Interim Decision X1385

MATTER OF

R—R--

Application for Section 212(h) Waiver
A-13452189
Decided by OnicCr in.Oh,airge October R3, 1963
Section 212(h) waiver of inadmissibility under section 212(a) (19), Immigration
and Nationality Act, as amended, Is granted to applicant who has evidenced
complete reformation and rehabilitation since his misrepresentations in securing e.border-crossing card In 1960; whose exclusion wouia result in serious,
hardship to his dependent citizen wife and child, and whose admission would
not be contrary to the welfare, safety or security of the United States.

-The applicant is -a male, native and citizen of Mexico, born on
March 1, 1940.. He was married in Chicago, Illinois on May 25, 1963to a native-born citizen of the United States.
This is the -first marriage for both the applicant and his spouse.
They are parents of one child who was born on September 20, 1962
in Chicago, Illinois. This child is living with the applicant's wife.
in Chicago.
The applicant has been in the United States on one prior occasion
and was found by the •Consular Officer to be eligible for a visa for
permanent residence in all respects except for excludability under
section 212(a) (19) of the Immigration and Nationality Act.
In testimony before an Officer of this Service on August 13, 1963,
in Mexico, D.F., Meiico, the applicant testified that he secured a nonresident alien border crossing identification can" by making false
statements concerning his intentions- with regard to employment in
the United States. He testified that in connection with his application
for the card he stated he did not intend to work in the United States
in order to conceal his real intention of engaging in employment
at the first opportunity.

Tie stated that he entered the United States

at Laredo, Texas on February 20, 1960 with a non-immigrant border
crossing card and went directly to Chicago, Illinois and obtained
employment.

The applicant testified that he had never committed any other act
696

Interim Decision #1385
or offense which might render him inadmissible to the United States
or subject him to criminal prosecution.
The applicant testified that he first met his wife in 1960 and had
gone steadily with her until their marriage on May 25, 1963. He stated
that he had supported his wife and child since his marriage and would
assume complete obligation for their support if he were granted a
waiver of excludability.
The applicant stated that he was employed while in Chicago, Illinois for an athletic goods manufacturing concern earning $2.90 per
hour and that he will be rehired by this firm if he is allowed to return
to the United States as a permanent resident. He testified that he
and his wife had no real property but that they had completely paid
for household goods valued at $1200.00. He stated that he had
left his wife sufficient funds to live on while he was out of the United
States arranging for his legal entry.
Applicant's wife was interviewed by a Service officer on September 4,
1963 at Chicago, Illinois and corroborated his statements relative to
their marital history. She stated that she was aware that her husband
entered the United States illegally but that it made no difference to
her and that it was her desire that he be allowed to join her in the
United States as a permanent resident. She stated that the applicant
had left her some money to live on while he was in Mexico but that
it was now exhausted and she had been forced to move in with
her sister. She testified that she could not accept employment because
her child was so young and she had to remain home to care for him.

She stated that if her husband was refused an immigrant visa it

would create a serious economic hardship for her and her United
States citizen child. She testified that to the best of her knowledge,

the applicant has never committed any other act or offense which
might render him inadmissible to the United States.
Records of other investigative agencies were checked regarding the
applicant and his spouse with negative results. A neighborhood investigation conducted by an officer of this Service was favorable to the
grant of a waiver of excludability.
The misrepresentation which presently bars the applicant from admission to the United States was committed in February 1960. He
has a clear record since that date and there is evidence that his complete reformation and rehabilitation have been accomplished. There
is no evidence to indicate that his admission to the United States
would be contrary to the national welfare, safety or security. It has
been satisfactorily established that his exclusion from the United
States would result in serious hardship for his citizen wife and child.
697

Interim Decision #1885
ORDER: It is ordered that the application for waiver of excludability under section 212(a) (19) of the Immigration and Nationality
Act, be and is hereby granted pursuant to the authority contained in
section 212(h) of the Immigration and Nationality Act, Provided,
That the waiver shall apply only to the grounds for exclusion described
herein.

698 •


Interim Decision #1399

MATTER OF PRIETO-PEREZ

In EXCLUSION Proceedings
A-13013535

Decided by Board October 16,1964
A dual national of the United States and Mexico who, upon petition to the city
government of Agua Prieta, Sonora, Mexico, in which he described himself
as a Mexican, acquired title to property located in a border area in Mexico
in which property ownership is limited to Mexican nationals did thereby voluntarily seek or claim the benefits of Mexican nationality within the meaning
of section 350, Immigration and Nationality Act.
Exoturaam: Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20) 3—
Immigrant without visa or passport.

The special inquiry officer found that the applicant was excludable
upon the ground stated above and certified the case to the Board for
final decision. Proceedings will be reopened.
The applicant, a 53-year-old single male born in the United States of
America, became at birth a citizen of the United States and of Mexico.

The Service contends that he lost United States citizenship by acquiring ownership of land in the city of Agua Prieta, Mexico, on
November 24, 1959, and by continuing his ownership to the present
time. The applicant's property is located in the border area in a zone
where Mexican law limits ownership to Mexican nationals and prohibits it to non-Mexican nationals. The Service relies on section 350
of the Act (8 U.S.C.. 1482 (1958) ) which provides for the loss of
United States nationality by a dual national who voluntarily sought
or claimed the benefits of his foreign nationality.
Applicant's home has been in Mexico since he was taken there when
about 3 years of age; he has been working in the United States since
1946.
On July 2, 1944, the applicant applied to the officers of the communal

farm in Ague. Prieta, Sonora, Mexico, for possession of a lot in the
urban zone; possession, but not title, was awarded to him on September
30, 1944 (certificate of possession attached to Exhibit 15) ; on November 2, 1952, the applicant applied for title to the lot; in his application
740

Interim Decision #1399
lie described himself as a Mexican (Ex. 14). Title was awarded to
him by the city government on November 24, 1952; the award was
made under the authority of "Law Number 25 of July 16, 1892, of the
State, and Decree Number 43 of the State Government" (Ex. 15) .
The applicant testified that during the lifetime of his father, the
family lived on a ranch; that his father had always wanted to establish
a home for the mother in the city; that in 1944 his father died; that
the applicant and his mother moved to the town of Ague, Prieta,
Sonora, and using money his father had earmarked to provide a home,
he (applicant) acquired land and built a. house; and that he and his
mother (she died in 1963) lived in it.
The special inquiry officer found the applicant had become expatriated because ownership of the land after December 24, 1952, the effective date of section 350 of the Act, constituted a continuing claim to
the benefits of Mexican nationality. Counsel contends expatriation
did not occur.
Counsel's contention that the burden of proof was placed upon the
applicant is not justified by the record. The burden of establishing
that the applicant lost United States citizenship is upon the Service;

the Service can carry its burden by coming forward with a preponderance of the evidence showing that the loss occurred ; the previous standard requiring clear and convincing proof—a standard which counsel
believes should apply here, was supplanted by section 349 (c) of the
Act (8 U.S.C. 1481(c) (Supp. IV) ).
Counsel points out that applicant acquired his land before December
24, 1952, when section 350 of the Act went into effect; he contends it
would be unconstitutional to take away the applicant's United States
citizenship for an act committed before the adoption of section 350.
The contention must be rejected. When ownership of land by dual

national occurred before December 24, 1952, and the ownership was
the result of a claim to Mexican nationality, we hold that expatriation
occurs if the owner failed within the 3 years after December 24, 1952,
to use the means provided by Congress (abandonment of Mexican
residence) to avoid loss of citizenship (Matter of Samohez-Mortreal,
Int. Dec. No. 1361; Matter of V—, 7 I. & N. Dec. 218; Matter of
G—Q—, 7 I. & N. Dee. 195). We do not believe that our view constitutes an ex poet facto application of the law because Congress did
afford the individual concerned a. period of 3 years after the effective
date of the Act within which he could have preserved his United
States nationality.
Counsel contends that the savings clause (section 405(a) of the Act,
8 U.S.C. 1101 n. (1958) ) prohibits application of section 350 to the
instant case. The savings clause does not apply, in our opinion, because it was applicant's conduct arising after the effective date of the
741

Interim Decision 4t1399
Act (failure to abandon Mexican residence) which resulted in loss of
United States citizenship. Moreover, there having been no statute
governing the right to accept benefits of foreign nationality prior to
December 24, 1952, under which applicant could have acquired a status,
we fail to see how a savings clause which merely continued in effect
statutes otherwise repealed by the Act of 1952, could apply to the
applicant.
Counsel contends that applicant did not lose United States citizenship because in taking title he acted as a trustee for his mother. The
record does not establish this claim; moreover, if taking as trustee
ican nationality, it
required the taker to claim the benefits of Mex
appears to us, loss would result under section 350 of the Act.
It is conceded that the land owned by the applicant lies in the
area where non-Mexican nationals are prohibited. from owning land;
counsel however contends that non-Mexican nationals nevertheless do
acquire land in the prohibited area despite the constitutional pro
hibition. Counsel offered no evidence to support his contention.
Even if the situation described by counsel existed, the question determinative of the issue in any case is whether the dual national involved
made use of his Mexican nationality to Obtain the right to own the
land; this fact must be proved in each case.
Counsel contends that the record fails to establish that the applicant intended to divest himself of United States citizenship. The
intent of the applicant in this regard is not material. The act causes
expatriation to occur, upon proof that the benefit of foreign nationality was voluntarily claimed. Intention is not an element.
The question then before us is whether the record establishes by
a preponderance of the evidence that the applicant "voluntarily sought
or claimed benefits" of Mexican nationality. On such a question, carrying with it the grave consequence of expatriation, mere proof of
ownership of land in an area where ownership is restricted to Mexican
nationals does not constitute substantial evidence that a claim to Mexican nationality was in fact made in a particular case. Some proof
that the claim was made must be advanced (Matter of Sane/Lea-Manreal, .supra). We think that such evidence is found here in the fact
that the applicant's petition addressed to the city government requesting that title be assigned to him described Aim as a Mexican (Ex. 14).
The combination of the two factors—the legal requirement that the
owner be a Mexican national, and the fact that the person seeking
ownership asserted that he is a Mexican national, establishes in the
absence of evidence to the contrary that a claim to Mexican nationality
was made.
We shall reopen the proceedings because this is an expatriation case
and the record fails to show what considerations in making the grant
.

