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Matter of R. HUANG, Beneficiary of a visa petition
filed by Mei Huang, Petitioner
Decided July 8, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The beneficiary of a visa petition who was adopted pursuant to a State court order that
was entered when the beneficiary was more than 16 years old, but with an effective date
prior to his or her 16th birthday, may qualify as an adopted child under section
101(b)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E)(i)
(2012), so long as the adoption petition was filed before the beneficiary’s 16th birthday
and the State in which the adoption was entered expressly permits an adoption decree to
be dated retroactively. Matter of Cariaga, 15 I&N Dec. 716 (BIA 1976), and Matter of
Drigo, 18 I&N Dec. 223 (BIA 1982), modified.
FOR PETITIONER: Wayne J. Chi, Esquire, San Francisco, California
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Associate Counsel

Michael J. Sheridan,

BEFORE: Board Panel: MALPHRUS and MULLANE, Board Members. Concurring
Opinion: CREPPY, Board Member.
MALPHRUS, Board Member:

In a decision dated August 17, 2009, the District Director revoked the
approval of the petitioner’s visa petition, which she had filed on behalf of
the beneficiary as her adopted child pursuant to section 101(b)(1)(E)(i) of
the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E)(i) (2006).
The petitioner has appealed from that decision. The appeal will be
sustained in part and the record will be remanded.

I. FACTUAL AND PROCEDURAL HISTORY
The beneficiary, who was born in China on March 22, 1988, entered the
United States as a nonimmigrant visitor on February 22, 2002, when she
was nearly 14 years old. The petitioner, who is the beneficiary’s paternal
aunt, filed a petition to adopt the beneficiary in Hawaii on February 2,
2004, 2 months before the beneficiary’s 16th birthday. A State court judge
issued an adoption decree on May 3, 2004, after the beneficiary’s

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16th birthday, but the effective date of the decree was made retroactive to
February 2, 2004, the day the petition was filed.
In May 2006, the petitioner, who was naturalized in 2004, filed a visa
petition to accord the beneficiary immediate relative status as her adopted
child. The petition was initially approved, but the District Director later
revoked it, finding that the adoption was not valid for immigration purposes
because it had not occurred before the beneficiary reached the age of 16.

II. ISSUE
The question before us is whether a beneficiary whose adoption decree
was issued after she was 16 years old, but with a retroactive effective date
prior to her 16th birthday, can qualify as a “child” who was “adopted while
under the age of sixteen,” as required by section 101(b)(1)(E)(i) of the Act.

III. ANALYSIS
For a beneficiary to qualify as an adopted child, the petitioner must
establish that the beneficiary qualifies as a “child,” that is, he or she must
be an unmarried person under 21 years of age, who was “adopted while
under the age of sixteen years” and has been in the legal custody of, and
resided with, the adopting parent for at least 2 years.
Section
101(b)(1)(E)(i) of the Act. The regulations also require that “the adoption
took place before the beneficiary’s sixteenth birthday.”
8 C.F.R.
§ 204.2(d)(2)(vii) (2015); see also 8 C.F.R. § 204.2(d)(2)(vii)(C) (providing
that “the child must have been under 16 years of age when the adoption is
finalized”).
The phrase “adopted while under the age of sixteen years” is not defined
in the Act or regulations. Based on “the language itself, the specific
context in which that language is used, and the broader context of the
statute as a whole,” we conclude that the statutory language is ambiguous
as to whether a retroactive adoption decree is valid for immigration
purposes. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); see also
Matter of C-T-L-, 25 I&N Dec. 341, 344−45 (BIA 2010).
A. Retroactive Orders of Adoption
In Matter of Cariaga, 15 I&N Dec. 716 (BIA 1976), we held that an
adoption was not valid for immigration purposes where the adoption
process was initiated after the beneficiary was 18 years old and the decree
was made retroactive to a date 12 years earlier. We concluded that the age
restriction in section 101(b)(1)(E) of the Act should be given a literal
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interpretation and that, despite the retroactive effect given to the adoption
by the State court, “an adoptive relationship was not created.” Id. at 717.
Relying on Cariaga, we subsequently concluded in Matter of Drigo,
18 I&N Dec. 223 (BIA 1982), that for immigration purposes, we do not
recognize an adoption decree as being effective as of the date it was entered
nunc pro tunc. 1 We noted in that case that it was “Congress’ intent that the
age restriction in section 101(b)(1)(E) be construed strictly.” Id. at 224.
Our decisions in Cariaga and Drigo discussed the two major policy
interests that Congress addressed in enacting the laws relating to adoptions:
fostering family unification and preventing ad hoc or fraudulent adoptions.
We explained that “Congress was concerned with the problem of keeping
the families of immigrants united” and therefore “provided liberal treatment
of children.” Matter of Cariaga, 15 I&N Dec. at 717; see also Matter of
Yuen, 14 I&N Dec. 71, 72 (BIA 1972) (noting that the adoption provision
“was designed to prevent hardship and to keep families together”).
However, we also noted that when Congress passed the 1952 Act, it
chose not to extend immigration benefits to adopted children “for fear that
fraudulent adoptions would provide a means of evading the quota
restrictions.” Matter of Cariaga, 15 I&N Dec. at 717. In 1957, Congress
added a provision to include adopted children within the definition of
a “child,” but it imposed an age restriction in an attempt to “distinguish
between bona fide adoptions, in which a child has been made a part of
a family unit, and spurious adoptions, effected in order to circumvent
statutory restrictions.” Id.; see also Matter of M-, 8 I&N Dec. 118,
119 (BIA 1958; A.G. 1959) (noting that “safeguards were written into law
designed to prevent abuses, such as adoptions entered into for the purpose
of evading the immigration laws”).
Not only are such spurious adoptions in violation of the statutory
restrictions, they do not advance the interests of family unification. Where
there is no indication that the biological parents are unable to continue their
parental responsibilities, an adoption can actually undermine family unity
by legally severing the biological family unit for improper purposes.
Congress has expressed concern about efforts to avoid the statutory
quota restrictions, whether through fraudulent adoptions that have no
factual basis for the underlying relationship or those that, despite having the
1

Nunc pro tunc, which literally means “now for then,” refers to a court’s power to give
an order “retroactive legal effect.” Black’s Law Dictionary 1174 (9th ed. 2009); see also
Singh v. Mukasey, 533 F.3d 1103, 1110 (9th Cir. 2008) (stating that nunc pro tunc “does
not imply the ability to alter the substance of that which actually transpired or to backdate
events to serve some other purpose”) (quoting United States v. Sumner, 226 F.3d 1005,
1010 (9th Cir. 2000)).

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appearance of validity, are actually motivated by a desire to circumvent the
immigration laws. It is these latter adoptions, which are the most difficult
to identify, that Congress primarily targeted through the statutory
restrictions for adopted children. See Matter of Repuyan, 19 I&N Dec. 119,
122 (BIA 1984) (stating that Congress intended to “prevent abuse through
ad hoc adoptions made only for the purpose of circumventing the
immigration laws”).
It was within the purview of Congress to establish an age limitation to
discourage adoptions that are entered into for the purpose of obtaining
immigration benefits. This is so even if its line drawing has the effect of
excluding some adoptions that are bona fide; a statutory scheme of this
nature will inevitably exclude some valid relationships and include some
that are not valid. See Romero-Ochoa v. Holder, 712 F.3d 1328, 1331 (9th
Cir. 2013) (holding that Congress could rationally draw conclusive lines in
drafting immigration laws, “even though [they] may prove over- or underinclusive in individual cases”).
As the concurring opinion notes, the process by which the Department
of Homeland Security (“DHS”) evaluates a visa petition for an adopted
beneficiary involves more than determining if the age limits have been met
and the State court has approved the adoption. See Matter of Marquez,
20 I&N Dec. 160, 163−65 (BIA 1990). However, the DHS explained that
in assessing whether an adoption is bona fide, it can be very difficult to
determine if the adoption is actually motivated by a desire to provide
immigration benefits rather than to create a familial relationship, even when
the adoption is finalized before the beneficiary is 16. In fact, it can be more
difficult to detect fraud in an adoptive relationship than in a marital one.
Thus, the age restriction provides an important deterrent to fraud and abuse
of the system.
Under the rule we established in Cariaga and Drigo, retroactive and
nunc pro tunc orders of adoption were always invalid for immigration
purposes. The DHS urges us to reaffirm those decisions, arguing that the
regulations require that a child must be under the age of 16 years when the
adoption is approved in order to be eligible for immigration benefits.
However, the regulations do not specifically address nunc pro tunc orders
and, in our view, do not prohibit a more measured approach. In interpreting
section 101(b)(1)(E)(i) of the Act, it is appropriate for us to balance
Congress’ interest in fostering family unification against its clear intent to
prevent abuse in the immigration process. See Matter of Marquez, 20 I&N
Dec. at 164 (stating that “adoptions must be evaluated in light of the
congressional intent to recognize only bona fide adoptive relationships”).
The beneficiary was granted a retroactive order of adoption in Hawaii.
Under section 578-8(a) of the Hawaii Revised Statutes, a decree of
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adoption “shall take effect upon such date as may be fixed therein by the
court, such date to be not earlier than the date of the filing of the petition
and not later than six months after the date of the entry of the decree.”
Thus, Hawaii expressly permits a court to establish an effective date for an
adoption that is prior to the date the decree is entered, so long as it is not
before the date the petition was filed.
The statutory authority to enter an adoption order that is effective as
early as the date the petition was filed is not an open-ended exercise of
judicial authority based on general equitable principles. It is expressly
authorized by the Hawaii statute and is objectively verifiable. Although the
statute gives the State courts discretion to enter an effective date different
from the date the decree is entered, the law prohibits the court from making
the adoption effective before the date the petition was filed. This is
significant because it helps to deter abuse of the immigration laws. See
Sook Young Hong v. Napolitano, 772 F. Supp. 2d 1270, 1280 (D. Haw.
2011) (recognizing an adoption for immigration purposes under Hawaii law
and noting that the statute would not allow a person older than 16 at the
time of filing to obtain a retroactive adoption that would qualify under the
Act).
Having considered the arguments of the parties and the limited nature of
the Hawaii statute, we conclude that the blanket rule we have applied for
many years is too limiting in that it does not allow us to adequately
consider the interests of family unity. Thus, we will revisit the position we
took in Cariaga and Drigo. 2 Accordingly, we will no longer deny a visa
petition where the adoption petition was filed before the beneficiary’s 16th
birthday, the State in which the adoption was entered expressly permits an
adoption decree to be dated retroactively, and the State court entered such a
decree consistent with that authority. Therefore, we withdraw from our
prior decisions to the extent that they prohibit recognition of such an
adoption decree based solely on the rule that a petition must always be
approved before the beneficiary turns 16.
Nevertheless, contrary to the concurring opinion, we conclude that, at
a minimum, the regulations and statutory context indicate that the adoption
process must have been initiated before the child reaches the age of 16. An
2

