reasonable person to suffer, inter alia, emotional or mental distress. 4
I agree with the majority that a generic definition of “stalking” must have
specific parameters, and I would not include all States that had stalking
statutes in 1996, given the significant disparity in how stalking was defined
by the various States at that time. However, the key point for our purposes
is that the generic definition that we provided in Matter of Sanchez-Lopez,
26 I&N Dec. 71 (BIA 2012), which was based on a fear of bodily injury or
death, is not substantially different from a fear for one’s safety, which some
of the States, including California, have incorporated in their definition of
stalking. In my view, a reasonable fear for one’s safety, which was included
in several State statutes at the time Congress added stalking as a removable
offense in 1996, should be part of the generic definition of stalking in section
237(a)(2)(E)(i) of the Act.
As a practical matter, the language in section 646.9 of the California Penal
Code regarding the victim’s “reasonable fear for his or her safety, or the
safety of his or her immediate family” is not significantly different from the
generic definition we adopted in Matter of Sanchez-Lopez. We could and
should amend that definition to include a reasonable fear for one’s safety or
that of a family member and thus find that section 646.9 is a categorical
match to the generic definition of stalking. 5
1
See, e.g., Cal. Penal Code § 646.9 (West 1996); Colo. Rev. Stat. § 18-9-111(4) (1996);
Kan. Stat. Ann. § 21-3438(a) (1996).
2
See, e.g., Conn. Gen. Stat. § 53a-181d (1996); N.H. Rev. Stat. Ann. § 633:3-a (1996);
Or. Rev. Stat. § 163.732(c) (1996).
3
See, e.g., Haw. Rev. Stat. § 711-1106.5(1)(b) (1996); S.C. Code Ann. § 16-3-1700(B)(6)
(1996); Tex. Penal Code Ann. § 42.071(a)(2) (West 1996); Wash. Rev. Code.
§ 9A.46.110(1)(b) (1996).
4
See, e.g., Ala. Code §13A-6-92(c) (1996); Fla. Stat. § 784.048(1)(a) (1996); Ind. Code
35-45-10-2 (1996); Mich. Comp. Laws § 750.411h(1) (1996); Mo. Rev. Stat. Ann.
§ 565.225.1(3)–.2 (1996); Mont. Code Ann. § 45-5-220(1) (1996); Ohio Rev. Code Ann.
§ 2903.211(A) (West 1996); Okla. Stat. Ann. tit. 21, § 1173(F)(1) (West 1996); 18 Pa. Stat.
and Cons. Stat. Ann. § 2709(b)(2) (West 1996); Utah Code Ann. § 76-5-106.5(2)(a)(ii)
(West 1996); Vt. Stat. Ann. tit. 13, § 1061(1)(B) (West 1996); Wyo. Stat. Ann.
§ 6-2-506(a)(ii) (1996).
5
The definition we adopted in Matter of Sanchez-Lopez closely tracked the 1993 Model
Anti-Stalking Code, and we did not conduct a comprehensive survey of the relevant
Federal and State stalking statutes.