742

Interim Decision #1399
the city government was required to observe under "Law Number 25
of July 16, 1892, and the Deeree Number
(Ex. 15).

a of the State Government"

Counsel objects to the consideration of a prehearing statement made
by the applicant. We do not find counsel's objection valid; however,
we shall not discuss it since we have not considered the statement in
any manner adverse to the applicant.
ORDER : It is ordered that proceedings be reopened for such further action as the special inquiry officer may deem appropriate, and
which is not inconsistent with what we have stated above.
It is further ordered that the order of the special inquiry officer be
certified to the Board.

7

743


Interim Decision #2278

MATTER OF JALIAWALA

In Deportation Proceedings
A-20650284

Decided by Board April 12, 1974
Where the respondent in deportation proceedings fails to appear at a hearing
reopened at his request and for his benefit, whether or not to grant a
continuance rests within the discretion of the immigration judge. Where, as in
the instant case, deportation proceedings were reopened upon request of
respondent to permit him to apply for section 245 adjustment of status; his
wife failed to appear with him at the reopened hearing, as requested; the
hearing was rescheduled at which time they both failed to appear and
respondent's attorney was unable to offer any reason or explanation as to
their failure Lo appear, there was no abuse of discretion by the immigration
judge in denying respondent's application for lack of prosecution.
CHARGE:
Order: Act of 1952—Section 241(aX9) [8 U.S.C. 1251(a)(9)]—Non-immigrantFailed to comply with conditions under which admitted.

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:
Peter R. Scalise, Esquire
134 North LaSalle Street

Irving A. Appleman
Appellate Trial Attorney

Chicago, Illinois 60602

This is an untimely appeal from an order of an immigration
judge denying respondent's application for adjustment of status
under section 245 of the Immigration and Nationality Act and
reinstating the privilege of voluntary departure. The appeal will
be dismissed for lack of jurisdiction as untimely.
Respondent is a 22-year-old married male alien, a native and
citizen of Pakistan, who was admitted to the United States on or
about August 19, 1970 as a nonimmigrant student. On August 14,
1973, after a hearing before an immigration judge at which he was
represented by other counsel, he was found to be deportable for
failure to comply with the conditions of his admission and was
granted the privilege of voluntary departure. Appeal was waived
and the immigration judge's order became final.
664

Interim Decision #2278
On November 14, 1973, on respondent's unopposed motion, the
immigration judge ordered the proceedings reopened in order that
respondent might apply for adjustment of status under section 245
of the Act, on the basis of an approved immediate relative visa
petition filed in his behalf by his United States citizen wife. A
reopened hearing was scheduled for February 11, 1974 and respondent was notified and requested to bring his wife with him.
He did not bring his wife and the hearing was rescheduled for
February 22, 1974. At that time, respondent's attorney appeared,
but neither respondent nor his wife showed up. Respondent's
attorney was unable to give any reason for the failure to appear.
The immigration judge entered an order denying the section 245
application for lack of prosecution and reinstating the voluntary
departure privilege. A notice of appeal from that order was filed by
present counsel on March 15, 1974. The notice of appeal is clearly
untimely, 8 CFR 24221.
We have carefully examined the record to see if there is any
reason why we should take this case on certification under 8 CFR
3.1(c). We find none. No brief on appeal has been filed. No reason is
given to explain why the appeal is untimely. The notice of appeal
asserts merely that the immigration judge's order was harsh and

constituted an abuse of discretion because it failed to afford the
respondent an opportunity to explain why he could not be present
at the reopened hearing Even now, on this attempted appeal, no

effort is made to present any good reason or even any explanation
why the respondent failed to appear.
When a respondent fails thus to appear at a hearing reopened at
his request and for his benefit, whether or not to grant a continuance rests within the sound discretion of the immigration judge.
On this record, we cannot say that the immigration judge abused
his discretion in denying the section 245 applicatiOn for failure to

prosecute. We do not regard his action as harsh. Quite the
contrary, it seems to us that he was quite generous, under the
circumstances, in reinstating the privilege of voluntary departure
at all.
ORDER: The appeal is dismissed for lack of jurisdiction as
untimely.

665


Interim Decision #1884

MATTER OF HANNA

In Visa Petition Proceedings
A-18187446
Decided by District Director March. 6, 1968
A ceramic engineer, who bas a baccalaureate degree in ceramic engineering,

is a qualified member of the professions within the meaning of section 101(0(32) of the Immigration and Nationality Act, as amended, and is eligible
for preference classification under section 203(a) (8) of the Act.

The petition was filed by the beneficiary for third preference classification as a member of the professions based upon his qualifications as
a ceramic engineer.
He is married, a native and citizen of the United Arab Republic,
presently residing with his spouse and two children in Cairo. In 1962,
following a five-year course, he was graduated with a baccalaureate
degree in ceramic engineering, from the College of Applied Arts,
Giza United Arab Republic; and he has completed a five-month training program in the mass production of porcelain, in Germany. He
was employed from December 1962 to February 1964 as supervisor
of production by Mostorod Ceramic and Porcelain Company, Cairo ;
and as quality controller from March 1964 to date by the Cairo Sand
Bricks and Tile Company, Cairo.
Section 203(a) (3) of the Act, as amended, relates to issuance of
immigrant visas "to qualified immigrants who are members of the
professions, or who because of their exceptional ability in the sciences
or arts will substantially benefit prospectively the national economy,
cultural interests, or welfare of the United States." The term "profession" is defined in section 101 (a) (32) of the Act as including but not
being limited to architects, engineers, lawyers, physicians, surgeons,
and teachers in elementary schools, colleges, academies, or seminaries.
The Occupational Outlook Handbook, 1966-67 edition, published by
the Bureau of Labor Statistics, United States Department of Labor
contains on page '76 a discussion of the employment of ceramic engineers. In discussing the nature, training and qualifications for this
work, the handbook includes the following statements:

798

Interim Decision #1881
Ceramic engineers develop methods for processing clay, silicates, and other
nonmetallic minerals into a wide variety of ceramic products, ranging from
glassware, cement, and bricks, to coatings and refractories for missile nose cones.
They may also design and supervise the construction of the plant and equipment

used in the manufacture of these products.
The outlook is for rapid growth in the employment of ceramic engineers through
the mid-1970's. Although ceramic engineering is a small field and the number of
openings in any one year will be small compared with those in the large branches
of engineering, the number of graduates with degrees in ceramic engineering is

also small. Thus, the opportunities for new graduates should be excellent. The
growth of programs related to nuclear energy, electronics, and apace exploration
will provide many of the opportunities for ceramic engineers.
A bachelor's degree in ceramic engineering is the generally accepted educational requirement for entrance into such engineering positions.

Section 212(a) (14) of the Immigration and Nationality Act, as
amended, provides that third preference aliens must be issued a certification by the Secretary of Labor to the effect that qualified workers
in the United States are unavailable, and that the alien's employment
would not have an adverse effect on wages and working conditions of
workers similarly employed in this country. Under 8 CFR 204.2(f)
the Secretary of Labor's determination with respect to the issuance of
the required certification is obtained before any third preference petition may be approved: The required certification was issued in the

instant case as a ceramic engineer, under Schedule C, Group II, 29
CFR, indicating that in the Department of Labor's opinion the beneficiary qualified as a professional person in the filed of ceramic
engineering.
Since a baccalaureate degree is the accepted educational requirement
for entry into the field, and in view of the above discussion, it is concluded that ceramic engineering as with other occupations in the engineering field, should be considered a professional-level occupation.
The record reflects that the beneficiary has a baccalaureate degree in
ceramic engineering, and that he has had more than 5 years of experience in that field. We, therefore, concur in the opinion of the Department of Labor concerning his qualification for classification as a professional person under section 208 (a) (8) of the Act.
ORDER: It is ordered that the petition to accord the beneficiary
third preference classification be and hereby is approved.

799


Interim Decision #2900

MATTER OF LIN

In Exclusion Proceedings
A-24396'728
Decided by Board May 6, 1982
(1) An alien who absconds from an Immigration and Naturalization Service detention
facility while awaiting exclusion proceedings does not make an entry into the United
States as defined in section 101(a)(13) of the Immigration and Nationality Act, 8 U.S.C.
1101(a)(1S), and, therefore, was properly placed in exclusion proceedings: Matter of A ,
9 I&N Iy ec. 356 (BIA 1961); and Matter of A-T-, 3 I&N Dec. 178 (BIA 1948), distinguished.
(2) An ahem who escapes from Service detention does not acquire the same status as
an alien who evades Service inspection by entering the United States surreptitiously
and, hence, may not be accorded the procedural benefits of deportation proceedings.
-

EXCLUDABLE:
Order: Act of 1952—Sec. 212(a)(19) (8
1182(a)(19))—Sought entry by fraud or
material misrepresentation
Sec. 212(a)(20) i8 TJ.S.C. 1182(aX20)}— Not in possession of a valid
unexpired visa or other valid entry document
ON BEHALF OF SERVICE:

ON BEHALF OF APPLICANT:
Stephen singer, Esquire
• Barst & lfulcamal
127 John Street
New York, New York 10038