The United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this
cases arises, rejected our interpretation of the age restriction in section 101(b)(1)(E)(i) of
the Act as unreasonable. Amponsah v. Holder, 709 F.3d 1318 (9th Cir. 2013). The court
has withdrawn that opinion, stating that “the Board is considering whether to overrule or
modify Matter of Cariaga.” Amponsah v. Holder, 736 F.3d 1172, 1172 (9th Cir. 2013).
We are unaware of any other circuit court authority that has rejected our approach to the
age restriction. See Mathews v. USCIS, 458 F. App’x 831, 833 (11th Cir. 2012) (finding
our interpretation of the adoption age restriction to be reasonable).

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adoption order is not merely a ministerial act that simply recognizes or
formalizes a prior relationship. It is a judicial order that actually creates the
adoptive relationship. See Black’s Law Dictionary 55 (9th ed. 2009)
(stating that adoption “creates a parent-child relationship between the
adopted child and the adoptive parents with all the rights, privileges, and
responsibilities that attach to that relationship”). So while it may be
reasonable to recognize an adoption decree that is retroactive to the date the
process was initiated, it would not be appropriate to extend Congress’
mandated age limitations where the effective date of the decree predates the
initiation of the legal process on which the adoption order is based.
Allowing such adoptions would create clear opportunities to circumvent the
statutory age restrictions and thus abuse the immigration process.
Our new rule advances both of Congress’ policy interests in enacting the
adoption statutes—family unity and the prevention of fraud and abuse in
the immigration system. By recognizing retroactive adoptions as valid for
immigration purposes but still requiring the petition to be filed before the
child turns 16, we ensure that the recognition of adoptions remains tethered
to the age limit Congress imposed. Without this restriction an adoption
decree could be made retroactively effective to many years before the
adoption took place, as was the case in Cariaga, where the adoption
petition was filed after the beneficiary was 18 and the decree was made
retroactive to a date 12 years before its entry. Although we now consider
the holding in Cariaga to be too restrictive, the result in that case remains
proper and would be the same under the rule we adopt here. 3
B. Full Faith and Credit
Although we have determined that our prior rule was too restrictive, we
are not persuaded that we must recognize the beneficiary’s adoption based
on the statutory principle of full faith and credit in 28 U.S.C. § 1738 (2012),
which provides that the judicial proceedings of a State court must be
recognized as effective by other jurisdictions. See Bustamante-Barrera
v. Gonzales, 447 F.3d 388, 400 n.51 (5th Cir. 2006). That principle is not
controlling in this context.
In Bustamante-Barrera, the United States Court of Appeals for the Fifth
Circuit considered the effect of a nunc pro tunc custody decree granted in
3

We note that Congress has not modified the statute in response to Matter of Cariaga
even though it amended the Act several times after our decision was issued. For
example, in 1981 it raised the age limit for adoption from 14 to 16 years. See
Immigration and Nationality Act of 1981, Pub. L. No. 97-116, § 2(b), 95 Stat. 1611,
1611.

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California on the question of the legal custody of a child for purposes of
naturalization. The court stated that its refusal to credit the decree “for
purposes of federal immigration law [did] not even implicate the Full Faith
and Credit Act” because, for purposes of the naturalization statute, the
child’s custody status was determined only by Federal law. Id. Citing
Fierro v. Reno, 217 F.3d 1 (1st Cir. 2000), the court agreed with the First
Circuit’s refusal to give effect to a retroactively amended divorce decree,
stating that relying on such a nunc pro tunc order would “create the
potential for significant abuse and manipulation of federal immigration and
naturalization law.” Id. at 401; cf. Minasyan v. Gonzales, 401 F.3d 1069,
1080 n.20 (9th Cir. 2005) (distinguishing Fierro, where a nunc pro tunc
divorce decree created a legal fiction by retroactively changing the
relationship, from the petitioner’s decree, which recognized a separation
that was actually in effect in practice and as a matter of State law).
Domestic relations is “an area that has long been regarded as a virtually
exclusive province of the States.” United States v. Windsor, 133 S. Ct.
2675, 2691 (2013). However, immigration and naturalization law “exists
independent of state family law.” Bustamante-Barrera v. Gonzales,
447 F.3d at 399−400 (noting the “overarching constitutional interest in
uniformity of federal immigration and naturalization laws”). It is well
established that a State court’s recognition of a marriage as valid under
State law does not conclusively mean that immigration benefits will be
conferred based on that marriage. See, e.g., Matter of Laureano, 19 I&N
Dec. 1, 2 (BIA 1983); Matter of Brantigan, 11 I&N Dec. 493, 494 (BIA
1966); see also Matter of Magana, 17 I&N Dec. 111, 114 n.1 (BIA 1979)
(declining to give full faith and credit to a retroactive State court decree
declaring a marriage to be void ab initio).
An adoption is similar to a marriage in that the relationship must be
assessed on a case-by-case basis for immigration purposes, even if the State
views the relationship as valid. See Matter of Marquez, 20 I&N Dec. at
163; Matter of Y-K-W-, 9 I&N Dec. 176, 179 (A.G. 1961). A State court’s
evaluation of an adoption petition does not include an investigation into
whether the relationship was entered into “to facilitate entry of the adopted
child into the United States.” Matter of Marquez, 20 I&N Dec. at 163.
In regard to both adoption and marriage, Congress has expressed
concern regarding the potential for abuse of the immigration process and
has carefully drafted the Act in an effort to prevent fraud. See Kalal
v. Gonzales, 402 F.3d 948, 952 (9th Cir. 2005) (noting the “carefully
crafted scheme that Congress created for the purpose of avoiding marriage
fraud”); Matter of Li, 20 I&N Dec. 700, 702 n.3 (BIA 1993); Matter of
Marquez, 20 I&N Dec. at 163−64. As part of that scheme, Congress
included a definitive age restriction as a means of limiting who could
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qualify as an adopted child, separate from an evaluation of the bona fides of
the relationship. Therefore, we cannot give full faith and credit to a State
adoption decree without regard to whether the State law provides
limitations like those in Hawaii that would preserve the integrity of the age
restrictions that Congress considered to be essential to whether an adoption
should be recognized for immigration purposes.
We are aware of district court decisions rejecting Matter of Cariaga and
holding that a beneficiary who was adopted by an order that was issued
after the child turned 16, but with an effective date prior to the child’s 16th
birthday, qualifies as a “child” under section 101(b)(1)(E)(i) of the Act.
See Cantwell v. Holder, 995 F. Supp. 2d 316 (S.D.N.Y. 2014);
Gonzalez-Martinez v. Dep’t of Homeland Sec., 677 F. Supp. 2d 1233
(D. Utah 2009). 4 We are not bound to follow district court decisions. See
Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Nevertheless, we have
reviewed the reasoning in these cases, which was based, in part, on
principles of full faith and credit and which also viewed Cariaga as not
having adequately considered congressional intent regarding family
unification. While we disagree with the district courts’ reliance on full
faith and credit, we do now place greater emphasis on family unity and
agree that, in certain circumstances, retroactive adoptions should be
recognized.
C. Beneficiary’s Adoption Under Hawaii Law
Section 578-8(a) of the Hawaii Revised Statutes expressly permits a
court to establish an effective date for an adoption that is prior to the date
the decree is entered, so long as it is not before the date the petition was
filed. Thus, pursuant to this statute and section 101(b)(1)(E)(i) of the Act, a
person who is older than 16 at the time of filing the petition would not
qualify as an adopted child under the immigration laws. See Sook Young
Hong v. Napolitano, 772 F. Supp. 2d at 1280.
In this case, the petition to adopt the beneficiary was filed 2 months
prior to her 16th birthday, but the adoption decree was issued after her
16th birthday. The judge made the effective date of the order of adoption
retroactive to the day the petition was filed. Accordingly, we will sustain
the petitioner’s appeal to the extent that the District Director’s decision
rejecting the validity of the adoption decree based on its retroactive
effective date is contrary to our new rule.
4

We note that in Khalil v. Napolitano, 983 F. Supp. 2d 484 (D.N.J. 2013), the court
upheld the rejection of a nunc pro tunc adoption, finding that it followed our reasonable
interpretation of the immigration laws in accordance with congressional intent.

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We nevertheless find it appropriate to remand the record for the District
Director to further consider this case. On remand, the petitioner must
establish that the adoption warrants recognition under our new rule. In
addition to establishing that the adoption decree should be recognized as
valid, the petitioner must meet all the requirements of section
101(b)(1)(E)(i) of the Act and show that the adoption was not undertaken
for the purpose of conferring immigration benefits on the beneficiary. 5
See Matter of Marquez, 20 I&N Dec. at 164. In remanding this matter, we
express no opinion as to the ultimate outcome.

