Interim Decision #2299

MATTER OF FARMER
In Exclusion Proceedings
A-19815486

Decided by Board June 28, 197k
A lawful permanent resident alien who, subsequent to entry, experienced
psychological difficulties impairing her mental capacities, who was placed
aboard a plane to Italy by her husband with a one-way ticket he purchased for
her, and who remained in Italy for over a month, did not upon her return to
this country make an entry within the meaning of section 101(a)(12) of the
Immigration and Nationality Act, since her impaired mental capacity either
rendered her departure unintended or her presence in Italy involuntary
within the exception clause of that section. Accordingly, she is not subject to
exclusion proceedings.
EXCLUDABLE: Act of 1952—Section 212(a)(2) [8 U.S.C.1182(aX2)}—Aliens who are

insane.
Act of 1952—Section 212(aX3) 18 U.S.C. 1182(a)(3)]—Aliens who
have had a prior attack of insanity.
ON BEHALF OF APPLICANT:

Joseph L. Ventress, Esquire
1229 West First Street
Los Angeles, California 90026

The alien applicant has appealed the decision of an immigration

judge, dated May 14, 1973, which ordered her excluded and
deported pursuant to sections 212(aX2) and 212(03) of the Immigration and Nationality Act. The appeal will be sustained and the
proceedings terminated.
The applicant is a native and citizen of Italy. She is married to a
United States citizen and was admitted to this country as an
immigrant on November 21, 1969. She last departed from the
United States on December 17, 1972, traveling by plane to Italy
with a one-way ticket purchased for her by her husband. She
remained in Italy for over a month, returning to the United States
on February 7, 1973. As a result of her irrational conduct on board
the plane bound for the United States, the applicant was paroled
into this country, and she was temporarily hospitalized upon her
arrival at Los Angeles, California. Exclusion proceedings were
then commenced in March of 1973.
737

Interim Decision #2299
Prior to her exclusion hearing, the applicant was examined by
two physicians employed by the United States Public Health
Service. On February 9, 1973, these physicians issued a Class A
Medical Certificate (Ex. 3) relating to the applicant that described
her as being afflicted with "Schizophrenia reaction—Paranoid
type." The record indicates that the applicant appealed that
medical determination. On February 27, 1973 a three-member
medical board was convened to hear the applicant. The medical
board agreed with the earlier determination regarding the applicant's mental condition (Ex. A). The procedures employed in making the medical evaluation appear to have conformed with the
applicable regulations. See 42 CFR Part 34.
The applicant contests the decision of the immigration judge on
several grounds. However, we need not consider the issues raised
by the applicant's attack on her psychiatric evaluation, because,
regardless of her mental state, she is not properly excludable on
the facts of this case. In order for the applicant to be subject to the
exclusion provisions of section 212(a) of the Act, she must first be
found to be attempting an "entry" as defined in section 101(aX13).
See Matter of Hoffman Arnayo, 13 I. & N. Dec. 750 (BIA. 1971). We
have determined that the applicant is not seeking to make an
"entry" within the meaning of the Act.
The pertinent portion of section 101(aX13) states:
-

The term "entry" means any coming of an alien into the United States,

from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in
the United States shall not be regarded as making an entry into the United
States for the purposes of the immigration laws if the alien proves to the
satisfaction of the Attorney General that his departure to a foreign port or
place or to an outlying possession was not intended or reasonably to be
expected by him or his presence in a foreign port or place or in an outlying
possession was not voluntary....

It is evident from the record that the applicant's psychological
difficulties predated her December 17, 1972 departure from the
United States. Her husband was responsible for purchasing the
one-way ticket to Italy and for placing her aboard the departing
aircraft. We are satisfied that the applicant's lack of mental
capacity either rendered her presence in Italy "not voluntary" or
caused her departure to be "not intended," within the meaning of
these statutory limitations to the general definition of "entry."
Accordingly, she is not subject to exclusion. She may not be
prevented from resuming her residence in the United States.
ORDER: The appeal is sustained and the proceedings are
terminated.