Steven R. Abrams
General Attorney
Gerald S. Hurwitz
Appellate Trial Attorney

BIr; Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

This case was last before no on October 6, 1981, when we dismissed

a

Service appeal from the immigration judge's termination of the exclusion proceedings against the applicant. We agreed with his conclusion
that the applicant had entered the United States without inspection and
was therefore, subject to deportation proceedings instead of exclusion
proceedings. The Service has submitted a motion to reconsider our
October 16, 1981, decision on this case. The Service motion to reconsider
will be granted and the appeal will be sustained.
The applicant is a native and citizen of China who applied for admission to the United States as a nonimmigrant visitor for pleasure on
219

Interim Decision #2900
August 22, 1980. At the inspection, he was in possession of a passport
which he had purchased in Hong Kong and which bore the name of
another person. He was detained by the Service and placed in exclusion
proceedings because of alleged excludability under sections 212(a)(19)
and 212(a)(20) of .the Immigration and Nationality Act, 8 U.S.C.
1182(a.)(19) and 1182(a)(20), for attempting entry by fraud or material
misrepresentation and lacking a valid immigrant visa. However, prior
to the exclusion hearing he absconded from the Service detention facility in St. Paul, Minnesota, until apprehended two days later on September 6, 1980, in New York City. Consequently, the immigration judge
. terminated the exclusion proceedings, concluding that the applicant had
made an "entry" into the United States.
Our October 6, 1981, decision applied a four element test prescribed
in Matter of Pierre, 14 I&N Dec. 467 (BIA 1973), for determining when
an alien has made an "entry" into the United States and is therefore
subject to deportation and not exclusion proceedings. We then stated
that the term "entry'," is defined in section 101(a)(13) of the Art, 8

U.S.C. 1101(a)(13), as ". . . any coming of an alien into the United States,
from a foreign port or place or from an outlying possession. . . ." A
survey of the many eases which have treated this subject over the years
leads to the following conclusions. An "entry involves (1) a crossing into
the territorial limits of the United States, i.e. physical presence; plus . '
(2) inspection and admission by an immigration officer, United States v.
Vasilatos, 209 F.2d 195 (3 Cir. 1954); Lazarescu v. United States, 199
F.2d 898, 900 (4 Cir. 1952); or (3) actual and intentional evasion of
inspection at the nearest inspection point, U.S. ex rel. Giacone v. Corsi,

64 F.2d 18 (2 Cir. 1933); Morini v. United States, 221 F.2d 1004 (9 Cir.
1927), cert. denied, 276 U.S. 623 (1928); Low Moy v. United States, 237

Fed. 50, 52 (8 Cir. 1916); Matter of Estrada-Betan,caurt, 12 I&N Dec.
191, 193-4 (BIA 1967); coupled with (4) freedom from restraint, United
States v. Vasilatos, supra; Lazarescu v. United States, supra.
The applicant physically crossed the United States border at St. Paul

-

where he was detained. He later reached New York City by absconding
for two days from a Service detention facility. In Matter of A-, 9 I&N
Dec. 356 (BIA 1961), and Matter co f A-T-, 3 I&N Dee. 178 MIA 1948),
we had concluded that escaping from Service detention while awaiting
exclusion proceedings constituted an entry which required deportation
proceedings instead. We reached the same conclusion in this case applying the Pierre test. We concluded that when the applicant absconded, he
temporarily achieved freedom from Service restraint, and had made an
entry into this country since he was already physically present here. We
distinguished two cases cited by the Service in support of its position
because there the aliens in question had been paroled into the United
States. See Vitale v. INS, 463 F.2d 579 (7 Cir. 1972); Klapholz v.
220

Interim Decision #2900
Esperdy, 201 F.Supp. 294 (S.D.N.Y. 19611, aff 'd, 302F.2d 928 (2 Cir.

1962).
However, in its motion to reconsider, the Service has submitted additional arguments which we find convincing. The Service initially contends that the test prescribed in Matter of ierre, supra, is not met here
because the applicant did not evade inspection but rather, was inspected
and detained pending exclusion proceedings pursuant to section 235 and
236 of the Act, 8 U.S.C. 1225 and 1226. He.was served with a Notice to
Alien Detained for Hearing by an Immigration Judge (Form 1-122) as
prescribed by 8 C.F.R. 235.6(a).
The Service also directs our attention.to the case of Lak v. Rosenberg,
409 F:2d 5 (9 Cir. 1969), where an alien had been found excludable,
paioled into this country and had absconded for three years. After he
was located, his parole was revoked. The court concluded that the alien
did not make an "entry" when his parole was revoked, despite his managing to remain for several years after the parole revocation. Congress
did not intend to improve such an alien's status, from that of an applicant Seeking admission, to that of an alien who has entered the United
States and is subject only to deportation proceedings in.order to be
removed from this country. Luck v. Rosenberg, supra at 558. 1
The Service also points out -distinguishing factors in the two cases we
previously cited in support of our October 6, 1981, decision, Matter of
A-, supra; and Matter of A-T-, supra. In Matter of A-T-, the applicant
had been notified of an exclusion hearing when he first applied for entry.
He returned later that day,

applied again for entry and was admitted.

Consequently, there had been two separate applications for entry and
his successful second attempt clearly constituted an "entry" since he had
been admitted into this country. In Matter of A , the alien had been
'detained on board a ship as a stowaway pursuant to section 273(d) of the
Act, 8 U. S.C. 1323(d). When he escaped and managed to land, his status
was similar to that of any alien who surreptitiously crosses our border
and enters the United States without inspection.
It is well settled that when an alien is paroled into the United States
pursuant to section 212(d)(5) of the Act, 8 U.S.C. 1182(d)(5), and 8
C.F.R. 212.5, pending exclusion proceedings in accordance with sections 235 and 236 of the Act and 8 C.F.R. 235 and 236, he does not gain
the additional protections prescribed for deportation proceedings. Lung
May Ma. v. Barber, 357 U.S. 185 (1958); Rogers v. ChM., 357 U.S. 193
(1958); United States ex rel. Sellas v. Esperdy, 366 F.2d 266 (2 Cir.
1966); United.States ex rel. Lam Hai Cheung, 345 F.2d 989 (2 Cir.
-

1 A n alien in deportation proceedings has avenues of relief from expulsion unavailable in
exclusion proceedings, e.g.. suspension of deportation and voluntary departure pursuant to
section 244 of the Act, 8 U.S. C. 1254. He also can request a bond redetermination hearing
with a right to appeal to this Board pursuant to 8 C.F.R: 242.2(b).

221

Interim Decision #2900
1965); Wong Hing Fun v. Esperdy, 335 656 (2 Cir. 1964); Wong Hing
Goon v. Brownell, 264 F.2d 52 (9 Cir. 1959); Lima-Gomez v. Pilliod,.
193 F.Supp. 577, 579-580 (N.D. III. 1960); United States as rel. Tom We
Shung v. Murff, 176 F.Supp. 253, 256 (S.D.N.Y. 1959); In re Milanovic's
Petition, 162 F.Supp. 890, 894 (S.D.N.Y. 1957), affd 253 F.2d 941 (2
Cir. 1958); and Luk v. Rosenberg, supra.
We reach the same result when, instead of being paroled, the alien is
placed in detention within the United States territory, pursuant to 8
C.F.R. 233.1 and 235.3 and manages to abscond from detention while
awaiting his exclusion hearing. The service of the Form 1-122 after
inspection, vests upon the immigration judge the authority to conduct

the exclusion proceedings in order to determine the applicant's admis' sibility. Whether the applidant is then paroled into the United States or
instead kept in detention at a Service facility is not determinative. His
escaping from Service detention does not place him in the same status as
an alien who manages to evade inspection by entering the United States
surreptitiously. He has been inspected but not admitted. We therefore,
do not choose to extend our decision in Matter of A- to aliens physically
in this country, who are detained pending exclusion proceedings, and
who manage to escape from detention. The motion to reconsider will be
granted, the Service appeal will be sustained, and the record remanded

to the immigration judge for resumption of the exclusion proceedings. It
is so ordered.

ORDER: The motion to reconsider is granted and the appeal is
sustained.

FURTHER ORDER: The record is remanded to the immigration judge for further proceedings consistent with the foregoing opinion
and the entry of a new decision_


Interim Decision #2282

MATTER OF GAGLIOTI
In Section 245 Proceedings

A-18597420
Decided by Regional Commissioner

May 1, .1974

Applicant, a deaf mute, is not for that reason alone considered to be physically
incapable of reading so as to come within the literacy requirement exemption
of section 212(a)(25) of the Immigration and Nationality Act. Since he is
unable to read any language and is not within any of the other classes of
aliens exempt under the Act from the literacy requirement, he is inadmissible
under section 212(a)(25) of the Act, and, therefore, is statutorily ineligible for
adjustment of status under section 245 of the Act, as amended.

This matter is before the Regional Commissioner on certification
by the District Director who denied the application for adjustment
of status under section 245 of the Immigration and Nationality
Act, as amended.

The applicant is a 59-year-old single male native and citizen of
Italy. He last entered the United States as a nonimmigrant visitor

for pleasure April 20, 1968 and received extension of stay to June
30, 1970. Private bills to give the applicant permanent residence
status were introduced in the 91st and 92nd Congresses, but failed
passage.
The father of the applicant became a naturalized citizen of the
United States in 1937 but the applicant was then 22 years of age,
has never been lawfully admitted to the United States for permanent residence and therefore did not derive United States citizenship. His mother, a native and citizen of Italy, never resided in the
United States. Both parents are now deceased. He has no close
relatives in Italy. He has two sisters living in the United States,
one a citizen of the United States, the other a permanent resident.
A petition to accord the applicant preference under section
203(aX5) of the Immigration and Nationality Act as the brother of
a United States citizen has been approved and a visa number is
immediately available to him.
The applicant is a deaf mute and is afflicted with diabetes. He is
unemployed and it is unlikely that he will ever engage in gainful
employment. He receives a monthly Social Security check of
$10590 as the disabled son of a United States citizen. He receives
room and board at the homes of his sisters. From evidence
677

Interim Decision #2282
submitted by his two sisters and by a nephew, we believe that the
applicant has affirmatively established that he will not have to
earn a living (section 212(a)(7)) and that he is not likely to become a
public charge (section 212(a)(15) of the Immigration and Nationality Act).
The sole remaining issue to be resolved then is whether the
applicant is excludable under section 212(a)(25) of the Act which
states that:
.