IV. CONCLUSION
In summary, we are convinced that Matter of Cariaga and Matter of
Drigo established a rule that is too rigid in refusing to recognize any
nunc pro tunc or retroactive adoption orders. Accordingly, we hold that the
rule should be modified in part. We conclude that the phrase “adopted
while under the age of sixteen years” is broad enough to encompass
a retroactive or nunc pro tunc State court adoption order that was entered
after the beneficiary was more than 16 years old, but with an effective date
prior to his or her 16th birthday, so long as the adoption petition was filed
before the beneficiary’s 16th birthday and the State expressly permits an
adoption decree to be dated retroactively.
ORDER: The appeal is sustained in part.
FURTHER ORDER: The record is remanded to the District
Director for further proceedings consistent with the foregoing opinion and
for the entry of a new decision.

CONCURRING OPINION: Michael J. Creppy, Board Member
I respectfully concur.
I agree with the majority that our holdings in Matter of Cariaga,
15 I&N Dec. 716 (BIA 1976), and Matter of Drigo, 18 I&N Dec.
223 (BIA 1982), established a rule that is too rigid in holding that
retroactive or nunc pro tunc adoption decrees are always invalid for
immigration purposes.
I write separately because nothing in either the statute or legislative
history indicates a congressional intent to exclude a potential category of
5

At the time of the beneficiary’s adoption her biological parents were both living in
China. The record includes a letter from the petitioner stating that the beneficiary’s
“parents and I believe that growing up in Hawaii will benefit her most.”

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bona fide adoptive relationships that were legally established prior to the
child’s 16th birthday, as evidenced by a lawful adoption decree.
I do not find support for the majority’s general conclusion that the
timing of the filing of the adoption petition with the court or other
government entity may be the determinative factor as to whether the
retroactive or nunc pro tunc adoption decree should be recognized for
immigration purposes. The failure to file a petition for adoption prior to the
child’s 16th birthday does not nullify the existence of a valid adoptive
relationship that was legally established prior to the beneficiary’s 16th
birthday by a lawful adoption decree.
Generally, the Act requires an alien seeking a family-based immigration
benefit to establish the existence of a qualifying relationship. See sections
201(a)(1), (b)(2)(A)(i), 203(a) of the Immigration and Nationality Act,
8 U.S.C. §§ 1151(a)(1), (b)(2)(A)(i), 1153(a) (2012); see also 8 C.F.R.
§ 204.2 (2015). A family-based immigration petition based on an adoption
is no different, because a qualifying adoptive relationship must legally
exist. The existence of a legal qualifying adoptive relationship is
established by the issuance of a valid adoption decree by a court or other
government entity. Therefore, where a lawful adoption decree establishes
the existence of an adoptive family relationship that was created prior to
child’s 16th birthday, it is a qualifying relationship for immigration
purposes, regardless of whether the decree is retroactive or not.
On this basis, I conclude that it is not the filing of the petition for
adoption that is the determinative factor of this issue. Rather, it is the legal
establishment of an adoptive relationship prior to the child’s 16th birthday,
by a legally valid adoption decree, that is the determinative and controlling
factor as to whether the retroactive or nunc pro tunc adoption decree should
be recognized as establishing the existence of a qualifying relationship for
immigration purposes.
However, it is important to bear in mind that while a final adoption
decree provides for the legal existence of an adoptive relationship under the
laws of the jurisdiction where it took place, it does not establish that
a bona fide adoptive relationship exists within the meaning of the Act. An
adoption decree is not conclusive evidence that the adoptive relationship is
bona fide for immigration purposes until the Department of Homeland
Security (“DHS”), in evaluating the petitioner’s evidence, including the
adoption decree, determines that a bona fide adoptive family relationship
was established. The issuance of an adoption decree does not divest the
DHS of its sole authority to determine if the adoptive family relationship is
bona fide for immigration purposes.

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MATTER OF LEE
Application

for Permission to Reapply
A-16027182

Decided by Commissioner December 21, 1978
(1) A record of immigration violations standing alone will not conclusively support a
finding of lack of good moral character ( Matter of Carbajal, Interim Decision 2765
(Comm. 1978) ).
(2) Recency of deportation can only be considered when there is a finding of a poor moral
character based on moral turpitude in the conduct and attitude of a person which
evinces a callous conscience. In such circumstances, there must be a measurable
reformation of character over a period of time in order to properly assess an applicant's ability to integrate into our society. In all other instances when the cause for
deportation has been removed and the person now appears eligible for issuance of a
visa, the time factor should not be considered.
(3) Matter of H R , 5 l&N Dec. 769 (C.O. 1954); Matter of Chim,14I&N Dec. 357 (R.C.
1973), modified to the extent that sections 212(a)(16) and (17) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(16) and (17), are interpreted to include remedial
relief for previously deported or excluded aliens.
—

—

ON BEHALF OF PETITIONER:

Jack Wasserman, Esquire
1707 H Street, N.W.
Washington, D.C. 20006

This matter is before the Commissioner on certification as provided
by 8 C.F.R. 103.4, for review of the Regional Commissioner's decision to
dismiss the appeal from the District Director's order denying an
application for permission to reapply for admission into the United
States after deportation.
The applicant is a 39-year-old native and citizen of China residing in
Hong Kong- He first came to Service attention as a crewman on board
the M/V Eastern Star applying for permission to land temporarily in
pursuit of his calling on June 1, 1965. His application was refused and
he was ordered detained on board as a mala fide crewman. On a
subsequent arrival on the same vessel on November 9, 1965, at Port
Angeles, Washington, he was granted permission to land temporarily
as a crewman. On November 18, 1965, the applicant, accompanied by
two other crewmembers, left the vessel at Port Angeles, Washington,
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and traveled by bus to Seattle, Washington, despite a standing order
issued by the Captain of the M/V Eastern Star that shore leave for all
crewmembers was restricted to the immediate area of Port Angeles.
The applicant and his two companions were taken into custody at the

bus station in Seattle by immigration officers. They were charged with
attempting to desert the vessel on which they arrived, permission to
land was revoked, and they were ordered deported pursuant to section
252(b) of the Immigration and Nationality Act of 1952, as amended, 8
U.S.C. 1282(b). The applicant was returned to his vessel at Port
Angeles on November 20, 1965, and ordered detained on board in
custody of the Master. His deportation from the United States was
effected on November 24, 1965, upon the vessel's departure from the
United States. The applicant was refused landing privileges as a
crewman on five subsequent occasions of arrival on foreign-registered
vessels in the United States. On the fifth occasion of arrival (July 3,
1969), he deserted his vessel, the M/V Deganya, at Newark, New
Jersey. Efforts by the Service to locate the applicant were unsuccessful. On July 21, 1975, a sixth -preference petition was submitted by the
China Garden Restaurant, Incorporated, Raynham, Massachusetts, on
the applicant's behalf. This petition was approved on May 21, 1976. At
the request of this Service, the applicant surrendered himself to this

Service at Boston, Massachusetts, and was granted the privilege of
departing voluntarily from the United States. The record contains
verification of departure on August 21, 1976, from Anchorage, Alaska,
to Tokyo, Japan.
The applicant made application for an immigrant visa at the United
States Consulate in Hong Kong and was informed on October 22, 1976,
that he needed permission to reapply for admission into the United

States after deportation. The instant application was then filed on
October 29, 1976, at Boston and subsequently transferred to the Seattle
office, which had jurisdiction in the matter pursuant to 8 C.F.R.
212.2(c).
The District Director denied the application as a matter of discretion and cited Matter of Tin, 14 I&N Dec. 371 (R.C. 1973), and Matter of
Chim, 14 I&N Dec. 357 (R.C. 1973), as justification for his action. The
Regional Commissioner affirmed the District Director's decision and
dismissed the appeal.
Section 212(a)(17) of the Immigration and Nationality Act of 1952,
as amended, 8 U.S.C. 1182(a)(17), has its roots in section 3 of the Act of
1917. Section 3 made prostitutes and other immoral classes who had
been previously debarred or deported from the United States excludable unless they had received permission from the Secretary of Labor
to reapply for admission. The Act of March 2, 1929, extended this
provision, making it a felony to reenter the United States after having
276

Interim Decision #2766
been deported unless the Secretary had granted permission to reapply
for admission after deportation.
The Immigration and Nationality Act of 1952, as amended, incorporated the same language but made a distinction between those
previously excluded (section 212(a)(16) of the Act) and those who had
been deported (section 212(a)(17) of the Act). Those previously excluded require permission of the Attorney General to reapply for
admission if that application was to be made within 1 year of the date

of exclusion and deportation. Those previously deported require the
permission of the Attorney General to reapply for adthission at any
time after deportation.

The intent of Congress in enacting section 212(a)(16) and (17) can
best be found in the conclusions and recommendations of the Senate
Committee on the Judiciary in their report (S. Rep. No. 1515, 81st
Cong., 2nd Sess. (1950)) concerning the effectiveness and necessity of
retaining the various laws affecting immigration. A study was conducted pursuant to S. Res. 137, 80th Cong., 1st Sess., for the purpose of
bringing all laws pertaining to imr nigration and nationality under one
composite heading. (The Immigration and Nationality Act of 1952 was
-

the fruit of these labors.) The Committee report issuing from this
study addressed the subject of previously deported or excluded aliens
and made the following conclusions and recommendations.
Speaking of section 3 of the 1917 Act, the Committee stated:
The subcominittee finds that the law as it is now written is adequate to prevent the
abuse of the exclusion and deportation laws by aliens who attempt to reapply for
admission to the United States soon after their exclusion or deportation, as well as to
allow reconsideration when the alien is able to overcome the handicaps which brought
about the original exclusion and deportation. Page 365. (Underscoring supplied.)