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As the majority has correctly concluded, a survey of California cases does
not show a realistic probability that a person would be prosecuted for conduct
that would involve a reasonable fear for one’s safety, but not a reasonable
fear of bodily injury or death. See Moncrieffe v. Holder, 569 U.S. 184, 191,
206 (2013) (stating that to show a “realistic probability,” it must be
demonstrated that the State “actually prosecutes” conduct outside the generic
definition of the crime). I agree with the majority that we cannot resolve the
respondent’s case on this ground, given the Ninth Circuit’s reliance on
statutory language to establish that a statute is overly inclusive, rather than
on any actual cases. But the lack of a realistic probability of prosecution
strongly indicates that the reasonable fear for one’s safety is not substantially
different from a reasonable fear of bodily injury or death, and it supports a
determination that fear for one’s safety should be included in the generic
definition of stalking.
Since 1996, many States have revised the scope of their stalking statutes
to provide greater protection for stalking victims. Congress has broadened
the Federal statute in 18 U.S.C. § 2261A (Supp. II 1996), which was first
enacted on September 23, 1996, and was in effect until October 27, 2000, so
that it now also includes substantial emotional distress to the victim. See
18 U.S.C. § 2261A (Supp. IV 2017). Even under the generic definition that
I would adopt, many stalking statutes may not be covered as a result of our
obligation to follow the categorical approach, as most recently explained in
Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States,
136 S. Ct. 2243 (2016). The Federal stalking statute and the State stalking
statutes that extend beyond a fear of bodily injury or safety, such as those
that include an intent to cause emotional distress, will often be found to be
overbroad. And, if they are indivisible, they would not be a categorical match
to section 237(a)(2)(E)(i) of the Act, even if we were to adopt my proposed
generic definition, which includes a reasonable fear for one’s safety.
However, under the definition that the majority applies today, it appears that
a very small number of States will be covered going forward. And these are
States that have not amended their laws to include the type of stalking
conduct that 18 U.S.C. § 2261A protects victims against today. Cf. Torres
v. Lynch, 136 S. Ct. 1619, 1628 (2016) (stating that Congress did not intend
to limit the application of the aggravated felony provisions of the Act in
manner that would produce “‘haphazard’—indeed, upside down coverage”
(citation omitted)).
As we noted in Matter of Sanchez-Lopez, 26 I&N Dec. at 75 n.5, there is,
in fact, no claim that the respondent’s conduct did not involve placing
the victim in fear for her physical safety. Applying the categorical and
modified categorical approaches at that time, we would not have been
precluded from considering, to some degree, the factual basis for the
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respondent’s conviction. See, e.g., United States v. Aguila-Montes de Oca,
655 F.3d 915, 935 (9th Cir. 2011) (en banc), abrogated by Descamps, 570
U.S. 254, and Young v. Holder, 697 F.3d 976 (9th Cir. 2012).
The legal landscape has changed since we published our decision in
Matter of Sanchez-Lopez. This case illustrates the limitations of applying the
categorical approach imposed by the Supreme Court in Descamps and
Mathis to provisions of the immigration laws enacted by Congress for the
purpose of removing aliens convicted of serious criminal conduct. See
Matter of Chairez, 27 I&N Dec. 21, 25–26 (BIA 2017) (Malphrus,
concurring). Under this approach, only if section 646.9 is divisible can we
look to the respondent’s conviction records to determine if his conduct
involved an intent to cause the victim to fear death or bodily injury, as many
such stalking cases do. Because of this strict categorical approach, many
statutes that have since broadened the scope of protection for stalking victims
may not qualify as a categorical match to section 237(a)(2)(E)(i) of the Act.
As a result, in California and many other States, an alien who was criminally
convicted of stalking an innocent victim will not be removable under the Act,
even though the record makes clear that he or she committed “a crime of
stalking.” It is highly unlikely that Congress intended this result.

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Interim Decision #2341 '

MATTER OF LINDNER
In Deportation Proceedings
A-11038815
Decided by Board January 31; 1975
Respondent was convicted for the illegal possession of marijuana in a criminal proceeding
which was not conducted in connection with any provision of either a State or Federal
Youth Corrections Act. Thereafter, he was granted a full and unconditional pardon.
Under these circumstances, the pardon is not effective to remove respondent's deportability because aliens charged with being deportable under section 241(a)(II) of the Act

are excepted from the pardon provisions of section 241(b).
CHARGE:

Order: Act of 1952—Section 241(a)(11) (8 U.S.C. 1251(a)(11)]--Convicted of a crime
relating to narcotics, at any time after entry.
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

3, Ward Rafferty, Esquire

Irving A. Appleman

150 Broad Street
New Londcn, Conn. 06320

Appellate Trial Attorney

This is an appeal from an order of an immigration judge finding the
respondent deportable as charged, and, finding him statutorily ineligible for any form of discretionary relief from deportation, directing his
deportation to England. The appeal will be dismissed.
The respondent is a 26-year-old male alien, native and citizen of
Germany, who was admitted to the United States for permanent residence on February 20, 1957. At a hearing before an immigration judge
at which he was represented by other counsel, the respondent admitted
the truth of the factual allegations of the order to show cause but denied
deportabiliv. The immigration judge found him to be deportable and
ordered his deportation.

On appeal present counsel contends that the respondent is saved from
deportation because he has allegedly been granted a full pardon in the
State of Connecticut with respect to the crime which forms the basis for
these deportation proceedings, and has petitioned for the erasure of his
criminal records.; We reject this contention in reliance upon the plain
1 The record contains a certified copy of the record of respondent's conviction on April
29, 1971 in 'the Superior Court of Connecticut, New London County, for the offense of