Except as otherwise provided in this Act, the following classes of aliens shall
be ineligible to receive visas and shall be excluded from admission into the
United States:

Aliens (other than aliens who have been lawfully admitted for permanent
residence and who are returning from a temporary visit abroad) over
sixteen years of age, physicially capable of reading, who cannot read and
understand some language or dialect.

The record shows that the applicant cannot read any language.
To be exempt from the excluding provisions of section 212(aX25),
supra, the alien must be included in one of the following classes:
L Any alien sixteen years of age and under (section 212(a)(25) of the Act).
The applicant is 59.
2. Any alien physically incapable of reading (section 212(aX25) of the Act).
There is no showing that the applicant is physically incapable of reading. A
deaf mute is not considered to be physically incapable of reading (U.S. ex
Engel v. Tod, 294 Fed. 820).
3. Any alien lawfully admitted for permanent residence who is returning from
a temporary visit abroad (section 212(a)(25) of the Act). The applicant has
never been lawfully admitted for permanent residence.
4. Any alien who is the parent, grandparent, spouse, daughter or son of an
admissible alien, or of an alien lawfully admitted for permanent residence, or
of a citizen of the United States, if the illiterate alien is accompanying or
coming to join such relative in the United States (section 212(b)(1) of the Act).
The applicant is the brother of a United States citizen and of an alien lawfully
admitted for permanent residence but brothers and sisters are not included in
this exemption.
5. Any alien who is seeking to enter the United States to escape religious
persecution in the country of his last permanent residence (section 212(b)(2) of
the Act). No such claim has been advanced by the applicant.
6. Any alien seeking entry as a nonimmigrant (section 212(dX1) of the Act).
Although the applicant entered as a nonimmigrant visitor for pleasure he
now seeks immigrant status.

We are aware of the sympathetic features of the case and of the
dilemma faced by the applicant's sisters in arranging for his care,
but our decision is not one of discretion. The applicant is statutorily ineligible for admission as an immigrant under section
212(aX25), supra, and therefore ineligible for adjustment of status
under section 245 of the Immigration and Nationality Act. The
decision of the District Director will be affirmed.
It is ordered that the denial of the application be and the same is
hereby affirmed.
678


Interim Decision #1372

MATTER

or

ESPOSITO

In SECTION 223 Proceedings
A-5804401

Decided by Regional Commissioner April 15, 1964
An alien who unlawfully entered this country and remained here in an illegal
status is ineligible for a permit to reenter the United States under section 223,
Immigration and Nationality Act, since he has not been lawfully admitted to
the United States for permanent residence.

This case is here for consideration of the appeal from the denial of
the application for a permit to reenter the United States as provided
in section 223 of the Immigration and Nationality Act. The District
Director, Cleveland, Ohio, denied the application on March 13, 1964,
for the reason that the applicant is ineligible for the issuance of a
permit to reenter the United States because he has not been lawfully
admitted to the United States for permanent residence.
Applica,nt is a 66 -year- old married native and citizen of Italy. This
application was filed on September 27, 1963, with the District Director,
Cleveland, Ohio, and he subsequently departed from the United States
to

Ttsly on October 26, 196S, to join his wife there. He has presented

in support of his application a notarized statement in which he admits
that he entered the United States unlawfully as a crewman in August,
1962. In that statement he specified that his entry occurred at Niagara
Falls, New York, but in a subsequent letter to the District Director he
advised that his entry actually occurred at Norfolk, Virginia, where
he deserted his vessel on August 31, 1926. In support of his statements
concerning his entry into this country, applicant has also submitted an
official document from the Captain of the Port, Port of Catania, Italy,
which corroborates the applicant's statements concerning his unlawful
entry into the United States as a deserting crewman. Applicant has
stated further that when he registered under the Alien Registration
Act of 1940 and when he applied for a certificate of identification as an
enemy alien in 1942, he assumed the identity of a person named
Francesco Borsa, since he was afraid to reveal his true identity.
661

Interim Decision 41372 •
It is clear on the record that the applicant unlawfully entered the
United States and remained here for many years in an illegal status.
Having not been lawfully admitted to the United States for permanent
residence, he is not eligible for a permit to reenter this country as a
returning resident and the application was properly denied. The
decision of the District Director will, therefore, be affirmed and the
appeal will be dismissed.
ORDER: The decision of the District Director, Cleveland, Ohio,
is affirmed and the appeal of the appellant is dismissed.

662


Interim Decision #1619

Ma Tee or Kum =Ail
In Deportation Proceedings
A-12593227
Decided by Board July 13, 2966
Respondent, who, following lawful admission to the United States for permanent residence, became deportable under section 241(a) (4), Immigration
and Nationality Act, because of conviction of crimes involving moral turpitude, is not precluded from establishing statutory eligibility for adjustment
of status under section 245 of the Act;• however, such relief is denied, as.a
matter of discretion, in view of the fact he •was recently convicted, he is
under judicial restraint, he has created substantial debts which remain oututoualog, be absconded after the first hearing. and he has failed to support
the children of his .first marriage althotigh under legal compulsion to do so.
ClEABGE:

Order: Act of 1952—Section 241(a)(4) (8 U.S.O. 1251(a) (4)3—Convicted
of two crimes: petty theft and obtaining money by
a bogus note.

The special inquiry officer certified his order finding respondent
deportable upon. the ground. stated above and denying his application for adjustment of status under section 245 of the Act. The issues are whether the respondent's convictions arose out of a single
scheme of criminal misconduct and whether he is statutorily ineligible for the relief he seeks.
Respondent, a 31-year-old married male, a native-born citizen of
the Netherlands, was admitted for permanent residence in 1960. On
October 22, 1964, in a Justice Court, Yuma County, Arizona, he entered a plea of guilty to a count which charged him with having defrauded Mrs. Currier of $30 on March 7, 1964, and to a count charging him with taking $36.81 from the same person on March 17, 1964.
He was fined. $150 or 75 days on each count; the imprisonment to be
served concurrently.
•Matter., DaSilea, 10 I. & N. Dec. 191, modified; the Board follows the rule
of Tiblue v. Immigration and Naturalization Service, 835 P.2d 42 (CA. 2, 1904),
in cases where the facts are those found in Tibia..

72i1

Interim Decision *1619
Out of an incident which occurred on February 14, 1964, he was
convicted on a plea of guilty in the Superior Court, Yuma County,
Arizona on March 15, 1965 of having obtained over $400 by means
of a bogus installment note; the court imposing certain conditions,

ordered imposition of sentence suspended for five years.
The respondent .contended that his convictions arose out of a
single scheme of criminal misconduct which was caused by his
desperate financial situation in February, March and April. 1964
while he was operating a frozen food. business in Yuma, Arizona.
The respondent's testimony reveals that in February 1964 he issued
the bogus note to a food fin ances, company to Obtain a four months'

food supply for himself and his family and that the two incidents
in March 1964 arose when money which had been collected by his
employees and which should have been sent to the same food finance
company was sent elsewhere without his knowledge. Counsel has
submitted a letter explaining that the funds respondent received
were put back in the business and lost when the respondent's business failed. The special inquiry officer after a careful review of the
precedents concluded that a single scheme did not exist because the
records of conviction established that each crime was a separate
act rather than a part of a unified act or action (p. 8).
The Service has the burden of establishing the crimes do not
arise out of a single scheme of criminal misconduct. We believe
the Service has borne its burden. Respondent's explanation that
the convictions in March were the result of his employees failures
cannot be accepted in light of the fact that he was convicted for
wilfully and knowingly defrauding his victim. Even accepting respondent's explanation that the same parties were involved in February as were involved in March, we do not find that the record.
establishes that when he issued the note in February 1964 he intended
committing the frauds in March 1864.
The special inquiry officer. relying on Matter of Da Sz7iviy 10 L &••
N. nee. 191 found respondent inelegible for adjustment of status
under section 245 of the Act on the ground that the relief applied
'for was not available to one who had entered as an-immigrant. The
special inquiry officer is cognizant of the fact that a contrary rule
has been stated in the Second Circuit (TThke v. Immigration and
Natni,aZiaation Service, 335 F.201 42 (2d Cir., 1964)), but felt constrained to follow the Board's rule because he found no Board holding overruling its precedent, and because the instant case is not in
the Second Circuit.
The Board follovis the Tibke rule in cases where the facts are
those found in Tzliee (Matter of BufaZino, Int. Dec. No. 151fi, p. 11).
721

Interim Decision

44619

Although the respondent is not statutorily. ineligible for the relief
he seeks, we shall deny it as a. matter of discretion because of the unfavorable factors of record: Respondent was recently convicted, he
is under judicial restraint (in connection with the suspension of his
sentence), he has created substantial debts which remain outstanding,
he absconded after the first hearing, and he has failed to support the
children of his first marriage although under legal obligation to do
so (Matter of Francois, 10 I. & N. Dec. 168).
ORDER: it is ordered that no change be made in the order of the
special inquiry officer.