738


Interim Decision #1799

MATTER OF CHAN

IN DEPORTATION

PROCEEDrN08

A-18786380

Decided by Board October

4,

1967

The provisions of section 241(f) of the immigration and Nationality Act, as
amended, do not encompass the ease of an alien who entered the United States
surreptitiously, without making any fraudulent misrepresentation to an immigration officer (having been smuggled in the rear of a delivery track). [Matter
of Cordero Santana, Int. Dec. No. 1694, and Hatter of K—, 9 I. & N. Dec. 085,
distinguished; Errico v. L & Y. Service, 885 U.S. 214 (1966), inapplicable.]
-

CHARGE :

Order : Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)3—Entered
without inspection.
ON BEHALF OF RESPONDENT: Ernest J. Hover, Esquire
409 Semler Building
621 S.W. 8rd Avenue
Portland, Oregon 97204

The respondent, a native and citizen of China, appeals from an
order entered by the special inquiry officer on June 80, 1967 directing
his deportation on the charge that he last entered the United States
without inspection (section 241(a) (2), Immigration and Nationality
Act; 8 U.S.C. 1251(a) (2) ). Counsel on appeal urges error on the part
of the special inquiry officer in denying a waiver under the provisions
of section 241(f) of the Immigration and Nationality Act and for
denying the respondent's application for voluntary departure in lieu
of deportation.
The respondent, a married male alien, 47 years of age, last entered
the 'United States at the port of Detroit, Michigan on July 12, 1962.
He was smuggled into the United States in the rear of a delivery truck
from Windsor, Ontario to Detroit, Michigan. He did not present himself for inspection by an immigration officer and is deportable as

charged in the order to show cause.
The respondent seeks a waiver of his deportability under the provi479

Interim Decision #1799
sions of section 241(f) of the Immigration and Nationality Act. He
cites the Board's decision in the case of Cordero-Santana (Int. Dec.
No. 1694) as authority for his eligibility for a waiver under section
241(f) (supra). The special inquiry officer finds that the respondent is
ineligible for relief under the authority of the Cordero-Santana case
(supra) because unlike Cordero-Santana the respondent is not charged
with being deportable under section 241(a) (1) of the Immigration

and Nationality Act as an alien excludable at the time of entry who
procured a visa or document or entry into the United States by fraud
or misrepresentation. The special inquiry officer reasons that the respondent is an alien not otherwise admissible at the time of entry
because he never satisfied the documentary requirements of the Act.
We agree with the special inquiry officer that the respondent's case

distinguishable from that of Cordero-Santana (supra). Furthermore, we are of the opinion that our decision in Matter of K—, 9 I. & N.
Dec. 585, does not support counsel's claim that the principle set forth
in Errioo v. Immigration and Nagundiection Service, 385 'U.S. 214
(1966), is applicable to the respondent's case. K— was found deportable under the provisions of section 241 (a) (1) as an alien excludable

is

at the time of entry under section 212(a) (9), to wit, an alien convicted of crime and under sect ion 241 (a) (2) as an alien who entered
without inspection. Relative to the entry Without inspection charge.
-

K— entered by falsely claiming to the immigration officer that he was
a citizen of the United States. His entry, therefore, was by fraud in
that he misrepresented his true nationality. We held that section 241 (f)
required the termination of the deportation proceeding since the alien
would have been admissible except for the fact that he made a misrepresentation to secure entry and he became an "otherwise admissible

alien" pursuant to waivers under sections 211(b) and 212(c) of the
Let
The respondent's case, however, is distinguishable from Matter of
K—. While it is true that he entered "without inspection" nevertheless
he entered surreptitiously and made no fraudulent misrepresentation
to an immigration officer. The Supreme Court's decision in Enka
(supra) held that section 241(f) waived any deportation charge that
resulted directly from the misrepresentation regardless of the section
of the statute under which the charge was brought provided that the
alien was "otherwise admissible" at the time of entry. Since the deportation charge here under consideration did not result from any
misrepresentation on the part of the respondent because he entered

surreptitiously, we conclude that the Supreme Court's decision in
Errko is not applicable here.

The respondent applied for the privilege of voluntary departure
480

Interim Decision #1799
under the provisions of section 244(e) of the Immigration and Nationality Act. The special inquiry officer denied the respondent's application on the ground that he (respondent) made no assurance that he
would depart promptly from the United States as required by 8 CFR

244.1.
We have carefully reviewed the record with regard to this finding.
The respondent when questioned as to whether he would comply with
an order granting voluntary departure replied, " I hope the Government will allow me to stay." The special inquiry officer intervened and
informed the respondent, "You are not answering the question." The
respondent replied, "This question I do not know how to answer." The
trial attorney then stated for the record, "We will drop that inquiry.
We submit there is no intention on the part of this respondent .to
depart from the United States, and that he will not go" (pp. 25, 26).

The respondent has a wife and seven children who are lawful residents of the United States. They entered as refugees on December 26,
1962. It is alleged that he operates a restaurant business which has a
volume of $10,000 annually. His father has resided in the United
States at Portland, Oregonlor many years. We are of the opinion that
on this record the grant of voluntary departure in lieu of deportation
is warranted. An appropriate order will be entered.

ORDER: It is ordered that the outstanding order of deportation
be withdrawn and the alien be permitted to depart from the United
States voluntarily without expense to the Government, to any country
of his choice, within such period of time, and under such conditions as
the officer in charge of the District deems appropriate.
-

-

It is further ordered that if the alien does not depart from the
United States in accordance with the foregoing, the order of deportation be reinstated and executed.