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Interim Decision #2841
language of section 241(b) of the Immigration and Nationality Act,
which states that the provisions which remove deportability for an alien
who has been granted a full and unconditional pardon "shall not apply in
the case of any alien who is charged with being deportable from the
United States under subsection (a)(11) of this section."
We find the present case distinguishable from recent decisions which
hold that marijuana violators whose convictions have been expunged
under federal or .state "youth corrections" statutes are not deportable
under section 241(a)(11) of the Act, Mestre Morera v. INS, 462 F.2d
1020 (C.A. 1, 1972); Matter of Zingis, 14 I. & N. Dec. 621 (BIA
1974); Matter of Andrade, 14 I. & N. Dec. 651 (BIA 1974). There is no
evidence in the record, nor does counsel assert, that the respondent was
treated as a youthful offender in Connecticut. This factor, together with
the clear mandate of section 241(b), persuades us that the respondent is
not entitled to relief from deportation on the basis of his alleged pardon.
Nor can we accept counsel's premise that the erasure of respondent's
criminal record completely negates his conviction for consideration
under section 241(a)(11). We cannot impute to Congress an intention to
allow for such metaphysical distinctions when they enacted sections
241(a)(11) and 241(b). ,See generally Matter of A — F— , 8 I. & N. Dec.
429 (A.G. 1959).
Accordingly, while we are aware of the sympathetic factors in this
case, we find that we have no alternative but to affirm the decision of the
immigration judge and dismiss the appeal. The following order will
therefore be entered.
ORDER: The appeal is dismissed.

illegal possession of marijuana, in violation of the Connecticut General Statutes, sec-

tions 19-452 and 19-481(b). We note the absence from the record of a copy of the alleged
the pardon petition and two newspaper articles which indicate
;me had been granted; halie been submitted.
offietal'pardon Ord Pr; thily

171


Interim Decision '4:k1840

Mama or LEVEQUE
In Deportation Proceedings
A-18823892
Decided by Board February 29, 1968
Notwithstanding respondent's statutory eligibility for adjustment of status under
section 240, Immigration and Nationality Act, as amended, when she first

applied for such relief in May 1985, the Service is not now estopped from
urging ineligibility because of inability to meet the labor certification requirements of section 212(a) (14) of the Act as imposed by the Act of October 8,
1900, where the hearing was adjourned for necessary character investigation
and processing of the application was not completed until after the effective

date of the amendatory act at which time she was subject to and unable to
meet the labor certification requirement, and where there was no lack of due
diligence by the Service in the adjudication or the application.
CHARGE •
Order: Act of 1052—Section 241(a) (2) (8 U.S.C. 1251 (a) (2)7—Nonimmigrant
visitor—remained longer.
ON BEHALF ow SERUM
Irving A. Appleman
Appellate Trial Attorney

ON Baftem. or RESVoNDZSIT:

Albert L Geduld*, Esquire
8CWilliam Street
New York, New York 10038

Respondent appeals from a decision of the special inquiry officer,
finding her statutorily ineligible for adjustment of status under section 245, and granting voluntary departure with an alternate order
of deportation to Brazil and a designation of France if Brazil should
refuse to accept her.
Respondent is a 41-year-old divorced female alien, native and citizen of France, who was last admitted to the United States in 1962 as
a visitor for pleasure; her stay, with extensions, expired on October
27, 1963, and she remained beyond that date without authority.
Respondent conceded deportability on the charge in the order to
show cause at the first hearing and requested an adjournment to permit
her to prepare and submit an application for adjustment of status. The
application was submitted at the adjourned hearing on May 13, 1965,
but because documentation was incomplete there was a further adjournment to June 16, 1965.
633

Interim Decision #1840
At the June hearing, respondent was questioned by the trial attorney
on matters for the most part relevant to her eligibility for adjustment,
with special emphasis on the facts surrounding her divorce, granted in
France in 1962. The document evidencing it was not a court record but
a certificate by the Mayor of the community where she and her husband
had lived, and it stated that the divorce had been procured by the husband "for the exclusive .fault of the wife." Respondent denied that
there had been any fault on her part, and denied any knowledge of
what fault had been alleged, claiming that she had never been served
with a complaint, had never appeared in the action, and did not even
know it had taken place until some time after it was completed. It was
agreed that counsel should attempt to obtain and submit a copy of the
cnnit►leint in the divorce action.
At the same hearing, it was elicited by the trial attorney that
respondent had recently undergone a hysterectomy (Tr. p. 17) ; the
trial attorney wished to ascertain the cause for the surgery and requested that a copy of the hospital record be submitted. Counsel
objected, and the special inquiry officer made no definite ruling on the
request. The hearing was adjourned to July 28, 1965 to permit, the trial
attorney to complete his questioning of respondent, on her eligibility
for adjustment.
The hearing was not resumed until