7Z1


Interim Decision #2509

MATTER oP Lox
In Deportation Proceedings
A-31327663
Decided by Board July 80, 1976
(1) Although the provisions for waiver of grounds of excludability under section 212(c) of
the Immigration and Nationality Act are applicable to an alien in deportation proceedings, the seven-consecutive-year-period of unrelinquished domicile in the 'United States
required to qualify must have occurred subsequently to,the alien's lawful admission for
permanent resident.
(2) Respondent had been doMiciled in the United States from 1959 to October 25, 1971,
(nearly 12 consecutive years), but had never been lawfully admitted for permanent
,residence. HE departed the United States on the latter date and was readmitted three
months later for permanent residence on December 26, 1971, after having received

permission to reapply for admission. Therefore, respondent was statutorily ineligible
for section 212(c) relief sought at his deportation hearing brought under section
241(a)(11) of the Act based on his 1973 conviction for offenses relative to the possession
and clistrihnt-on of narcotics (heroin), because having been admitted for permanent

residence only since December 26, 1971, respondent did not have the 7 consecutive years
domicile following admission for permanent residence required by section 212(c).
CHARGE:
Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of conspiracy for violation of narcotics laws; possession of narcotics
with intent to distribute heroin. U.S. Code Title 21, Sections
812, 841(a)(1), 841(b)(1)(A); Title 18, U.S. Code section 2

ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Max K. Schlem, Esquire
223 Broadway
New York, New York 10007

George Indelicato
Appellate Trial Attorney

In a decision dated May 29, 1975 the immigration judge found the
respondent deportable under section 241(a)(11) of the Immigration and
Nationality Act, denied his application for a waiver of inadmissibility
under sectioa 212(c) and ordered his deportation. The respondent has
appealed from that decision. The appeal will be dismissed.
The respondent, a native and citizen of China, entered the United
States as a nonimmigrant crewman in 1959. He remained beyond the
authorized period of his admission and, after a hearing before a special

inquiry officer on October 26, 1965, was found deportable under section
720

Interim Decision #2509
241(a)(2) of the Act and was granted the privilege of departing voluntarily. An alternate order of deportation was then entered against him.
Private bills were subsequently introduced in Congress in his behalf
and, as a result, he was given until March 2, 1969 to depart the United
States voluntarily. He did not leave, however, until October 25, 1971.
Shortly thereafter, on December 26, 1971, after having received permission to reapply for admission, he returned to the United States as a

lawful permanent resident. In 1973 he was convicted upon a plea of
guilty of offenses relating to the possession and distribution of narcotic
drugs, to wit, heroin, and these proceedings were instituted against
him.
At the deportation hearing the respondent admitted the truth of the
allegations in the order to show cause and conceded his deportability.
The only issue on appeal involves his application for a waiver of inadmissibility under section 212(c).
Section 212(c) provides in pertinent part:
"Aliens lawfully admitted for permanent residence who temporarily proceeded abroad
voluntarily and not under an order of deportation, and who are returning to a lawful
unrelinguished domicile of seven consecutive years, may be admitted in the discretion
of the Attorney General without regard to the provisions of paragraph (1) through (25)
and paragraphs (30) and (31) of subsection (a)." (Emphasis supplied.)

Although the language of the statute describes a waiver to an alien
seeking to enter the United States, we have held that this waiver may
be granted in deportation proceedings in connection-with an application
for adjustment of status. Matter of Smith, 11 I. & N. Dec. 325 (BIA
1965).
The seven-year period of domicile in the United States, however,
must have followed the lawful admission for permanent residence. Matter of 5 , 5 I. & N. Dec. 116 (BIA 1953). Inasmuch as the respondent
was not admitted as a lawful permanent resident until 1971, he does not,
have the requisite seven years and is consequently statutorily ineligible
for section 212(c) relief.
—

The decision of the immigration judge is correct. Accordingly, the
appeal will be dismissed.

ORDER: The appeal is dismissed.

721.


Interim Decision # 2055

MATTER OF ORTEGA

In Exclusion Proceedings
A-19173112
Decided by Board August 19, 1970
Notwithstanding presentation of a third preference immigrant visa supported by a labor certification based upon a B.S. degree in animal husbandry, an alien who upon arrival in the United States had no intention of
working in the field of animal husbandry, or reasonable prospects of doing
so, is excludable under section 212(a) (14) of the Immigration and Nationality Act, as amended, for lack of a valid labor certification.
EXCLUDABLE: Act of 1952—Section 212(a) (14) [8 U.S.C. 1182]—Immigrant,
no valid labor certification.
ON BEHALF OF APPLICANT:

ON BEHALF OF SERVICE:
Robert A. Vielhaber
Appellate Trial Attorney

Gerald L. McVey, Esquire
30 Hotaling Place
San Francisco, California 94111
(Brief submitted)

Stephen M. Suflin
Trial Attorney
(Brief filed)

The record relates to a 30-year-old single male alien, a native
nd national of the Republic of the Philippines, who applied for
dmission into the United States for permanent residence on
pril 5, 1969. He presented an immigrant visa supported by a
rtification from the Secretary of Labor. The latter document
lowed that the applicant was destined to the United States for
nployment as an animal scientist ; that there were not sufficient
tch United States workers available; and that his employment in
,id field would not adversely affect the wages and working contions of workers in the United States similarly employed.
The applicant told the examining immigration officer that he
id no intention of working in the field of animal husbandry, but
tended to work as a real estate salesman. Accordingly; his case
is referred for an exclusion hearing before a special inquiry
icer who, on April 16, 1969, ordered him excluded and deported
)m the United States on the above-stated ground.

606

Interim Decision #2055
The appeal from the foregoing decision, which originally
brought the case before this Board for consideration, was supported by documents indicating that, commencing on April 23,
1969, the applicant had been employed in this country in a field
related to animal husbandry. On July 3, 1969, without indicating
that the employment covered entitled the applicant to admission
to the United States, we remanded the case to the special inquiry
officer so that the documents submitted could be introduced in the
record and thereafter the effect of the applicant's employment, if
any, upon his admissibility considered by the special inquiry
officer.
On September 23, 1969, the special inquiry officer again
ordered that the applicant be excluded and deported from the
United States. Said official then certified the case to us for review
and final decision.
The applicant was graduated in 1964 from Araneta University
in the Philippines, with a Bachelor of Science degree in Animal
Husbandry. Following his graduation, he obtained employment in
that field at the Canlubang Sugar Estates as an assistant manager. He left that position after about two months because the pay
was too low. For the next year he was employed by the Mercury
Drug Company in the Philippines, selling and promoting veterinary drugs. In 1966 he became employed by his mother as a real
estate salesman, and he continued in that occupation until his
departure for the United States.
It was developed at the reopened hearing that since April of
1969 the applicant has been working at the Stanford Research
Institute in the Department of Laboratory Animal Medicine; that
he works with common laboratory research animals feeding,
cleaning, observing, and caring for them, and that various other
animal husbandry techniques are practiced by him. It was also
developed at the reopened hear ing that no experience or skill was
required to fulfill the position held by the applicant. Accordingly,
it is established—and also conceded—that the applicant is not
presently employed in the profession of an animal husbandman,
who is defined as a scientist who
Conducts research in the selection, breeding, feeding, management, and marketing of beef and dual purpose cattle, horses, mules, sheep, hogs, goats, and
pet animals; Determines feed requirements of animals under varying conditions of vork or production. Develops improved practices in housing,
sanitation, and parasite and disease control. Controls breeding practices to
improve strains of animals; May specialize in detel mining feed requirements

607

Interim Decision #2055
of animals and in developing required nutrients and be designated as Animal Nutritionist. 1

The foregoing facts led the special inquiry officer to conclude
that the applicant was coming to the United States to enter the
labor market in competition with American workers in an occupation not covered by the labor certification he presented. However, the special inquiry officer raised the novel question of
whether section 212(a) (14) of the Immigration and Nationality
Act (8 U.S.C. 1182) renders excludable an alien who has been
accorded a preference status under section 203 (a) (3) of the Act
(8 U.S.C. 1153), but who will not follow the occupation upon
which the grant of his labor certification was predicated. The
theory behind this proposition, apparently, is that the Congress
did not intend the labor certification requirement of section
212(a) (14) to apply to aliens who qualify as members of the professions within the purview of section 203(a) (3) because, as professional persons, they will not perform "labor" (skilled or
unskilled) within the generally accepted meaning of that term.
We, like the special inquiry officer, cannot accept this proposition
or the theory on which it is based.
Section 212(a) (14) of the Immigration and Nationality Act
specifically provides that: "... the exclusion of aliens under this
paragraph shall apply ... to preference immigrant aliens
described in section 203 (a) (3) ..." The section's clear and unambiguous language specifically includes within its ambit third preference immigrants such as this respondent. Also, to hold otherwise would be to add an additional exemption to the requirement
of a labor certification not provided for in 8 CFR 212.8(a) which,
in substance, provides that the certification requirement of section 212(a) (14) applies to aliens seeking admission who are preference immigrants as described in section 203 (a) (3) of the Act.
Obviously, the Congress did not envision that a person who
obtained a certification as a "professional" person would be permitted to enter this country to compete in the labor market in a
nonprofessional category for which no "clearance" had been
granted. The regulations are geared accordingly.
Basically, therefore,*the crux of this case is the same as in all
others arising under section 212(a) (14), to wit: Does the applicant intend to take up the employment for which he was
certified? 2 There are, however, considerations peculiar to this
Dictionary of Occupational Titles (1965), U.S. Department of Labor,
Manpower Administration, Bureau of Employment Security.
2 Matter of Poulin, Interim Decision No. 1973 (BIA, 1969).