The second clause of these conclusions and recommendations directly concerns the instant application. The import of these words is to
give a previously deported alien a second chance and connotes a
remedial relief rather than a punitive provision of statute. In this
regard, I find the several decisions affecting permission to reapply
after deportation lacking this attitude. Matter of H—R—, 5 I&N Dec.
769 (C.O. 1954), and Matter of Chirt, supra, convey a punitive attitude

and attach conditions beyond anything I believe Congress intended in
granting the Attorney General authority to allow previously deported
or excluded aliens to reapply for entry into the United States. The
discussion of the issues raised in the instant case will be made with the
foregoing in mind.
1. Moral character of the applicant:
In a recent case before me on certification, the Regional Commissioner also held that a
record of immigration violations denoted poor moral character and cited this finding
as one of the adverse factors considered. In that case, I ruled that contention was
277

Interim Decision #2766
without merit, and reaffirmed Matter of T—, 1 I&N Dec. 158 (BIA 1941), in that a
record of immigration violations standing alone will not conclusively support a finding
of a lack of good moral character. In the instant case, I will likewise dismiss the
contention that the applicant is a person lacking good moral character.
2. Recency of the deportation:
The recency of the deportation is mentioned as a factor to be considered in Matter of
Tin, supra. However, there is but a passing reference to this factor. ("As a further
example, an alien who was deported many years ago solely for a minor immigration
violation and who has a bona fide reason for wanting to immigrate to the United
States, may be granted permission to reapply ....")
I believe that the recency of the deportation can only be considered when there is a
finding of poor moral character based on moral turpitude in the conduct and attitude
of a person which evinces a callous conscience. In such circumstances, there must be a
measurable reformation of character over a period of time in order to properly assess
an applicant's ability to integrate into our society. In all other instances when the
cause of deportation has been removed and the person now appears eligible for
issuance of a visa, the time factor should not be considered.

3. Need for the applicant's services in the United States:
The Regional Commissioner considered the need for the services of the applicant in
the United States and dismissed this as a favorable factor. However, I find there is

merit in counsel's contention that where the applicant will provide services to the
public in a job category where sufficient workers in the United States are not available,
this is a favorable factor in behalf of the applicant

4. Applicant's contention that he did not know he was deported:
This contention will be dismissed without discussion. The record clearly shows he was
deported pursuant to section 252(b) of the Act and does need permission of the
Attorney General to apply for admission to the United States.

5. Length of time applicant had been in the United States:
I can only relate a positive factor of residence in the United States where that
residence is pursuant to a legal admission or adjustment of status as a permanent

resident.
If we were to reward a person for remaining in the United States in violation of law,

the structure of all laws pertaining to immigration would be seriously threatened.
Therefore, I will dismiss counsel's contention that tliis should be considered a

favorable factor.

In item #1, the Regional Commissioner discussed the record of
immigration violations in the context of equating these violations with
a finding of a lack of good moral character. While I dismissed the
finding of poor moral character, I will not lightly dismiss a serious
record of immigration violations. An evinced callous attitude toward
violating the immigration laws without a hint of reformation of
character should be considered as a heavily weighted adverse factor. In
the instant case, I do find that hint of reformation of character in the
attitude of the applicant in surrendering himself to the Service and
departing the United States voluntarily as requested. While it may be
argued that his motivation in doing so was predicated on self-interest,
278

Interim Decision #2766
it is only natural that positive character reformation is more apt to
take place when a benefit seems likely to accrue to a person.
In applying the principles set forth in this discussion and weighing
all factors present, I find that the applicant should be granted permis
sion to reapply for admission into the United States after deportation
and will set aside the order of the District Director denying the
application and the Regional Commissioner's dismissal of the appeal.
Matter of Chin, supra, and Matter of Tin, supra, are modified insofar
as the weight given to adverse factors is inconsistent with the weight
accorded the adverse factors in this decision.
ORDER: The District Director's decision denying the application
for permission to reapply for admission after deportation and the
Regional Commissioner's dismissal of appeal to that decision is hereby
set aside, and the application is granted.

279


Interim Decision #2847

MATTER OP CASTELLON
In Exclusion Proceedings
A-24436419
Decided by Board February 2, 1981
(1) The Board of Immigration Appeals does not have authority to review the manner in
which the District Directors exercise parole power.
(2) Applicants for admission in exclusion proceedings do not ordinarily enjoy the same
constitutional rights that are available to aliens who have made an entry into the
United States.
(3) A Cuban "refugee" who had been Paroled into the United States was properly found
excludable, upon revocation of parole by the District Director, on the ground that he
lacked documents as an immigrant, despite the failure of the Immigration and
Naturalization Service to establish the companion ground of excludability, commission of a crime of moral turpitude, which had led to the institution of the proceedings.
(4) An application for asylum under section 208, made after the institution of exclusion
or deportation proceedings, may also be considered as a request for withholding of
deportation under section 243(h).
(5) The application for asylum of a Cuban "refugee" was denied where the application
was based only on the alien's unsupported claim that his imprisonment for theft was a
politically motivated entrapment, particularly in view of his having been cited on six
occasions for exemplary performance in a government office.
EXCLUDABLE:
Order: Act of 1952—Sec. 212(a)(9) [8 U.S.C.1182(a)(9)]—Convicted of a crime involving
moral turpitude
Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant not in possession of valid unexpired immigrant visa or other valid entry
document
ON BEHALF OF SERVICE
Jim Tom Haynes, Esquire
Appellate Trial Attorney

ON BEHALF OF APPLICANT:
Donald M. Chinnfa, Esquire

Atlanta Legal Aid Society, Inc.
302 E. Howard Avenue
Decatur, Georgia 30030

BY: Milhollan, Chairman; Maniatis, and Maguire, Board Members. Dissenting Opinion:
Irving A. Appleman, Board Member

In a decision dated July 23, 1980, an immigration judge found the
applicant excludable under section 212(a)(20) of the Immigration and

616

Interim Decision #2847
Nationality Act, 8 U.S.C. 1182(a)(20), dismissed an additional charge of
excludability under section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9),
denied a request from the applicant for political asylum, and ordered
his exclusion and deportation from the United States. The applicant
has appealed. The appeal will be dismissed.
The applicant is a 29-year-old native and citizen of Cuba who was
part of the recent exodus from that country. He arrived on May 8, 1980.
at Key West, Florida, and was paroled into the United States
temporarily under the provisions of section 212(d)(5) of the Act, 8
1182(d)(5). On May 16, 1980, employees of the Immigration and
Naturalization Service interviewed the applicant in the Spanish language and then prepared an affidavit and a Request for Asylum (Form
1-589) for him in English, which he then submitted to a Service District
Director. These documents state that the applicant was convicted in
Cuba in 1976, for the crime of embezzlement and sentenced to 12 years
in prison. On the basis of this information, the District Director
terminated the applicant's parole, detained him pursuant to section
235(b) of the Act, S U.S.C. 1225(b), and on June 9, 1980, charged him
with being excludable from the United States under section 212(a)(9)
of the Act on the ground that he had been convicted of a crime
involving mural turpitude, and under section 212(a)(20) on the ground
that he was not in possession of a valid, unexpired immigrant visa or
other valid entry document.
On May 28, 1980, the District Director requested an opinion from the
Department of State concerning the applicant's asylum claim. A
Deputy Assistant Secretary for Human Rights and Humanitarian
Affairs, at the Department of State, replied that he believed that the
applicant had commited a serious nonpolitical crime prior to his
arrival in the United States and that he was therefore not eligible for
asylum. On June 26, 1980, the District Director denied the applicant's
asylum request on the ground that he had been arrested and convicted

in Cuba of a serious nonpolitical crime. .
On July 23, 1980, the applicant appeared before the immigration
judge, with counsel, at an exclusion hearing. The applicant admitted
that he did not have a visa, but he denied that he was excludable under
either of the alleged charges. The applicant also renewed his application for asylum. •
The applicant alleged in support of his asylum request that his
criminal conviction was the result of politically motivated entrapment.
According to his testimony, the following events led to the conviction.
In 197G, while he was working at the Ministry of Transportation in

Cuba, a fellow employee at the Ministry asked him to join the Communist Party. He refused to join, and because of that refusal, efforts
were made to remove him from his position. These efforts were un-

Interim Decision #2847
sucessful, however, because he had been cited on six occasions for being
an exemplary employee and no firm basis could be found for firing him.
Subsequently, the employee who had asked him to join the Communist
Party convinced him that she was planning to escape from Cuba with
several other employees. She persuaded him to join the group and to
assist them in stealing money from the Ministry to finance their
escape. Sometime later, she told him during a dinner break that the
money had been taken and that it was in his office. When he returned to
his office, he found the money in a box under his desk. Several minutes
later, policemen entered the office and arrested him. A trial was held,
he was found guilty of some form of theft, and then he was sentenced to

12 years in prison. After serving 4 years of that sentence, he was
released to emigrate to the United States.
The applicant also testified that the Cuban government had discriminated. against him because he was Catholic. He had to work
longer hours and could not attend religious ceremonies. He admitted,
however, that most Cubans were Catholics and that apparently they
were all persecuted by the Cuban government because of their religious beliefs. He testified further that he was accused in 1974 of
holding anti-government meetings in his home, but that the charge
was never substantiated.

Thd immigration judge found that the excludability charge under

section 212(a)(9) of the Act could not be sustained. He found further,
however, that the applicant was excludable under section 212(a)(20) as
an immigrant who did not have a valid, unexpired immigrant visa or
other valid entry document. Finally, he denied the applicant's application for asylum on the ground that the applicant had not established a
significant probability that he would be singled out for persecution by
the Cuban government if he returned to that country.
In his appeal brief and during an oral argument before this Board,

the applicant has contended that it is manifestly unjust to order his
exclusion under section 212(a)(20) of the Act. The Service paroled him

into the United States knowing that he did not have entry documents,
and the only reason for separating him from thousands of other Cuban
refugees who were paroled in without entry documents, was the suspicion that he might be excludable under section 212(a)(9) of the Act.
Since the immigration judge has found that he is not excludable under

that section of the Act, there is no longer any reason to deny him the
parole status that his undocumented countrymen are enjoying.
In response to a request from this Board to clarify the Service's
position on the applicant's argument, the appellate trial attorney, who
appeared for the Service at the oral argument, submitted the following

memorandum on October 29, 1980. A copy of this memorandum was
618

Interim Decision #2847
sent to the applicant.
At oral argument in the above-referenced matter on October 21, 1980, the Board
requested the Service's views on a policy question which was presented. That question
is whether the Service intends to seek exclusion under Section 212(a)(20) of the At of
a Cuban national such as the applicant herein after a charge under Section 212(a)(9)
has not been sustained by the Immigration Judge.
It is the present Service policy to pursue an exclusion order under Section 212(a)(20)
in such circumstances. A separate determination will be made in such cases as to
whether release from custody is warranted.