November 17, 1965. At that time,
counsel stated that in spite of considerable effort he had been unable
to obtain a copy of the complaint in the divorce action. There was then
extensive questioning of respondent, during which , she repeatedly
denied having had relations with other men during her marriage,
denied that she had ever engaged in prostitution, and denied having
had sexual relations with men after her divorce. At the close of the
questioning, the special inquiry officer declared the hearing completed,
with the understanding that counsel would submit a medical certificate
concerning the surgery, which would become Exhibit 8; that

respondent would appear for examination by the United States Public
Health Service when notified to do so and the report thereof would be
entered into evidence as Exhibit 9; and that the Government would
conduct a further investigation of respondent which was to be entered
into evidence as Exhibit 10 without a reopened hearing, provided it
showed nothing adverse to respondent; if there was adverse material,
the hearing would be reopened on notice. Counsel consented that if the
special inquiry officer's decision authorized adjustment, no copy of
it need be served upon him, and he would waive the right to appeal.
A year and a. half later, on June 21, 1967, the hearing was reopened
by action of the special inquiry officer, for compliance with the provisions of section 219(a) (14) of the Immigration. and Nationality

634

Interim Decision #1840
Act, as amended by the Act of October 3, 1965. During the course of
this hearing, the hospital record was introduced (showing that the
operation was performed to remove a malignancy), as was a copy of
the court clerk's minutes in the divorce action (obtained by the trial
attorney), showing that respondent had never been served with the
complaint, her whereabouts allegedly being unknown, and that adultery was in no way involved. Counsel requested an adjournment in
order to attempt to obtain a labor certification or to establish that
respondent was exempt from the requirement for it, and the hearing
was adjourned to September 26, 1967. At this final hearing, counsel
advised that respondent did not have- a labor certification and would
not be able to obtain one. The special inquiry officer then rendered the
oral decision being appealed from. '
Counsel urges that the Government should be estopped from deny-

ing adjustment to respondent, in spite of the absence of a labor certification, on two: grounds: first, that its lack of due diligence in
conducting its investigation, and overzealousness in looking for nonexistent bad conduct, prevented the case from being processed to completion before the effective date *of the Act of October 3,19.65; and,
second,
• • • there was an obligation at the time the hearing was held on November

13 (sic), 1965, and the special inquiry officer was obliged to suggest that a Labor
Department certification would be necessary after December 1, 1965. Nothing
was mentioned about that. If be had mentioned it, I perhaps would have insisted
that this ease be granted or that a decision be made, because the lady in question is a manicurist, and she will never be able to obtain a Label. Deprtment
certification • • *.

Estoppel against an agency of the United States Government is
not to be lightly undertaken (cf. Matter of Mama, Int. Dec. #1770,
and cases cited in kiotnote 1 thereof). In any estoppel claim, there
must be something more than a mere showing that the party seeking
it has been damaged by a particular course of action or by a failure
to act within a certaintime period. The action or inaction complained
of must be inconsistent with the position initially taken by the party
sought to be estopped, or must be shown to be a breach of some duty
owing by that party, it must be shown that that party, by such action
or failure to set or silence, led the other party, in reliance thereon,

to act or fail to act in such a way as to cause loss or injury that would
not otherwise have occurred.
Turning to the second claimed estoppel ground, that the special
inquiry officer at the November 17th hearing was under an obligationto advise counsel that the labor certification requirement would go
into effect on December 1, 1965, we cannot agree that this can form
a basis for estoppel. The Act of October 3, 1965 was a public law,

635
821-654--69-12

Interim Decision #1840
signed by the President of the United States at the foot of the Statue
of Liberty. Its text was readily available. The regulations to implement the new law were first published in the Federal Register of
November 4, 1965 (Vol. 30, No. 214, p. 13962) in the form of a Notice
of Proposed Rule Making, and were as available to counsel as they
were to the special inquiry officer. The information counsel claims was
improperly not imparted to him was not something which counsel
could obtain only from the special inquiry officer or the trial attorney.
While it might perhaps have been helpful if the special inquiry officer
had reminded counsel of the changes about to go into effect, he was
under no duty to do so, and, in legal contemplation, respondent was
not damaged by this omission.
On the first mentioned ground, it does appear that a great deal of
investigation was proposed, which resulted in finding none of the
material apparently anticipated by the Government. Also, the file
does not contain the investigative report which was stipulated to become Exhibit 10. However, we cannot, on the record before us, say
that it was improper for the Service to attempt to learn definitely, for
example, the real basis for the divorce, which respondent's own document had indicated to have been granted "for the exclusive fault of
the wife". Respondent was applying for discretionary relief, and clarification of any point that would logically have a bearing on her good
moral character was proper and justified. Nor has it been shown that
the Service did not exercise due diligence in its processing of this
case. It is not uncommon for special inquiry officers where. an applica:
tion for adjustment has been made in deportation proceedings to wait
until all of the facts on statutory eligibility and worthiness for discretionary relief have been developed, before sending the case to the
appropriate section for the processing normally incident to an application for adjustment. In this case, the spacial inquiry officer did not
consider the hearings completed until November 17th, 1965, thirteen
days before the effective date of the new Act. It is doubtful that the
case could have been processed by December 1, 1965 with even the
most diligent effort by the Service, in view of the numerous reports,
agency checks, medical examination, etc. that would have to be
obtained before final approval could be given.
Respondent, who was eligible for the relief sought when she first
applied for it, became ineligible by virtue of the change in the law,
and her inability to obtain a labor certification. It is well settled that