608

Interim Decision #2055
type of case which differentiate it from the others, to some extent
at least.
Thus, the Immigration and Nationality Act, as amended, does
not specify that a member of the professions must be coming to
this country to engage immediately in the practice of his profession. No prospective employer is required, and no specific job
offer is necessary. In many instances, and frequently because of
factors over which the alien has no control, such as licensing and
other local restrictions, he may be .forced to accept any available
employment for a period of time after arrival before entering
into professional practice. And the legislative history of section
203 (a) (3) shows that the addition of professional immigrants to
this country was intended to be a boon to the American culture
and work force, since they would be "free to climb."'
However, the phrase "for the purpose of performing," in section 212 (a) (14), clearly indicates that an alien within its purview must establish a bona fide intent to engage in his profession,
at least in the foreseeable future. The section's legislative history
does - not indicate it was the wish of the Congress to award a
preference to an alien who, although fully qualified as a member
of the professions, has no intention of engaging in his specialized
*field of endeavor, or reasonable prospects of doing so. In resolving the question of intent, consideration may properly be given to
factors such as whether the alien is presently employed in his
profession and, if not, the length of time he has not been so
employed and the reasons therefor.4
We find that application of the foregoing rationale to the facts
of this case calls for approval of the special inquiry officer's decision to exclude the applicant. He has only followed his profession
for two months since graduating from college in 1964, and that
immediately following his graduation. He has been in this country over a year and has not shown that he has reasonable prospects of engaging in his profession in the foreseeable future, or
satisfactorily explained why he has not done so to date, as he
must as an applicant for admission.' Under these circumstances,
his actions both prior and subsequent to arrival, viewed in the
light of his statement to the primary inspector that he did not
intend to follow his profession, clearly outweigh his present selfserving and unsupported assertion to the contrary.
In the latter connection, the special inquiry officer, who was in
3
4
5

Matter of Stamatiades, 11 I. & N. Dec. 643 (D.D., 1966).
Matter of Semerjian, 11 I. & N. Dec. 751 (Reg. Corn., 1966).
Section 291, Immigration and Nationality Act (8 U.S.C. 1361).

609

nterim Decision #2055
he best position to judge the accuracy, reliability and truthfulLess of the applicant's testimony, felt that the latter's present
xplanation was an afterthought, made only after he learned of
he possible consequences of his initial damaging statement. The
pecial inquiry officer was convinced that the applicant would
ngage in employment other than that for which he was certified,
f he thought he could do so with impunity. We are entitled to
;hie great weight to the special inquiry officer's evaluation of the
,estimony, and we do so here. The applicant's actions both before
tnd since arrival speak louder than his present protestations and,
again, he has not met his burden of showing the factors required
,o authorize his admission despite the time he has had to do so.
ORDER It is ordered that the special inquiry officer's decision
)f September 23,1969, be and the same is hereby affirmed.

610


MArrEB OF S

In DEPORTATION Proceedings
A-10891495
Decided by Board May 22, 1959
Crime involving moral turpitude—Carrying concealed and deadly weapon with
intent to use against the person of another, Minnesota.
Carrying a concealed and deadly weapon with intent to use against the person
of another in v iirlaLlun of section 6115.41, Minnesota Statutes (Annotated-1957), is a crime involving moral turpitude.
CHARGE :

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
of crime involving moral turpitude committed within 5 years after
entry and sentenced to confinement for a year or more, via., carrying
concealed weapon (Minnesota).
BEFORE THE BOARD

Discussion: This case is before us by certification. The respondent is a 19-year-old unmarried male alien, a native of the Ukraine
(Soviet Union) alleged to be stateless, who last entered the United
States on April 6, 1957. Following expulsion hearing, a special inquiry officer on March 10, 1959, rendered an oral decision in which
he directed deportation on the charge in the order to show cause.
Subsequently, upon further consideration of the pertinent issue of
deportability, he prepared a decision on March 30, 1959, in which
all of the pertinent points relating to the grounds for deportation
have been carefully and thoroughly discussed. It has been decided
that the allegations in the order to show cause are established by
documentary evidence in the record and the pertinent law applicable thereto. The case has been certified to the Board for review.
The question of deportability is the only issue before us.
Deportability is predicated on documentary evidence which shows
that the respondent pleaded guilty to a criminal charge (an information) on October 28, 1958, which set forth that he had committed the crime, carrying a concealed weapon, m violation of section
616.41, Minnesota Statutes (Annotated-1957), (committed on or
about October 20, 1958) in the City of Minneapolis, Hennepin
County, Minnesota. The pertinent charge reads:
344

* * * then and there heinZ, did willfully. unlawfully, wrongfully and knowingly

carry, conceal and have in his possession and on his person, with intent to use
against the person of one J C C ,a certain dangerous weapon, to
wit: a .38 caliber pistol commonly called a revolver, a more particular description of said revolver being to me unknown, said revolver being then and
there loaded with gunpowder and leaden bullets, the said Y—S-- not
then and there being a public officer * * *.

Respondent was convicted in District Court, Fourth Judicial District, Hennepin County, Minnesota, and sentenced on December 3,
195S, for the term of one year, "Defendant to be paroled after serving 6 months with 41 days time off for time served in County Jail."
Although the case is submitted without argument or brief, the
respondent challenges the finding that he has been sentenced to a.
term of "one-year or more" within the meaning of section 241(a) (4)
of the Immigration and Nationality Act.'
The applicable provision of law in the Minnesota Statutes (Annotated), defining and specifying the elements of the crime committed by the respondent., and the statute tinder which he was convicted,
is section 616.41 entitled "Deadly weapons" which reads as follows:
Every person who shall manufacture, or cause to be manufactured, sell,
keep for sale, offer, or dispose of, any instrument or weapon of the kind
usually known as a slung-shot, sandclub, or metal knuckles; or who shall
attempt to use against another, or with intent so to use, shall carry, conceal,
or possess, any of the weapons hereinbefore specified, or any dagger, dirk,
knife, pistol, or other dangerous weapon, shall be guilty of a gross misdemeanor. The possession by any person, other than a public officer, of any
such weapon concealed or furtively carried on the person shall be presumptive
evidence of carrying, concealing, or possessing with intent to use the same.

The punishment or penalty for crimes committed in violation of
the aforementioned statute (gross misdemeanors), is set forth in
section 610.20 of the Minnesota Statutes (Annotated), which reads:
Whoever shall be convicted of a gross misdemeanor for which no punishment is prescribed by any statute in force at the time of conviction and sentence shall be punished by imprisonment in the county jail for not more than
one year, or by a fine of not more than 84,000.

First, we will briefly review the elements of the offense herein
involved and considered whether such crime is one having the elements of moral turpitude. In other words, we will determine by
review whether there is a basis for action other than that which has
been taken by the special inquiry officer.
Concisely, the overt acts that are the basis for the alien's conviction are contained in the information to which the respondent enSEC. 241. (a) Any alien in the United States (including an alien crewman)
shall, upon the order of the Attorney General, he deported who— * * ■
(4) is convicted of a crime involving moral turpitude committed within
five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more * * *.

345
.56271 3—C 1

24

tered a plea of guilty. These acts were that he willfully, unlawfully, wrongfully and knowingly did carry on his-person, conceal
and have in his possession and on his person, a certain dangerous
weapon, a loaded revolver, with intent to use the weapon against
the person of another. It is essential to know the specific kind of
weapon used in the concealment and possession of a weapon with
intent to use it, or attempt to use the weapon against the person of
another, in order to determine whether it is dangerous (Matter of
B ,11. Le; N. Dec. 52).
The weapon in the instant case was a revolver, 'loaded, which has
been held to be a dangerous weapon; and the shooting of a person
has been held to be a crime involving moral turpitude (United States
ex rel. Morlacei v. Smith, 8 F.2d 663). Nor can it be disputed that
the use of a dangerous weapon against the person of another is motivated by an evil, base, and vicious intent. The essence of the
offense is the carrying of the dangerous weapon with a hare, evil
and vicious intent to injure another (State v. Simon, 163 Minn. 317).
The intent to commit an offense having the elements of moral turpitude has the same elements as the offense (United States ex rel.
Meyer v. Day, 51 F.2d 336). The special inquiry officer, after thorough consideration of the issue, has reached the conclusion that carrying a concealed weapon with intent to use it against the person
of another is a crime involving moral turpitude. We concur in that
decision.
The sentence of the respondent to imprisonment for the term of
one year satisfies the provisions of section 211(a) (1) of the Immigration and Nationality Act. The sentence is measured by the possible maximum time the alien is liable to serve.'- The maximum time
this respondent was given to serve was a term of one year.
Respondent has complained that he was not represented by counsel
at the time of his appearance and arraignment before the State
Court in the criminal trial. While the matter of legal representation at the time of court trial and conviction is not a matter for our
consideration, we observe that the court record shows the respondent did have legal representation.
In view of the foregoing findings and conclusions, and our review
of the record in the case, the decision of the special inquiry officer
will be affirmed. The respondent may be able to apply for an executive pardon to relieve him from deportation.
Order : It is ordered that the decision of the special inquiry officer be affirmed.
z Matter or 1?-, 1 1. Zt N. Dec. 209, 211; aryl Matter

Dec. 578.

346

0.1`

*G 1. & N.


Interim Decision #1780

MATIER OF No

Application for Classification as Refugee
A-12216472
Decided by Regional Commissioner Maroh,931,1967
Applicant, a native and citizen of China who in 1080 when 11 years of ago fled

with his family from Communist China to Hong Song where he resided with
them until he came to the United States as a student in 1982 when about 22
years of age, is ineligible for refugee classification under the proviso to section
208(a) (7), Immigration and Nationality Act, as amended, because he has
been firmly resettled in another country since his father, owner of an importexport business in Hong Song, has been firmly resettled there and applicant
prior to his entry into the United States was residing at home with his family
and thus was part of a family resettled in Bong Kong.
ON BEHALF, or APPLICANT: Samuel D. Meyers, Esquire
O'Hara & O'Hara Law Offices
88 South Clark Street
Chicago, Illinois 60603

This matter is before the Regional Commissioner for review on certification of the District Director's decision denying the application
for refugee classification under section 203(a) (7) of the Immigration
and Nationality Act, as amended. The application was filed in connection with an application for adjustment of status under section 245
of the Immigration and Nationality Act, as amended. The District
Director denied the application because it was determined that the
applicant was firmly resettled in Hong Kong prior to coming to the
United States as a student in January 1962.
The applicant is a 27-year-old citizen of China who was born in
Swatow, Kwangtung, China on December 23, 1939. He fled from
China in 1949 or 1950 with his father, mother, sister, and brother, after
the Communists occupied China. He has stated that his father was a
former Nationalist Government official. The applicant lived and went
to school in Hong Kong from about 1950 until January 1962 when he
came to the United States as a student.
In Matter of Men, I.D. No. 1685, it was held that an alien who fled
from Communist China but thereafter became firmly resettled is ineli821-684-88-28

411

Interim Decision #1780
gible for classification under the proviso to section 203(a) (7). The
only issue in this case is whether resettlement has been effected.
The applicant has a Hong Kong Certificate of Identity and a Hong
Kong Identity Card. These documents, which may be used to return
to Hong Kong, are not conclusive evidence of resettlement. However,
he lived in that British colony from the age of about 11 years until
he was about 22 years old. He was a student in high school and in a
Bible Seminary while in Hong Kong. His father, who owns an importexport business in that Colony, is certainly resettled. The applicant's
residence is imputed to his parents while a minor While the applicant
was living at home, his residence was in Hong Kong and it will have
to be found that he was resettled in Hong Kong because he is a part of
Et family that resettled in Hong Kong prior to his coming to the
United States. Therefore, the District Director's decision was proper.
It is ordered that the decision of the District Director be and the
same is hereby affirmed.