Before addressing the applicant's argument, we will briefly summarize the procedures that ordinarily are followed by the Service
when an alien seeks to enter the United States. In addition to any
physical or mental examinations which might be required, the alien is
inspected by an immigration officer pursuant to section 235(a) of the
Act. If the immigration officer concludes that the alien appears to be
clearly and beyond a doubt entitled to enter the United States, he is
admitted. Otherwise, he is detained for an exclusion hearing before an
immigration judge pursuant to section 225(b) of the Act. If the immigration judge finds that the alien is excludable and orders him
excluded and deported from the United States, the alien may appeal
the immigration judge's decision to this Board.
In this case, the applicant and his countrymen arrived at Key West,
Florida without entry documents and were taken into custody by the
Service. In view of their extraordinary circumstances, the inspection
process of section 235(a) was deferred and they were paroled into the
United States by the District Director under section 212(d)(5) of the
Act. It is important to note in this regard that under the terms of that
section such parole did not constitute an admission of these aliens into

the United States. Moreover, the section provides further that when
such parole status is terminated, the paroled aliens shall forthwith
return or be returned to the custody from which they were paroled, and
thereafter they will be dealt with in the same manner as that of any
other applicants for admission to the United States. Consequently,
when the District Director subsequently acquired information which
led him to believe that the applicant was excludable under section

212(a)(9), and revoked his parole status on the basis of that information, he was returned to the custody of the Service and placed in
exclusion proceedings.
Turning now to the applicant's argument, we note first that our
authority in this matter is limited. Although we agree with the applicant that there does not appear to be a sufficient justification for
keeping him in exclusion proceedings, while thousands of other undocumented Cubans are enjoying parole status, we cannot reinstate
his parole status. The Attorney General delegated the exercise of the

Interim Decision #2847
parole power under section 212(d)(5) exclusively to the District
Directors, and this Board does not have authority to review the manner in which they exercise that power. Matter of .1fiayesh„ Interim
Decision 2753 (BIA 1980): Matter of Lepofsky, 14 IN Dec. 718 (BIA
1974); Matter of Conceiro,14 I&N Dec. 278 (BIA 1973), ord, Conceiro v.
Marks, 360 F.Supp. 454 (S.D.N.Y. 1973). Our role in these proceedings is
limited to reviewing the immigration judge's finding of excludability
and his rejection of the 'applicant's asylum request. Moreoever, the
scope of our review is limited further by the fact that applicants for
admission in exclusion proceedings do not ordinarily enjoy the same
constitutional rights that are available to aliens who have made an
entry into the United States. Matter of Cenatice, et al..,16 I&N Dec. 162
(BIA 1977).'
Section 212(a) of the Act provides in pertinent part that aliens in the
following class shall be excluded from admission into the United
States:
(20) Except as otherwise specifically provided in this Act, any immigrant who at the
time of application for admission is nut in possession of a valid unexpired visa,... or
other valid entry document required by this Act, and a valid unexpired passport, or
other suitable travel document...

not
established that they are entitled to a "nonimmigrant" classification..
See section 214(b) of the Act, 8 U.S.C. 1184(b).
The applicant has not established or even claimed entitlement to a
"nonimmigrant" classification. Consequently, he is an "immigrant.'
Secondly, we are not aware of any law or regulation which exempts
immigrants in the applicant's situation from compliance with the
The term "immigrant" in that section refers to all aliens who have

documentary requirements of section 212(a)(20). Accordingly, since he

does not have the documents required by that section, we find that he is
excludable from the United States.
The applicant also contends that political asylum should be granted
to him because he will be persecuted in Cuba on account of his religious
and political beliefs, and he will be returned to prison to serve the
balance of the 12-year sentence for the trumped up theft charge.
An application for political asylum under section 208 of the Act, 8
U.S.C. 1158, made after the institution of exclusion or deportation

proceedings, shall also be considered as a request for withholding of
deportation under section 243(h) of the Act, 8 U.S.C. 1253(h). 8 C.F.R.
208.3(b) (effective June 1, 1980). While we recognize that there may be
` Compare Paktorovics v. Murff, 260 F.2d 610 (2 Cir. 1958), in which it was held that an
alien had a constitutional right to duo proecoo oven though ho had not boon admitted to

the United States. That case, however, involved special circumstances that are not
present in these proceedings. See Ahrens v. Rojas, 292 F.2d 406 (5 Cir. 1961); Sui Fung
Lick v. Rosenberg, 271 F.Supp. 485 (C.D. Cal. 1967).

620

Interim Decision #2847
differences between "asylum" and "withholding of deportation" in
another context, we will refer to both forms of relief by the term
"asylum" in this case. An applicant for such relief must establish that,
if deported, he would be subject to persecution based on his race,
religion, nationality, membership in a particulai social group, or political opinion. Matter of McMullen, Interim Decision 2831 (BIA 1980).
Accordingly, we will address the merits of the applicant's asylum
request. The only significant allegation in the applicant's asylum claim
is that his imprisonment was the result of politically motivated entrapment, and he has not supported that allegation with any evidence
other than his own account of the events which led up to the imprisonment. Furthermore, we find it incredible that the Cuban government
would orchestrate such a scheme because of the applicant's refusal to
join the Communist Party or on account of unsubstantiated accusations that covert political meetings had been held at his home, especially in view of the fact that the applicant had been cited on six
occasions for exemplary performance as an employee at a government
office. We find, therefore, that he has not met his burden of establishing eligibility for asylum.
We conclude that the decision of the immigration judge was correct.
Accordingly, we will dismiss the applicant's appeal.
ORDER: The appeal is dismissed.

DISSENTING OPINION Irving A. Appleman, Board Member
I respectfully dissent.
The applicant arrived May 8, 1980, as part of the Cuban boat-lift. He
was paroled, and was placed under exclusion proceedings on June 9,
1980, charged with inadmissibility under section 212(a)(9) for commission of a crime, and section 212(a)(20) for lack of a valid visa. The
majority decision sustains the immigration judge's decision rejecting
the first, but finds him inadmissible on the second. Simultaneously, it
denies his application for asylum under the Refugee Act of 1980, P.L.
96-212, 94 Stat. 102, because of a failure to establish that he would be
persecuted on return to Cuba.
According to an Immigration and Naturalization Service press
release of June 26, 1980, Cubans who arrived in the United States
between April 21, 1980, and June 19, 1980, and were in Immigration and
Naturalization Service proceedings as of the latter date, were to be
granted extensions of parole to January 15, 1981. This was "in compliance with Presi dent Carter's previously announced policy to give Congress time in which to consider special legislation that would regularize the status of Cubans and Haitians known to be in the United

Interim Decision #2847
States prior to June 19.1"
The policy referred to was set forth in a published statement of
Victor H. Palmieri, U.S. Coordinator for Refugee Affairs on June 20,
1980. This legislation [The Refugee Act of 1980] did not contemplate the kind of situation we face now, with a sudden massive influx,
without overseas processing and valid documentation. . In order to
redress this extraordinary situation yet maintain the integrity of our

refugee laws for those applying for admission in the prescribed manner, the President has decided to seek special legislation regularizing
the status of Cuban-Haitian entrants...." .
The administration bill, S. 3013, was introduced on August 5, 1980. It
created a special Caban/Haitian Entrant status for these Cubans who
arrived after April 20 and before - June 20, 1980, and provided for
adjustment of statues after 2 years. These admissions would not count
against the numerical limitations of the Immigration and Nationality
Act. In submitting the bill to the Congress, a spokesman for the
Attorney General stated, "This special, one time only, legislation is
necessary to meet problems nut contemplated by the Refugee Act of

1980. The refugee provisions of the Act do not provide for the sudden
and massive arrival of persons to the United States who did not
undergo overseas processing_ . _ Additionally, many rif the Cubans and

Haitians would not qualify under the strict standards for asylum."
(Emphasis supplied.) See Congressional Record—Senate, August 5,
1980, S. 10825 at S. 10827.2
From the outset, these Cubans have been regarded as outside the
asylum provisions of the Refugee Act of 1980. However, where there
was reason to believe the alien was inadmissible for commission of a
crime, the Service has instituted exclusion proceedings and has accepted and processed asylum applidations. Other Cubans who arrived
during the specified period are not being placed in exclusion proceedings, nor are their asylum applications being processed. See oral argu' See press release, quoted in American Council for Nationalities Service, Interpreter
Releases, Vol. 57, No. 25, pp. 305-6, June 30, 1980. The implementing Immigration and
Naturalization Service inctructions appear in a telegraphic message to field offices dated

July 3, 1980, under file no. CO 242.1-P. The same treatment has now been authorized for
Cubans who arrived between June 20,1980, and October 10, 1980, and who were in Service
proceedings as of October 10,1980. Interpreter Releases, Vol. 57, No. 41, October 23, 1980.
Immigration and Naturalization Service proceedings is interpreted as meaning any
Cuban or Haitian who has appeared before an immigration officer and has been documented in some fashion." Service telegram of July 3, 1980, supra.
"The Refugee Act did not intend to address a situation of this type or magnitude."
Key Issues lecture by Peter W. Bodine, Jr., Chairman, Committee of the Judiciary,

United States House of Representatives, November 12, 1980, reprinted in American
Council for Nationalities Service Interpreter Releases, November 19, 1980, Vol. 57, No. 44,
p. 535, at 542.