where an application for discretionary relief has been made, and there
is a change in the law after the application is filed, but before it has
been granted, the new law is controlling, even if it results in a loss of
eligibility by the applicant; see

Patais v. immigration and NaturaZiea036

Interim Decision #1840

Von Service, 337 F. 2d 733 (8th Cir., 1964), cert. den. 360 U.S. 952
(1965), reh. den. 381 U.S. 921 (1965) ; Foti v. Immigration and
Naturalization Service, 332 F. 2d 424 (2d. Cir., 1961) ; Foglie v.
Esperdy, 301 F.2d. 429 (2d Cir., 1962).
On the record before us, we cannot hold that the failure to process
and adjudicate respondent's application for adjustment before December 1, 1965 is attributable to any improper act or lack of due
diligence on the part of the Service, or that it has been established
that a sufficient basis to invoke estoppel exists.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

637


MATTER OF T—

In DEPORTATION Proceedings
A-11465252

Decided by Board May 8, 1962
L eportability—Section 241(a)(4)—Single scheme—Fair hearing—Admissibility
of preliminary statement—Limitation of cross-examination.
(1) Where respondent stood mute, Government has met its burden of establishing by competent evidence mat the two crimes committed did not arise
out of a single scheme of criminal misconduct by introduction of respondent's preliminary statement and court records of his convictions.
(2) Respondent's preliminary statement under oath, which was voluntarily
made, is properly admissible in evidence.
(3) Curtailment of counsel's cross-examination of Government witness when
it became apparent that the line of questioning was directed to the witness'
motives and other circumstances concerned with respondent's arrest did not
render nearing Unralr, Inasmuch as substantial and probsti e evidence of
deportability had already been introduced into the record.
(4) Alleged atmosphere of tension created by respondent's refusal to testify
or be sworn did not result in unfair hearing.
-

CuAaos:
Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—After entry
convicted of two crimes involving moral turpitude not arising out
of a single sehemp of criminal misconduct, to wit: attempted petit
larceny and attempted petit larceny.
BEFORE THE BOARD

DISCUSSION: The respondent appeals from an order entered by
the special inquiry officer on December 26, 1961, directing his deportation as an alien convicted of two crimes involving moral turpitude
and not arising out of a single scheme of oriminal misconduct, to
wit, attempted petit larceny and attempted petit larceny (8 U.S.C.
1251(a) (4) ). A memorandum of law in support of the appeal urges
procedural and substantive error_

The respondent concedes that he is the person named in the order
to show cause. He stood mute on advice of counsel when questioned
concerning alienage and deportability. Documentary evidence introduced during the course of the hearing establishes that the respondent is a native and citizen of Germany, male, unmarried, 25 years
646

of age, who last entered the United States as an immigrant through
the port of New York on September 3, 1958. Exhibits 3, 4, 5 and 7

are certified records of the respondent's conviction on two occasions
in the Court of Special Sessions of New York City for attempted
larceny. The offenses were committed on May 1, 1961, and July 23,
1961, and involved the attempted larceny of property belonging to
one F—.
Counsel maintains that the finding of deportability is not supported by credible, substantial and probative evidence in that the
documents involved and respondent's preliminary statement were
improperly admitted over counsel's objections. Exhibit 6 is a sworn
statement taken from the respondent on November 14, 1961. The respondent agreed to make the statement voluntarily under oath (p. 1
of Exh. 6). 8 CFR 242.14(c) provides, in substance, that a special
inquiry officer may receive in evidence any oral or written statement previously made by the alien and relevant to the issue before
him. We find no error on the part of the special inquiry officer in
admitting in evidence the recorded statement and other documents
material to the issue of deportability. Cf., United States ex rel.
Impasta.to v. O'Rourke, 211 F.2d 609 (C.A. 8, 1954), cert. den. 348
U.S. 827 (1954).
Counsel urges prejudicial error in that the special inquiry officer