412


Interim Decision #2439

MATTER OF LEAL

In Exclusion Proceedings
A 31283641
-

Decided by Board October 15,

1975

Respondent, who, following admission to the United States for permanent residence,
departed to Canada with his girlfriend on a one-day trip undertaken expressly in
connection with a scheme whereby she would obtain her immigrant visa through
fraud—a purpose contrary to the immigration laws—did not make an "innocent" and
"casual" departure within the ambit of Rosenberg v.Fleuti„ 374 U.S. 449 (1963). Hence,
his case does not fall within the scope of Maldonado-Sandoval v. INS, 518 F.2d 278
(1975), and upon his return from Canada he sought to make an "entry" within the
meaning of section 101(a)(13) of the Immigration and Nationality Act, upon the basis of
which exclusion proceedings are predicated.
EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]--Immigrant not
in possession of valid immigrant, visa or other valid
entry document.
ON BEHALF OF APPLICANT: Ralph M. Schelly, Esquire
100 N. LaSalle Street
Chicago, Illinois 60602

This is an appeal from an order of an immigration judge finding the
applicant excludable from the United States on the above grounds, and
directing that he be excluded and deported from the United States_ The
appeal will be dismissed.
The applicant is a 26-year-old married male alien, native and citizen of
Mexico, who was admitted to the United States for permanent resi
dence on November 21, 1973 on the basis of his marriage to Margarita
Oyola, a United States citizen, in Chicago, Illinois on April 7, 1973. On
March 4, 1974, after a one-day trip to Toronto, Canada, he attempted to
reenter the United States as a returning resident. His inspection was
deferred on April 5, 1974 he received notice that he was being held in
exclusion proceedings on the grounds that he may come within section
212(a)(20) of the Immigration and Nationality Act (no valid immigrant
visa) since it appeared that the marriage upon which his visa was based
was not bona Me (Exh. 1).
At the exclusion hearing, at which he was represented by present
counsel, the applicant testified that when he went to Canada on March
477

Interim Dec:Sion #2439
3, 1974 he was accompanied by a woman named Maria Rosa Flores, who
was the mother of his child and with whom he was then living (Tr. pp.
12-13). Under questioning by the immigration judge, the applicant
testified furfier that he knew Maria Rosa Flores was going to Toronto
to obtain an immigrant visa on the basis of her marriage to a United
States citizen (Tr. pp. 52-53). The applicant also testified that he never
lived with his United States citizen spouse after their marriage because
she had learned that his "sweetheart," Maria Rosa Flores, was pregnant, although he claimed that he intended to live with his wife and
denied entering into the marriage solely for the purpose of securing
immigration benefits (Tr. pp. 52-53).
Counsel initially moved to terminate exclusion proceedings on the
ground that , the applicant's one-day journey to Toronto was a "brief,
innocent and casual" departure within the meaning of the Supreme
Court's holding inRosenberg v. Monti, 374 U.S. 449 (1963), and thus did
not subject ;he applicant to the consequences of an "entry" under
section 101(a)(13) of the Act upon his attempt to return to the United
States (Tr. pp. 7-8). The immigration judge reserved ruling on the
motion pending the receipt of evidence.
In his decision, entered on January 28, 1975, the immigration judge

concluded that in view of the applicant's testimony that he had been
living with Maria Rosa Flores at the time he obtained his immigrant
visa on the basis of his marriage to Margarita Oyola (Tr. p_ 52, lines

12-13), the visa was thus fraudulently obtained and invalid, rendering
the applicant inadmissible under section 212(a)(20) of the Act. In rejecting counsel's motion to terminate exclusion proceedings, the immigration judge relied on our decision in Matter of Maldonado-Sandoval, 14
I. & N. Dec. 475 (BIA 1974), in which we held that the lawfulness of an
alien's original admission for permanent residence can be questioned in
exclusion proceedings in connection with an application for readmission

to the United States, notwithstanding the Fleuti-type nature of his
departure.
However, subsequent to the immigration judge's decision, the Ninth
Circuit Court of Appeals reversed our decision in Maldonado-Sandoval,
supra, and hcld that:
"When evidence appears, during an exclusion proceeding that the alien has been
theretofore granted residence status and is seeking to return to the United States after
a brief visit outside the United States, the exclusion proceeding shall be terminated. If
there is also evidence that the alien may have fraudulently secured his residence status,
the Immigration and Naturalization Service can thereupon institute deportation proceedings against him." Maldonado-Sandoval v. INS, 518 F.2d 278 (C.A. 9, 1975).

Although in the above quotation the court speaks of aliens who are
returning from "brief" visits outside the United States, it seems clear
that it is referring to those making Fleuti-type departures, which must
478

Interini Decision #2439
also be "innocent" and "casual" according to the Supreme Court's language in Rosenberg v. Fleuti, supra, which is quoted by the Court of
Appeals in Maldonado-Sandoval v. INS, supra. We must therefore
decide whether the applicant's one-day trip to Canada, concededly
"brief," can also be characterized as "innocent" and "casual" so as to
bring his attempted return to the United States within the ambit of
Rosenberg v. Fleuti, supra, and thus within the holding of MaldonadoSandoval v. INS, supra. We conclude that it cannot. 1
InFleuti the Supreme Court enunciated certain tests for determining
whether an alien's departure reflects an intent to depart in a manner

meaningfully interruptive of his permanent resident status, so that he
would be making an "entry" upon his return. With respect to the
"innocence" of the excursion, the Supreme Court noted that if the
purpose of leaving the United States is to accomplish some object which
is itself contrary to some policy reflected in our immigration laws, it
would appear that the interruption of residence thereby occurring
would properly be regarded as meaningful, Rosenberg v. Fleuti, supra.

Applying this criterion to the present case, it is clear that the applicant's trip to Toronto cannot be considered "innocent." By his own
testimony he has implicated himself in a scheme whereby his girlfriend
would obtain her immigrant visa through fraud, and his trip to Canada
with her was undertaken expressly for this purpose. In fact the applicant's testimony establishes that his own immigrant visa was secured
through similar fraudulent means some months earlier. It is therefore
difficult to view his foreign excursion as "casual," either. See Matter of
Valdovinos, 14 I. & N. Dec. 438 (BIA 1973) and Matter of ValenciaBarajas, 13 I. & N. Dec. 369 (BIA 1969).
We therefore find that the applicant was seeking to make an "entry"
into the United States within the meaning of section 101(a)(13) of the
Immigration and Nationality Act when he sought readmission on March
4, 1974, and that the immigration judge properly refused to terminate
exclusion proceedings, although he did so for other reasons previously
discussed. We also concur in the immigration judge's conclusion that the
respondent is excludable from the United States under section 212(a)(20) of the Act. The decision of the immigration judge will therefore
be affirmed and the following order will be entered.
ORDER: The appeal is dismissed.

1 We note at this point that the present case did not arise in the Ninth Circuit. Although
we are bound by that Court of Appeals' determination in Maldonado-Sandoval with
respect to cases emanating from that jurisdiction, our finding herein that the applicant
deco not come within the scope of that holding permits us to reserve, for the present, the
question of whether to apply it in cases arising outside of the Ninth Circuit.

479


Interim Decision #2853

MATTER OF HERRERA
In Deportation Proceedings
A-22387924
Decided by Board March 19, 1981
(1) The physical presence requirement of section 244(a)(1) of the Immigration and National.
ity Act, 8 U.S.C. 1254(aX1), has not been subject to hard and fast construction.
(2) Aliens with 7 years of presence in the United States have been found eligible for suspension of deportation so long as no departure was "meaningfully interruptive" of
their stays here.
(3) In the Ninth Circuit, a departure from the United States meaningfully interrupts an
alien's "continuous physical presence" here for suspension purposes if it "reduced the
significance of the whole petted as reflective of the hardship and unexpectednessof expulsion." '
(4) A strung policy against sham marriages is reflected In the Immigration and Nationality

Act, and in the case law interpreting that Act.
(5) Where alien departed the United States in furtherance of a scheme to obtain an
immigration benefit through a sham marriage, that departure was neither casual nor
innocent, but rather meaningfully interrupted his 7 years continuous physical presence here. He is thus statutolly ineligible for suspension of deportation.
CHARGE:
Order: Act Of 1952

—

See. 241(a)(2)l8 U.S.C. 1251(a)(2))
longer than permitted

ON BEHALF OF RESPONDENT:

Nonimmigrant remained

—

—

ON BEHALF F SERVICE:

Roger McCaffrey, Esquire
2110 E. 17th Street, Suite 123
Santa Ana, California 92705