622

Interim Decision #2847
ment p. 9.
There is justification for treating a Cuban who may be excludable
because of a criminal conviction, as excepted from the general policy
and procedure. Only a relative few of the boat-lift Cubans have committed "serious nonpolitical crimes." If they are conceivably a danger
to the community, or if, according to their past histories, there is
reason to believe they are ineligible for, or unworthy of, gaining a

foothold in this country, then they should be subject to the strictures of

the Immigration and Nationality Act, just as much as, e.g., an alien
who seeks to enter with subversive intent, 8 U.S.C. 1182(a)(29). The
institution of exclusion proceedings against this special group is not
unreasonable and we have had no hesitation in accepting jurisdiction
over appeals from adverse rulings below.
The appeals have presented dual aspects of excludability and
"refugee" status. In passing on the appeals, we have regarded each
asylum application under the Refugee Act, as embracing an application for a stay of deportation to Cuba under section 243(h) of the

Immigration and Nationality Act, 8 U.S.C. 1253(h). Once excludability
under 8 U.S.C.. 1182(a)(9) was established, we have passed on the
section 243(h) application. However, we have declined, sub silentio, to
rule on eligibility for asylum under the Refugee Act, since that question was awaiting legislative resolution at the request of the administration. In considering section 243(h) relief, we applied the requirements for that relief as now amended by the Refugee Act of 1980,
including the bar for those who have committed a "serious nonpolitical
crime." The persecution issue was reached as a part of the analysis of
the possible political nature of the crime. See Matter of RodriguezPalma, Interim Decision 2815 (BIA 1980).
It could be argued that consideration of the section 243(h) application should also have been deferred. We chose not to, because of our
long standing and established jurisdiction over this relief as a part of
-

the Immigration and Nationality Act,3 and the fact that, as a stay of
deportation to a designated country, it was an inherent part of the
appeal before us, distinguishable from a grant or denial of permanent

residence to an asylee. "Asylum" applications for the "boat-lift"
Cubans may or may not be under our jurisdiction when the matter is
finally resolved by the Congress, and implemented by regulation. The
requirements for "asylum" for the group, in whatever form that relief
takes, are not even known to us at this writing. Hence, while the terms
"asylum" and "refugee" have frequently been used interchangeably,
3 Although jurisdiction over the application in exclusion proceedings was extended to
immigration judges and the Board only on May 10, 1979 (8 C.F.R. 2382), it has long been

a part of deportation proceedings (S C.F.R. 242.17(e)).

Interim Decision /12847
and the Service itself uses one application form to cover both (see 8
C.F.R. 108.1), up to now, this Board has not ruled upon Cuban asylum
applications under the Refugee Act of 1980, although we have passed
upon the same application insofar as it could be deemed a request for a
stay of deportation under section 243(h) of the Act. 4
This selectivity has now been abandoned. The majority has considered the asylum application on the merits under the Refugee Act. Of
course the applicant cannot qualify. Very few of these Cubans can.
Their ineligibility has been acknowledged publicly, yet their removal
has not been sought. Rather, their paroles have been extended while
legislation is pressed to take care of them, despite the lack of a visa and
the inapplicability of the Refugee Act.
The sole apparent reason the applicant was singled out for the
initiation of exclusion proceedings, was because of a possible criminal
basis for excludability under 8 U.S.C. 1182(a)(9). For the reasons noted,
this was acceptable. The criminal ground of excludability has fallen by
the wayside. Nevertheless, the Service insists that the case continue to
be prosecuted and that the appeal be decided in all aspects, and the
majority has acquiesced. This raises an issue whether the full sanction

of the law should be applied, at this time, when the applicant has not
been shown to be within any special category, but is excludable solely
for grounds applicable to all of the other thousands of Cubans who
came here when he did.
The other "boatlift" Cubans are in a limbo where they are not
subjected to exclusion proceedings, where no order of exclusion and
deportation has been entered against them, where their asylum applications are neither denied nor approved, but are either not accepted,
or, if accepted, are not processed. None of them have immigration
documents and they are equally inadmissible for lack of them. It is
doubtful if more than a handful could qualify technically under the
Refugee Act. On the record before us, the applicant is now in like
position, yet the majority has affirmed his inadmissibility for lack of a
valid visa, has denied his asylum claim for lack of proof, and has
ordered his exclusion and deportation.
In my view, it is both absurd and improper for the Service to press
forward with this case now that the exclusion charge based on a crime
is no longer applicable. This Board acts as the surrogate of the Attorney General in those matters within our jurisdiction. This is obviously a policy area, but it is not one in which policy is unclear. I see no
4 Matter of Rnririguez-Polma., supra. For discussion of possible differences between a
stay of deportation under section 243(h) and asylum, see Matter of McMullen, Interim
Decision 2831 (BIA 1980). Cf. Matter of Duwar, 14 I&N Dec. 310 (BIA 1973), for comparison prior to Refugee Act.

624

Interim Decision #2847
room for interpretation by us of the applicability of the statute to this
applicant at this time. By ruling as it has, the Board has defeated the
expressed desire of the executive branch of the Government, and
anticipated adversely the as yet unexpressed will of the Congress. This
I am unwilling to do.
True, there is no immediate threat of removal from the United
States. The Service is not presently deporting aliens to Cuba, so far as
known. Nevertheless, many possibilities exist. The visa requirement
which is the basis of the no-visa charge under 8 U.S.C. 1182(a)(20) may
be waived legislatively as to this special group.' They may be relieved
entirely of the asylum requirements of the Refugee Act, or be
statutorily defined as "refugees," either within or outside of existing
legislation, and regardless of proof of individual persecution. Admittedly, if, as, and when something of this sort takes place for other
Cubans in like position, this applicant, if still here, may move to reopen
these proceedings. On the other hand, he may not still be here, given
the outstanding order, the variable status of relations with Cuba
(under which Cuba might conceivably accept him back at some future
date), the possibility that some other country may accept him, and the
already demonstrated enthusiasm of the Service for continuing to
move against 1tim despite the failure of the criminal charge. Ryan
more importantly, the Board here sets a precedent under which the
Service is free to impose the full sanction of the Immigration and
Nationality Act on. any of the boat-lift Cubans, whetherin an excepqd
group or not.
I see no need to take these risks. No harm would be done in placing
the applicant back with the others in like status, to be treated however
they are ultimately treated, and under the same standards. I would
therefore remand this case to the Service, without passing at this time
on either inadmissibility under section 212(a)(20), 8 U.S.C. 1182(a)(20),
or on his asylum application, leaving it to the Service to take appropriate action as to parole.
,

S. 8013, made paragraphs (14), (15), (20), (21), (25), and (32) of section 212(a) of the

Act inapplicable, and permitted the Attorney General to
waive any other provision of section 212(a) except (27), (29), (33), and that part of (23)
relating to traffic in narcotics. Congressional Record—Senate, S. 10825, August 5, 1980.
The bill was still pending when. Congress adjourned and will undoubtedly be
Immigration and Nationality

reintroduced.


Interim Decision #1374

MAI Ang OP LEWIS

Application for PERMISSION TO REAPPLY*
A-11341677
Ddeidod by Aotin9 Regional Commissioner March 23, 1964
Because of his past convictions and deportations for illegal entry upon a false
claim of 'U.S. citizenship, applicant is denied permission to reapply for admission, pursuant to section 212(a) (17), Immigration and Nationality .Let,
in the exercise of discretion since his temporary admission under the provisions of section 212(d) (3) of the Act may be considered in connection with
an application to a United States consul for a nonimmigrant visa should
pressing need for medical treatment for himself or some other member of his
family require him to come to the United States at some future time.

The case is on appeal from the denial of the application by the District Director at Chicago. The District Director denied the application on the ground that the applicant's past immigration record does
not warrant favorable exercise of the discretion to grant the
application.
The applicant, 37 years old, married, a native and citizen of British
Honduras, who was deported from the United States on October 1,
1957, desires to reenter the United States as a visitor. On appeal, he
states that he would like to know that if sickness should occur in his
family or among his wife and children, he would be in a position to
- bring them to the United States for any sort of medical treatment not
available in his country.
The applicant first entered the United States on July 31, Mt as an
agricultural worker. He was reported on October 15, 1946 to be absent without leave from the Department of Agriculture Holding Center. He was apprehended on the same day and he departed voluntarily
to British Honduras under safeguards on November 1, 1946.
On October 14, 1956 the applicant entered the United States at San
Ysidro, California without inspection by claiming to be a United
States citizen. He was apprehended on September 4, 1957. He was
convicted in the United States District -Court, San Diego, California
666

Interim Decision #1374
on September 23, 1957 for entering the United States in that unlawful
manner. He was sentenced to imprisonment for four months but
execution of the sentence was suspended and he was placed on probation for five years on condition that he remain outside the United
States. He was deported from the United States on October 1, 1957.
The record shows that he entered the United States on October 14,

1956 to seek employment and to reside.
On July 4, 1960 he arrived at the port of San Ysidro, California and
attempted to enter the United States again by claiming to be a United
States citizen. He was paroled into the United States for prosecution.
He was convicted in the United States District Court, San Diego,
California on July 18, 1960 of illegally attempting to enter the United
States after deportation. He was sentenced to imprisonment for two

months for that offense. He was committed at the same time for an
additional four months for the crime of which he had been convicted on
September 23, 1957, and for which he had been placed on probation.
He was given a hearing in exclusion proceedings on November 16, 1960
-

and was ordered excluded and deported. as an immigrant without a
visa. The record shows that he attempted to enter the United States
on July 4, 1960 for the purpose of working in this country in order
to support his wife and children who were residing in British Honduras, and he was deported on December 17, 1960 pursuant to the exclusion order.
On July 27, 1962 he arrived at the port of New Orleans with a visitor's visa and was paroled into the United States for a hearing before
a special inquiry officer. He was instructed to report to the New

Orleans office on July 30, 1962 and then to the Chicago office on or before August 6, 1962. After a sworn statement was taken from him
in Chicago on August 6, 1962, he was released pending further notice
to appear for a hearing. The notice sent to him on August 21, 1962
to appear for a hearing on August 28, 1962 was returned undelivered
since he was not known at the address he gave. After an extensive
investigation to locate him, his departure to British Honduras on
December 18, 1963 was verified.
We agree with the District Director's decision to deny the application. Should a pressing need for medical treatment for himself or
some other member of his family require him to come to the United
States temporarily at some future time, the matter of authorizing his
temporary admission under the provisions of section 212(d) (3) of the
Immigration and Nationality Act may be considered in connection
with his -application to a United States consul for a nonimmigrant
visa.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
667


Interim Decision #2890

MATTER OF VEA
In Bond Proceedings

A-21314945
Decided by Board November 4, 1981
(1) After an initial custody determination has been made by a District Director or other
specified officer of the Immigration and Naturalization Service authorized to issue a
warrant of arrest, an alien may apply to the foregoing officials for release or amelioration
of the conditions of release. 8 C.F.R. 242.2(a).
(2) Once service of a warrant of arrest or determination of any application pertaining
thereto has been made by a District Director or other specified Service officer, the alien
may apply to an immigration judge for change In custody status at any tune before a
deportation order becomes administratively final, but if an alien is released from custody,
such application must be made to an immigration judge within 7 days from the date of
release; thereafter, the application can only be made to a District Director. 8 C.F.R.
242.2(a) and (b).