arbitrarily curtailed cross-examination of the Government's witness
which sought to develop the illegality of the respondent's arrest
without a warrant. We have carefully reviewed that portion of
the record concerned with the respondent's arrest without a warrant. Counsel was allowed wide latitude in cross-examining the
immigration officer on the subject of whether any evidence was obtained by unlawful search and seizure. Counsel's cross-examination
was curtailed only when it became apparent that his line of questioning was directed to developing whether there was credible testimony on the part of the Government's witness with regard to the
alien's arrest without a warrant. Inasmuch as substantial and probative evidence of deportability had already been introduced into
the record, no error was committed when the special inquiry officer
limited counsel's repeated attempts to cross-examine the Government's witness on his motives and other circumstances concerned
with the respondent's arrest (8 CFR 242.8, and see Kielema v. Crossman, 103 F.2d 292 (C.A. 'fax., 1939)).

Counsel's brief charges tlhat the reaction of the special inquiry
officer to respondent's refusal to testify or be sworn created an
atmosphere of tension and autugunisni which as a matter of due proc-

and policy require a reversal of the order of deportation. A
deportation proceeding is civil rather than criminal and the fact
ess

that an alien claims privilege against self-incrimination does not
647

grant him privilege with respect to his identity and the burden of
showing the time, place and manner of his entry into the United
States (8 U.S.C. 1361; cf., Vlieidi8 v. Hollaaa, 150 F. Supp. 678,
aff'd 245 F.2d 812 (C.A. 3, 1957)).
We note that counsel made no attempt during the course of the
hearing to have the special inquiry officer disqualify himself. Under
the circumstances, it is not proper for him to raise this issue on
appeal. The fact that the record created amounts to 112 pages, notwithstanding the fact that the respondent stood mute, is not persuasive of a finding that the respondent was denied due process of law
by reason of the special inquiry officer's antagonism or hostility.
Counsel urges error in the finding that the two crimes committed
by the respondent did not arise out of a single scheme of criminal
misconduct. He argues that under precedent court decisions 1 the
burden is upon the Government to establish that the offenses did not
arise out of a single scheme of criminal misconduct and that the
Government has made no attempt to meet this burden. Counsel cites
the case of Woad v. Hay (supra 1 ) as authority for his argument.
We agree with counsel that the burden is upon the Government to
establish by competent evidence that the two crimes did not arise
out of a single scheme of criminal misconduct. Inasmuch as the respondent stood mute, this burden was met by the best evidence
available, namely, respondent's preliminary statement and the court
records of his conviction.
The case before us is distinguishable from the Woad case, cited by
counsel (supra 1 ). The only evidence on the subject of single scheme
in the Wood case was the alien's testimony that there was an agreement to participate in two robberies which were subsequently
committed. The Government made no attempt to impeach the alien's
testimony.
Here the alien has stood mute. Apparently the court recognized
that such a situation could arise because it said:
It may he that in some cases the proof of the commission of two crimes
may be the very nature of the crimes themselves, or the time or circumstances
of their commission, be reasonable, substantial and probative evidence that
they did not arise out of a single scheme of criminal misconduct , (Wood v.
Hop, supra, at page 831)

The respondent's testimony at pages 4 and 5 of his statement
(Exh. 6) is affirmative evidence that two separate and distinct, crimes
were committed by the respondent and that the crimes were not the
end result of a preconceived plan. The special inquiry officer has
fully evaluated this evidence and finds that deportability is established. We find no error on the part of the special inquiry officer
1 Wood v. Huy, 200 F.2d 825 (CA. 0, 1959) ; Khoury v. Hoy
(unreported
S.D. Cal., 1959) ; Zito v. Moutal, 174 F. Supp. 531 (D.C. 111., 1959) ; Jeronirti
v. Muff, 157 F. Supp. 808 (S.D. N.Y., 1957).

648

We find no basis for reversing the special inquiry officer's order
and remanding the case for a hearing de novo. The respondent was
represented by counsel of his own choosing. He was given a full
opportunity to testify in his own behalf. He declined this opportunity and made no effort to rebut the evidence introduced by the
Government. The opportunity thus afforded him and the proof
offered by the Government comply in all respects with the statutory
requirements set forth in 8 U.S.C. 1252(b). The respondent's failure
to present evidence in his own behalf and to rebut that proffered by
the Government does not render the hearing unfair or deprive him of
due process in any respect. The conclusion of the special inquiry
officer is supported by reasonable, substantial and probative evidence.
The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.