Thomas Y.K. Fong
Trial Attorney

By: Milhollan, Chairman, Maniatis, Appleman, and Maguire, Board Members

In a decision dated October 24, 1979, an immigration judge found the
respondent deportable under section 241(a)(2) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant visitor who had
remained longer than authorized, denied his application for suspension
of deportation, and granted him the privilege of voluntary departure in
lieu of deportation. The respondent appealed. The appeal will be
dismissed.
The respondent is a 40-year-old native and citizen of Mexico. He last

entered the United States on December 14, 1976, as a nonimmigrant
visitor. Deportability has been conceded, and the only issue on appeal,
4

Interim Decision #2853
as at the hearing, is the respondent's eligibility for suspension of deportation under section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1).
In order to qualify for suspension of deportation, an alien who is
deportable as an overstay must show that he has been physically present in the United States for a continuous period of at least 7 years, that
he has been a person of good moral -character for all that time, and that
his deportation would result in extreme hardship to himself or to his
spouse, parent or child who is a citizen or lawful permanent resident of
the United States. Section 244(a)(1) of the Act. In the present case, the
immigration judge found that the respondent had failed to meet both the
7 years continuous presence requirement and the extreme hardship
requirement. He further stated that, even if the respondent had been
statutorily eligible for suspension, he would have denied that relief as a
matter of discretion.
The "physical presence" requirement of section 244(a)(1) has not been
subject to a hard and fast construction. Instead, aliens with 7 years of
presence in the United States have been found eligible for relief so long
as no departure from this country was "meaningfully interruptive" of
their stays here. See Git Foo Wong v. INS, 358 F.2d 151 (9 Cir. 1966);
Wadman v. INS, 329 F.2d 812 (9 Cir. 1964); Matter of Wong, 12 I&N
Dec. 271 (BIA 1967). See also Rosenberg v. Fleuti, 374 U.S. 449 (1963).
In making the determination whether a given departure was "meaningful"
we look to see whether the departure was "brief, casual and innocent:" if
so, it will not interrupt the period of continuous physical presence
required for suspension of deportation. See Git Foo Wong, supra;
Wadman, supra; Matter of Wong, supra.

The United States Court of Appeals for the Ninth Circuit has further
held that in reviewing the meaningfulness of a departure, this "Board
must determine whether a particular absence during the 7 year period
reduced the significance of the whole period as reflective of the hardship
and unexpectedness of expulsion." Kamh,eangpatiyooth. v. INS, 597 F.2d
1253, 1257 (9 Cir. 1979).. "An absence cannot be significant or meaningfully interruptive of the whole period," the Court stated, "if indicatk.ns
are that the hardship of-deportation to the alien would be equally severe
had the absence not occurred, and that no significant increase in the likelihood of deportation could reasonably have been expected to flow from
the manner and circumstances surrounding the absence."• See also
Chan v. INS, 610 F.2d 651 (9 Cir. 1979). As the present case arises in
the Ninth Circuit, this legal standard will be applied here.
In this case, the Immigration and Naturalization Service concedes
that the respondent has been physically present in this country, except
for several brief absences, since 1966. The question, then, is whether
any of these absences meaningfully interrupted his presence here The
departure with which the immigration judge was concerned, and with
-

5

Interim Decision #2853
which we will deal, occurred in 1976. At that time, the respondent went
to the American consulate in Tijuana, Mexito, in order to obtain a visa.
He sought a second preference immigrant visa as the spouse of a lawful
permanent resident, based on his marriage to one Perla Pereira, a lawful permanent resident. This marriage, however, was undisputedly a
sham, entered into solely for immigration purposes. A proxy marriage
to Perla had occurred in Guatemala on October 28, 1973. The respondent was not present at the marriage, and in fact has never been to
Guatemala. The respondent has freely admitted that the marriage was
arranged order that he might obtain an immigration benefit, and that
he never lived with Perla, and never intended to. enter into a bona fide
marital relationship with her. At the time of this marriage, the respondent was living with his ex-wife (whom he had divorced in 1973), the
woman with whom he still lives. He paid Perla a total of $2500 to enter
into the marriage and help him arrange for immigration papers. Based
on these facts, the immigration judge determined that the respondent's
1976 departure to obtain a visa based on a sham marriage was neither
casual nor innocent, and that the departure thus meaningfully interrupted the respondent's 7 years of continuous presence here.

The respondent argues that the immigration judge's finding in this
regard was erroneous because he (the respondent) did not know for
certain that his marriage to Perla was not valid under the immigration
laws. Ile contends that his departure in 1976 to obtain a visa was in fact
"innocent" because he was not sure the marriage would not be considered valid, and he had no intention of violating the immigration laws. He
further contends that the departure was casual, in that it was "occasional," and that is the second definition for "casual" given in Webster's
New World Dictionary, 2nd College Edition, 1977.
.

We do not agree with the respondent that his 1976 departure from the

United States was either casual or innocent. The Supreme Court in
Rosenberg v. Fleuti, supra, stated that in determining whether an
alien's departure from that country should be regarded as "meaningful,"
a relevant factor to consider is the purpose of the visit abroad, for,
if the purpose of leaving the country is to accomplish someobject which is itself contrary
to some policy reflected in our immigration laws, it would appear that the interruption
of residence thereby occurring would properly be regarded as meaningful. Id. at 962.

A number of eases have interpreted this portion of the Fleuti decision,
and have held the Fleuti doctrine inapplicable where the aliens while
abroad commit acts contrary to the policies of the immigration laws.
See, e.g., Laredo-Miranda v. INS, 555 F.2d 1242 (5 Cir. 1977) (aiding
illegal aliens to enter the United States surreptitiously); LongoriaCastenada v. INS, 548 F.2d 233 (8 Cir. 1977) (smuggling aliens); CuevasCuevas v. INS, 523 F.2d 883 (9 Cir. 1975) (smuggling aliens); Palatian
v. INS, 502 F.2d 1091 (9 Cir. 1974) (attempting to bring in 55 pounds of
6

Interim Decision #2853
marijuana); Matter of Valencia-Barajas, 13 I&N Dec. 369 (BIA 1969)
(smuggling aliens); Matter of Alvarez 7Verduzco, 11 I&N Dec. 625 (BIA
1966) (attempting to bring in heroin).

Kamheangpatiyooth v. INS, supra, also recognized the importance of
considering an alien's purpose in leaving the United States, in making
the determination of whether such departure was meaningful. In that
case, the alien's purpose was wholly innocent (visiting his sick mother),
and the only question was whether the length of the trip abroad, and the
planning required for it, rendered it meaningfully interruptive of his
presence here: However, after setting forth its new test for deciding the
meaningfulness of a, departure, the Court in a footnote noted that,
The alien's purpose may have a significance independent of its relevance in deterniining
whether an absence has significantly affected the reasonableness of an inference that
expulsion would be harsh and unexpected. In Penn the Court indicated that readmission following ajourney abroad may cqnstitute an "entry" within the meaning of 101(a)(13)
if the trip is undertaken "to accorhplish some object which is itself contrary to some
policy reflected in our immigration laws." Id. at 1257-1258.
While the cases finding the Fieuti doctrine inapplicable due to an

alien's purpose in taking a trip abroad, or due to his actions while abroad,
have generally involved the smuggling of aliens or of drugs, and not
aliens involved in sham marriages, there is no question that a strong
policy against sham marriages is also reflected in the Immigration and
Nationality Act, and , in the case law interpreting the Act. See, e.g.,
section 204(c) of the Act, 8 U.S.C. 1154(e); section 241(c)(1) and (2), 8
U.S.C. 1251(c)(1) and (2); Lutwak v. United States, 344 U.S. 604 (1953);
Matter of M-, 8 I&N Dec. 217 (BIA 1958). We therefore hold that the
doctrine set forth in Fleuti and Git Foo Wong, supra, will not apply
where an alien departs the United States, no matter how briefly, in
furtherance of a scheme to obtain immigration benefits Waugh a sham
marriage.
The respondent in the present case admittedly entered into a fraudulent marriage. Despite his protestsof complete innocence, the respondent's
testimony regarding this marriage clearly indicates that he recognized
the possibility of problems with his marriage to Perla Pereira.' When he
departed for Mexico in 1976, it was for the purpose .of obtaining an
immigrant visa based on a marriage which he knew was not bona tide,

and which he at least suspected might not be valid for immigration
I See, e.g., these exchanges, at the deportation hearing,between the respondent and his
attorney:
Q. And did you know whether or not, did you think it [the marriage to Perla) was illegal
under Mexican law?
A. I did not know.
Q, So you did not know one way or another whether it was illegal or legal?
A. No.

7

Interim Decision #2853
purposes. Under these circumstances, the conclusion is inescapable that
this departure from the United States was neither casual nor innocent.
It was thus meaningfully interruptive of his 7 years' presence here,
and renders him statutorily ineligible for suspension of deportation.
Having determined that the respondent has not met the 7 years continuous physical presence requirement, we need not reach the issue of
whether he would suffer extreme hardship if deported, or whether he
would merit suspension of deportation as a matter of discretion.
The time originally granted to the respondent for voluntary departure has long since expired. In accordance with Matter of Ch,ouliaris, 16
I&N Dec. 168 (BIA 1977), we will grant the respondent 30 days from
the date of this order in which to voluntarily depart Emil the United
States.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent shall be permitted to
depart from the United States voluntarily within 30 days from the date
of this order or any extension beyond that time as may be granted by

the District Director. In the event of failure to so depart, the respondent shall be deported as provided in the immigration judge's order.

Q. And as far United States law goes? Did you know whether it was legal or illegal?

A. Yeh, no.
Q. So did you actually believe thou [sic) after all the paper work went through that you
were legally married even though you did not live with the wife?
A. I do not Imoivi it is what I said before, I do not know what I was yes or no . . . .
Q. Did you ever feel that your marriage to Perla Pereira was illegal? Just to get an
, answer which can be easily understood.
A.. Yes and no because she use to say that it was legal but I never signed any papers.
(Tr: at 37-38)