(3) Direct appeal to the Board of Immigration Appeals from a custody determination of a
District Director or other-designated Service officer is authorized only after a deportation
order becOmes administratively final or where recourse to an immigration judge is no
longer available because of the expiration of the 7-day period. 8 C.F. R. 242.2(a) and (b).
(4) Where the respondent was still in detention at the time he -applied for a change in
custody status anti no final order of deportation had yet been entered in his case, his
application was properly considered by an immigration lodge; his recourse thereafter
lay in an appeal to the Board, filed within 5 days of the date written notification of the
immigration judge's determination is served upon•the parties, and not in a request for
amelioration to a District Director. 8 C.F.R. 242.2(13).
ON BEHALF OF RESPONDENT: William F. Thompson, III, Esquire
LEZI Kapiolani Boulevard

Penthouse Suite
Honolulu. Hawaii 96814
By: Milhollan, Chairman; Maniatis, Maguire, Morris. and Vacca, Board Members

In a decision dated August 26, 1981, an immigrationjudge reduced
from $2,500 to $2,000 the amount of bond initially set by the District
Director but left in effect a condition of that bond which bars the respondent from engaging in unauthorized employment.' On October 6, 1981,
1

The immigration judge's decision was properly entered on Form I-342 and served on

171-

Interim Decision #2890
the respondent, who was released from Service custody on August 27,
1981, upon posting bond, filed a notice of appeal to the Board, seeking
further amelioration of the conditions of his custody status through
release on his own recognizance and cancellation of the "no work" rider.
The respondent is a 27-year-old native and citizen of Tonga who was
admitted to the United States in November 1980 as a nonimmigrant
visitor for pleasure. Ile admittedly remained longer than authorized and

at a deportation hearing conducted on September 16, 1981, was found
deportable as an overstayed nonimmigrant on the basis of his concessions.
The immigration judge granted the respondent voluntary departure to
January 16, 1982, with an alternative order of deportation to Tonga in
the event he fails to voluntarily depart by that date. The respondent
waived his right to an appeal from that decision.
On September 16, 1981, the day the immigration judge rendered his
decision on deportability, the respondent through counsel directed a
letter to the District Director requesting amelioration of the conditions
of the appearance bond outstanding against him. Two days later, the
District Director, noting that the iininigration

judge had already acted

on the respondent's bond redetermination request on August 26, 1981,
responded that any appeal from the immigration judge's determination
must be filed with the Board pursuant to 8 C.F.R. 242.2(b). The respondent thereupon sought a redetermination hearing before the immigra,
tion judge. In a decision dated September 25, 1981, the immigration
judge concluded that he lacked jurisdiction to consider the respondent's
request for a change in custody status, basing his conclusion on the
following provision within 8 C.F.R. 242.2(b):
. if the respondent has been released from custody, such application [for amelioration
of the conditions under which he may be released] must be made [to an immigration
judge) within seven

days after the date of such release. Thereafter, application by a
released respondent for modification of the terms of release may be made only to the
District Director.

As more than 7 days had elapsed since the respondent's release from
custody, the immigration judge determined that any request for modification of the terms of release must be made to the District Director with
direct appeal to the Board. We conclude that that immigration judge,
like the District Director, lacked authority to consider the respondent's

request for change in custody status made after his deportation hearing
but we do not adopt the rationale relied upon by the immigration judge.
In accordance with the procedures set forth in 8 C.F.R. 242.2, after
an initial determination with respect to custody has been made by the
the respondent and the Service as required by 8 C.F.R. 242.2(b), the regulation governing
the apprehension, custody and detention of aliens. It does not appear, however, that his
determination was accompanied by a memorandum setting forth the reasons for the

decision as required by the foregoing regulation.
172

Interim Decision #2890

District Director or other Service officer authorized to issue a warrant
of arrest, an alien may apply to the District Director or such other
designated officer for release or amelioration of the conditions of his
release. 8 C.F.R. 242.2(a). Once service of a warrant of arrest or determination of any application pertaining thereto has been made by the
District Director or specified Service officer, the alien may either apply
to an immigration judge for releake or modification of the terms of his

custody status or may appeal directly to the Board, depending upon the
circumstances of his case. 8 C.F.R. 242.2(a) and (b).
Application to an immigration judge is authorized after an initial determination has been made and at anytime before a deportation order
becomes administratively final. If, however, an alien is released from
custody, application for change in custody status must be made to the
immigration judge within 7 days from the date of release; thereafter,
such application can only be entertained by the District Director. 8
C.F.R. 242.2(b). Direct appeal to the Board from a determination of the
District Director or other designated officer is authorized only after a
deportation order becomes administratively final or where recourse to
the immigration judge is no longer available because of the expiration of
the 7-day period.2 8 C.F.R. 242.2(a) and (b).
The "7-day rule," then, is jurisdictional, describing a circumstance
under which the immigration judge is divested of power to adjudicate an
application for change in custody status. However, as the respondent in
the present case was still in detention on August 26, 1981, the date he
applied for a modification of the terms of his release, and as no final
administrative order of deportation had yet been entered in his case, his
'application was properly considered by the immigration judge who, as
noted earlier, did reduce the amount of bond initially set. Under the
regulations, the respondent's recourse thereafter lay in an appeal to the
Board from the immigration judge's determination and not, as the immigration judge indicated, in a request for amelioration to the District
Director with a right of appeal to the Board from that official's
determination.
The respondent's appeal to the Board, filed on October 6, 1981, is
jurisdictionally defective for lack of timeliness. Subsection (b) of 8 C.F.R.
242.2 requires that an appeal to the Board from a custody determination
by an immigration judge be filed within 5 days of the date written
notification of that determination is served upon the respondent and the
Service. The parties were duly notified of the immigration judge's decision on August 26, 1981.3 We have decided, however, to assume jurisdic2 No appeal, however, shall be allowed when the Service notifies the alien that it is
ready to execute the order of deportation and takes him into custody for that purpose. See
generally Matter of Tsoi, 14 I&N Dee. 205 (BIA 1972).
3 Our authority to review extends to the immigration judge's decision of August 26,

173

Interim Decision #2890
tion over the case by certification as provided in 8 C.F.R. 3.1(c). Turning to the merits of the case, the relief sought by the respondent will be
granted.
The respondent, who allegedly began working as a fisherman shortly
after his arrival in this country, is the beneficiary of an approved visa
petition, according him -sixth-preference status as a fisherman, with a
priority date of March 18, 1977. A visa number is currently available to

the respondent and counsel advises that the respondent's application for
an immigrant visa is presently being processed at the United States
Embassy in Suva. The respondent has a wife and two children in Tonga.
As a general rule, an alien should not be detained or required to post
bond in connection with deportation proceedings unless there is a finding that he is a threat to national security or a poor bail risk. See
generally Matter of Patel, 15 I&N Dec. 6 (BIA 1976). The Service does
not allege that the respondent poses a threat to the security of this
country and the record does not support a conclusion that bond is required
to prevent the respondent from absconding.
The respondent is now in the process of applying for an immigrant

visa at a United States Embassy abroad. There is no suggestion in the
record that he is inadmissible under any of the qualitative grounds for
exclusion enumerated in section 212(a) of the Immigration and Nationality Act, 8 U:S.C. 1182(a), or is otherwise not entitled to the visa. We
consider it highly unlikely that the respondent would jeopardize his
chances of gaining readmission to the United States as a permanent
resident by failing to depart under the grant of voluntary departure
accorded him, thereby rendering himself excludable under section
212(0(1'7) of the Act as an alien who has been deported. We conclude
that the imposition of bond is not warranted under the circumstances of
this case.'

We likewise conclude that the imposition of a nonemployment rider is
inappropriate in this case. In Matter of Toscano-Rivas, 14 I&N Dec. 523
BIA 1972 and 1973; A.G. 1974), the Attorney General, while finding
that the Service had the authority in a proper case to impose a bond
condition prohibiting unauthorized employment, expressed concern that
there be appropriate substantive safeguards with respect to the imposition of such _condition. Promulgation of 8 C.F.R. 102.6(a)(2), which,
inter olio, sets forth a number of factors to be considered in determining, whether a nonemployment rider ought to be imposed, followed in
mil, which addresses the merits of the respondent's application for change in custody
status and not, as counsel suggests in the notice of appeal, to the immigration judge's
September 25, 1981, decision disclaiming•his own jurisdiction over the matter. 8 C.F.R.
242.20).
4 We do not believe the only relevant adverse matter reflected in the record file, the
respondent's failure to depart under a pre hearing grant of voluntary departure, provides
a sufficient basis for imposing bond considering the record as a whole.
-

174

Interim Decision #2890
response to the Attorney General's opinion_ A principal concern, manifest in the regulation, is the impact of the alien's employment upon the
American labor market. See 8 C.F.R. 103.6(a)(2)(i). See generally Matter of Leon-Perez, 15 I&N Dec. 239 (BIA 1975).
That concern appears unfounded in the respondent's case. In issuing
the respondent a labor certification, a precondition to the filing of his
sixth preference visa petition (see 8 C.F.R. 204.1(c)(1)), the Secretary
-

of Labor specifically determined that his employment is not detriinental
to the United States labor market. We are satisfied that the imposition
of a nonemployment rider is not otherwise justified on the facts of this
case. The bond condition against unauthorized employment imposed by
the District Director and left in effect by the immigration judge will
accordingly be cancelled.
ORDER The immigration judge's custody determination is reversed.
FURTHER ORDER The respondent's request for release on
his own recognizance is granted.
FURTHER ORDER: The bond condition against unauthorized
.employment is cancelled.