698


Interim Decision #2544

MATTER OF V1VA.S
In Deportation Proceedings
A-34580254
Decided by Board December 17, 1.977
(1) While the Service has the burden of proof to establish deportability by clear, convincing and unequivocal evidence, a respondent in deportation proceedings may be required
to go forward with the evidence when the Service has made a prima facie case and
respondent has better control or knowledge of the evidence (in this instance, the proper
identity of his alleged United States citizen wife).
(2) Respondent's deportability as an alien excludable at entry under section 212(a)(14) of
the Immigration and Nationality Act for lack of a valid labor certification is established
by clear, convincing end unequivocal evidence where the record shows that he was
permanently employed in the United States at the time he applied for a visa, and where
the Service established that respondent was not married to the person whose birth
certificate was used to establish exemption from the labor certification requirement and
respondent did not go forward with evidence to establish the true identity of the person

to whom he claimed to have been married at the time he entered the United States.
(3) Where consul's knowledge of the true facts would have required a finding that the
applicant was ineligible to receive a visa, concealment of those facts from the consul
results in procurement of a visa which is not valid, and the alien is excludable under
section 212(a)(20) of the Act. Neither fraud nor wilfulness is an element in this determination, and neither is necessary to establish a charge under section 212(a)(20) of the Act.
CHARGE:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1))—Excludable at entry—no
valid labor certification
Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)}—Excludable at entry—no
valid immigration visa
ON BEHALF OF RESPONDENT: Michael B. Cohen, Esquire
221 N. LaSalle Street
Chicago, Illinois 60601

BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

The respondent appeals from an immigration judge's decision dated
-August 9, 1976. In this decision the respondent was found deportable
under section 241(a)(1) of the Immigration and Nationality Act as
excludable at entry under section 212(a)(14) and section 212(a)(20) of the
68

Interim Decision #2544

Act and was granted the privilege of voluntary departure. The appeal
will be dismissed.
The respondent is a 24-year-old native and citizen of Mexico. He
entered the United States as an immigrant on Augast 31, 1974. At issue
is whether the respondent's deportability has been established by clear,
convincing and unequivocal evidence.
The record reveals that the respondent obtained his immigrant visa
and his exemption from the labor certification on account of his marriage
to a United States citizen. The Service must prove by the required
degree of evidence that the respondent was not exempt at the time of
entry from the labor certification and that the visa he presented to gain
admission as a lawful permanent resident was invalid.
To prove its case, the Service presented as a witness a person claiming to be the individual referred to in the birth certificate used to
establish the United States citizenship of the respondent's wife. The
immigration judge concluded, on the basis of her testimony at the
hearing and the other evidence in the record, that the birth certificate
used to establish the citizenship of the respondent's wife belonged to the
witness. The immigration judge's finding of fact carries great weight
and will not ordinarily be set aside. Matter of T , 7 I. & N. Dec. 417
(BI A 1957).
—

The witness testified that she has never gone through a marriage

ceremony with the respondent, that she had never met him previously
and that she is married to someone else presently. The respondent
testified that he had not married the witness and that he had never seen
her before. However, the respondent claimed that he married someone
who was using the same name as the witness. The respondent presented
no evidence to clarify his wife's indentity or to prove that she is a United
States citizen.
Since we have decided that the witness is the United States citizen
referred to in the birth certificate, the question is, more concretely,
whether the respondent's deportability as one who was excludable at

entry under section 212(a)(14) of the Act is established by clear, convincing and unequivocal evidence when the Service establishes that the
respondent is not married to the person whose birth. certificate was used
to establish the exemption from the labor certification and the respondent has not gone forward with evidence to establish the real identity of
the person to whom he claims to have been married at the time he
entered the United States. We hold in the affirmative for this proposition.
It is not a novel principle in immigration law that, notwithstanding
the requirement of clear, convincing and unequivocal evidence to establish deportability, a respondent may properly be required to go forward
with evidence to rebut prima facie showings by the Service. See Matter
69