MATTER or L

D

E

In DEPORTATION Proceedings
A-1105616I
!Melded by Board dime 29, 1959
Good moral character — Section 101(0(6) of 1952 act — False statements in
application are not "testimony_"
False statements in application for United States passport (whether or not
under oath) do not constitute false "testimony" within meaning of section
101(f) (6) of 1952 act. "Testimony" is construed as referring solely to oral
utterances or oral evidence. (Overrules Matter of 2 , 5 I. & N. Dec
514; modifies Matter of 0—, 7 I. & N. Dec. 480.)
CHARGE :

Order: Act of 1952—Section 241(a) (1) t8 U.S.C. 125 a) (1)1—Excludable
at entry under 8 U.S.C. 213(a), 1946 ed. — No immigration visa.

BEFORE THE BOARD

Discussion : This case is before us on appeal from a decision of

a special inquiry officer directing the respondent's deportation.
The respondent is a 39-year-old married male, native and citizen
of China, who last entered the United Slates in October 1941, at
which time he secured admission on his fraudulent claim that he
was a citizen of this country. He claims residence in the United
States since 1935. The respondent concedes that he is deportable,
and the only issue in this case relates to the special inquiry officer's
conclusion that. the respondent is statutorily ineligible for suspension
of deportation.
The respondent secured admission to this country in 1935 by claimF
, the son of C
A
K
a nativeing that he was C
born citizen. Actually, the respondent's name is L
K
A
; and he has never been a citihe is not the son of C
zen of the United States. He secured readmission in 1941 by continuing the deception. On December 2S, 1956, the respondent executed an application for a United States passport ill which he slated
that his name was C F and that, he was a citizen of the
United States by birth in China to a citizen father.
The special inquiry officer's conclusion that the respondent was
statutorily ineligible for suspension of deportation was predicated
on the view that section 101(f) (6) of the Immigration and Nationality Act [66 Stat. 166; 5 U.S.C. 1101(f) (6)] precludes a finding
,

399

of good moral character because of the false statement in the 1956
application for United States passport. Section 101(f) (6) bars a
finding of good moral character in the respondent's case if, subsequent to 1952, he is or was "one who has given false testimony for
the purpose of obtaining any benefits under this act * * *."
The respondent testified that after he made the applidation for a

passport. in 1956 be was requested to appear for an interview at. the
passport office in New York City, but did not, do so and never received a United States passport. Counsel apparently contends that
the respondent is not within the purview of S U.S.C. 1101 (f)(6)
because he did not actually procure a passport. We reject this contention, however, since it is not a requirement of the statute that
any benefit be secured but only that the false testimony shall have
been given for the purpose of obtaining a, benefit.
We consider that the important question in this case is whether
the respondent's false statement in the passport application is "testimony" within the meaning of 8 U.S.C. 1101(f) (6). In this connection, two recent court decisions must be examined—Orlando v. Robinson, 262 F.2d 850 (C.A. 7, 1959), cert. denied 359 U.S. 980 (1959),
and Sharaihu v. Hoy, 169 F. Stipp. 598 (S.D. Cal., 1959).
Some of the facts in Orlando v. Robinson, supra, are not clear
from that, opinion and we have examined the special inquiry officer's
decision of August 30, 1955. concerning Orlando and our decisions
of January 6. 1956, and August 7, 1958, in that case (file A4177580).
The Court of Appeals said that Orlando made false statements in
an application for registry on July 15, 1947, and in a petition for
naturalization on July 12, 1948 (actually, the 1918 false statement
was in a preliminary form for petition for naturalization which was
not sworn to until September 21, 1948), and that on JUly 12, 1948,

he "gave false testimony for the purpose of obtaining citia-eitship."
There was no discussion by the court as to whether the application
and petition (preliminary form) were under oath nor whether a
false statement is "testimony," although the court assumed in its
opinion that Orlando gave, false testimony on July 12, 1948.
Orlando was required to prove good moral character for ten years
prior to May 24, 1955, and 8 U.S.C. 1101(f) (6) would preclude a
finding that he was a person of good moral character if during the
ten-year-period he is or was one who had given false testimony for
the purpose of obtaining any benefits wader the Immigration and
Nationality Act. That act became effective on December 24, 1952,
and it would seem that the false statements which Orlando made in
1947 and 1948 could hardly be considered as having been made for
the purpose of obtaining a benefit under the Immigration and
Nationality Act which was not enacted until 1952.
The decision of the special inquiry officer and the two decisions

of this Board concerning Orland() did not refer to any false testi400

moray

given by hint but only m the false s(a rnrciiLs made

in

die 147

and 1948 forms and in his alien registration form in 1940. There

was no statement in these three decisions that a finding of good
moral character was precluded by virtue of S U.S.C. 1101(f) (6), but
the decisions were predicated on a conclusion that Orlando had not
affirmatively established good moral character during the ten-yearperiod.
Although the court in the Orlando case stated that the act committed by him on July 12, 1948, made him then a person not of good
moral character, there was no definite statement that Orlando's action
on July 12, 1948, precluded him from establishing good moral character by reason of the provisions of 8 U.S.C. 1101(f) (6). However,
there is some language in the opinion which indicates that this may
have been the view of the court. Nevertheless, the opinion in its
entirety shows that the court did not rely on 8 U.S.C. 1101(f) (6)
but held that Orlando was not a person of good moral character
because he made false. statenmIlts in his 194-7 and 1948 applications;

the final conclusion was that he not only failed to sustain the burden
of proving good moral character for ten years, but that the evidence
conclusively showed that he was not a person of good moral character during that period.
There is nothing in the Orlando opinion which would indicate
that the Government urged that 8 U.S.C. 1101(f) (6) precluded a
finding of good moral character in his case. There is a statement
on page 851 of the court's opinion reading, "* * * Orlando argues
that the applicant has to be a special kind of a prevaricator in order
to be ineligible for suspension of deportation as defined by 8 U.S.C.A.
§ 1101(f) * *." We assume that counsel for Orlando was urging
that he did not come within any of the eight numbered paragraphs
of S U.S.C. 1101(f) and that, therefore, a finding of good moral
character should be made. That argument, of course, ignores the
last sentence of the statutory provision which provides otherwise.
It appears to have been due only to this contention of counsel that
8 U.S.C. 1101(f) (6) was considered by the court; although, as we
have indicated above, it was actually inapplicable to Orlando's case.
Since the question involved in this respondent's case is whether a
false statement in an application is false testim-ony within the meaning of 8 U.S.C. 1101(f) (6) and since that question was not even
discussed in °Timid o, that case has no relevance to that of this
respondent.
With respect to Sh,tivih-a v. Hoy. supra, the special inquiry officer
had held there that the alien was ineligible for voluntary departure
on the ground that he had given false testimony for the purpose of
obtaining a benefit under the immigration and Nationality Act.
On August 22, 106, lie had executed under oath an application for
401

extension of his temporary stay as a student, which application contained a false statement to the effect that he was a student in good
standing at the University of Southern California. The court held
that this did not constitute "testimony" within the meaning of S
U.S.C. 1101(f) (6) because "the word testimony, technically construed, refers solely to the oral utterances of witnes.9es Midor oath,
* * *." In Ensign v. Pennsylvania, 227 U.S. 592, 599 (1913), it was
said, "The word 'testimony' more properly refers to oral evidence."
The decision in Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), was
predicated on the proposition that, where the words of a deportation
statute are susceptible of more than one meaning, the doubt should
be resolved in favor of the alien.
Upon careful reconsideration of the question and in the light of
the judicial authorities mentioned in the preceding paragraph, we
have concluded that false statements which appear in an application,
whether or not under oath, do not constitute testimony within the

meaning of 8 U.S.C. 1101(f) (6). Since this is contrary to the conclusion reached in Matter of Z , 5 I. & N. Dec. 514 (1953), that
decision is overruled.
The special inquiry officer cited Matter of 0
, 7 I. & N. Dec.
486 (1957), as a basis for his conclusion that the respondent was precluded from establishing good moral character under 8 U.S.C. 1101
(f) (6). In the cited case, we concluded that the alien gave false
testimony within the meaning of that statutory provision because
of false statements in an application. She denied that she was sworn
to the application. We said that, even if her conduct did not render
her statutorily ineligible for voluntary departure, that relief should
be denied as a matter of discretion because of the deception which
she had practiced on the Service. That decision is hereby modified

insofar as it may be inconsistent with this opinion.
In view of the foregoing, we conclude that the false statement
made by this respondent in his application for a United States passport on December 28, 1956, did not constitute "testimony" within
the meaning of 8 U.S.C. 1101(f) (6), and that the question of
whether a finding of good moral character should or should not be
made in view of the false statement must be determined in accordance with the last sentence of 8 U.S.C. 1101(f) rather than under
subparagraph (6). Since it was solely on the basis of 8 U.S.C.
1101(f) (6) that the special inquiry officer held that discretionary
relief could not be granted, we will remand the case to him for
further consideration of the application for suspension of deportation.
Order: It is ordered that the outstanding order of deportation be
withdrawn and that the case be remanded to the special inquiry
officer for further consideration of the application for suspension
of deportation.
402