Interim Decision #2544
of Tijerina-Villarreal, 13 I. & N. Dec. 327 (BIA 1969); Matter of
Conliffe, 13 I. & N. Dec. 95 (BIA 1968); Meter of Vosganian, 12 I. & N.
Dec. 1 (BIA 1966). In the case at hand, the rule is justified.
In this situation, manifestly, the Service is under a serious practical
handicap if it must prove the negative proposition: that the respondent
did not marry a United States citizen when he married on June 9, 1973.
The possibilities are of such magnitude as to defy inclusive rebuttal. On
the other hand, the burden of affirmatively identifying the person whom
he married is not an oppressive one fur the respondent to undertake; the
relevant facts to do that are peculiarly within his knowledge. He is only
being called to identify properly the person; the Service still retains the
obligation to prove by clear, convincing and unequivocal evidence that
the respondent is deportable on the charges brought against him.
The rule that we are enunciating for this. situation is not new to either
criminal or civil proceedings. The burden of going forward with evidence can be placed on a party not bearing the burden of proof when the
facts are within his particular knowledge or control. See United States
v. Fleischman, 339 U.S. 349 (1950); Commercial Molasses Corp. v.
New Yurk Tank Barge Corp., 314 U.S. 104 (1941); Williams v. Administrator of Nat. Aero. & Space Adm&n., 463 F.2d 1391 (C.C.P.A.
1972); United States v. Hayes , 369 F.2d 671 (9 Cir. 1966). The burden of
going forward with evidence also arises under certain circumstances
when a prima facie case is made by the opponent. See Government of
Virgin Islands v. Lake, 362 F.2d 770 (3 Cir. 1966); Rhay v. Browder,
342 F.2d 345 (9 Cir. 1965). And, more in line with the factual situation at
hand, the burden of going forward with the evidence is placed on a party
not having the burden of proof when he has better control or knowledge
of the evidence and his adversary makes a prima facie showing of his
ease. See Campbell v. Unitod States, 365 U.S. 85 (1961); Rossi v.
United States, 289 U.S. 89 (1933).
The Service has shown that the respondent has not married the
person whose birth certificate was used to establish his exemption from
the labor certification as the spouse of a United States citizen. The
respondent has not gone forward with evidence to establish the identity
of the person he married.
Counsel for the respondent argues on appeal that the respondent is
not deportable as excludable at entry under section 212(a)(14) because
the record is silent as to the purpose e the respondent's entry. We
reject counsel's contention.
The record shows that the respondent was employed in Chicago prior
to his trek to Mexico to obtain his visa. The respondent when asked his
occupation on the visa application said "labores." The respondent was
employed at the time of the hearing. There is an affidavit in the record
from the purported wife of the respondent, dated June 24, 1974, stating
70

Interim Decision #2544
that he was permanently employed by the Crane Company in Chicago.
That evidence is sufficient to establish that his purpose to enter the
United States was to perform skilled or unskilled labor. See Matter of
Lee, Interim Decision 2424 (BIA 1975); Matter of Becerra, 13 I. & N.
Dec. 19 (BIA 1968). The respondent's deportability as one who was
excludable at entry under section 212(a)(14) has been established
clearly, convincingly, and unequivocally.
It is established that the birth certificate accompanying the documentation presented to the consul to prove the eligibility of the respondent
for his immigrant visa did not refer to the respondent's wife. If that fact
had been known to the consul at the time he issued the visa, he would
not have issued it since there was no evidence before him that would
establish the respondent's eligibility to receive the visa.
Where the true facts would have required a consul to rule that an
applicant for a visa had not borne the burden of establishing eligibility,
we must hold that concealment of those facts resulted in the procurement of a visa which was not valid. Matter of F M , 7 I. & N. Dec.
420 (BIA 1957). The fact that the applicant might have obtained a visa at
a later date, establishing his full eligibility With evidence other than the
one submitted at the time, does not mean that the visa obtained on
August 14, 1974 is a valid visa. See Ablett v. Brownell, 240 F.2d 625
(T)
eir_ 1957). Cf. United States ex rel. Fink v. Reimer, 96 F.2d 217
(2 Cir. 1938). The respondent's inadmissibility under section 212(a)(20)
of the Act at the time of entry has been established.
Counsel for the respondent seems to argue on appeal that the respondent cannot be found deportable as excludable at entry under section
212(a)(20) because there is no evidence of fraud on the part of the
respondent concerning the obtainment of his visa. We agree with counsel for the respondent that there is no evidence of fraud on the part of
the respondent. However, that does not affect deportability since fraud
or willfulness is unnecessary for a charge under section 212(a)(20) of the
Act. Matter of F M , supra. The appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondent is permitted to depart from the United States voluntarily
within 31 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.
—

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71

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