481


Interim. Decision #2845

MATTER OF PARODI
In Deportation Proceedings

A-31326731
Decided by Board December 23, 1980
(1) An alien who is granted a recommendation against deportation by a judge in one
criminal proceeding is not, by that recommendation, protected from deportation when
he is convicted in another, separate criminal proceeding, in a different court and under
a different charge, for the same underlying criminal misconduct, unless the second
court also issues a recommendation against deportation.
(2) The plain meaning of section 241(b)(2) of the Immigration and Nationality Act, 8
U.S.C. 1251(b)(2), requires a holding that a judicial recommendation against deportation is effective to protect against deportation only for the crime or crimes for which
an alien is convicted before that judicial tribunal, and does not provide blanket
protection fur au alien, wherever he may face charges for his criminal act.
(3) An alien who was convicted on August 2, 1977, of passing counterfeit Federal
Reserve notes (18 U.S.C. 472), and sentenced therefor to 6 years imprisonment, who
was also convicted for the same acts, on June 30, 1978, of conspiring to commit offenses

against the United States (18 U.S.C.

371), in connection with which conviction the

judge granted' a recommendation against deportation, is deportable under the first
part of section 241(a)(4) of the Act, 8 U.S.C. 1251(a)(4), for the 1977 conviction, despite
the fact that the convictions arose out of a single scheme of criminal misconduct.
(4) A waiver under section 212(h) of the Act, 8 U.S.C. 1182(h), may be obtained in
deportation proceedings by an alien deportable under section 241(a)(4) of the Act, 8
U.S.C. 1251(a)(4), if it is granted nuns pro tune, or in conjunction with adjustment of
status.
CHARGE:

Orden Act of 1952—Sec. 241(a)(4) [8 U.S.C. 1251(a)(4)]—Convicted of crime involving
moral turpitude committed within 5 years after entry, and
sentenced to confinement for a year or more, to wit: passing
counterfeit 920 Federal Reserve notes
ON BEHALF OF SERVICE:
Samuel Der-Yeghiayan
Trial Attorney

ON BEHALF OF RESPONDENT:
Virgil W. Mungy, Esquire

127 N. Dearborn Street
Suite 920
Chicago, Illinois 60602

BY

Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
608

Interim Decision #2845
In a decision dated March 13, 1980, an immigration judge found the
respondent deportable under section 241(a)(4) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(4), as an alien who, within :5 years of
entry, was convicted of a crime involving moral turpitude, and
sentenced to confinement therefor for a year or more. An application
for voluntary departure was, denied. The appeal will be dismissed.
The respondent is a 30-year-old native and citizen of Ecuador who
entered the United States on March 19, 1974, as a lawful permanent
resident. On August 2, 1977, he was convicted in United States District
Court for the Southern District of Illinois, for the offense of passing
counterfeit $20 Federal Reserve notes, in violation of 18 U.S.C. 472. He
was sentenced to 6 years imprisonment for this crime, and served over
2 years before being released on probation. On June 30, 1978, he was
convicted, for the same acts, in the District Court for the Northern
District of Illinois, of the crime of conspiring to commit offenses
against the United States, in violation of 18 U.S.0 371. The presiding
judge in the Northern District granted the respondent's request for a
recommendation against deportation, pursuant to section 241.(b)(2) of
the Immigration and Nationality Act, 8 U.S.C. 1251(b)(2). In an Order
to Show Cause issued on May 18, 1979, the respondent was charged
with deporLability based only on his 1977 conviction; the 1978 conviction was not mentioned. At a deportation hearing begun on. August 27,

1979, and completed on February 22, 1980, the respondent admitted the
allegations in the Order to Show Cause, but denied deportability. He
argued at the hearing, as he argues, on appeal, that the recommendation against deportation issued by the Court for the Northern District
bars his deportation altogether because both the 1977 and the 1978
convictions arose out of a single scheme of misconduct.
It does not appear to be disputed by anyone that both of the respondent's convictions arose out of a single scheme of criminal misconduct.
Although the respondent makes much of this fact, the issue of whether
these crimes arose out of a single scheme is not in fact relevant to the
case. The respondent is charged with deportability under the first part
of section 241(a)(4), which renders deportable an alien who is convicted
of one crime involving moral turpitude committed within 5 years of
entry, and who is either sentenced to confinement or confined for the
crime for 1 year or more.' The "single scheme" aspect of section
' The second part of section 241.(a)(4) relates to aliens who are convicted of two crimes
involving moral turpitude at any time after entry, regardless of whether the alien is
confined for the crimes. so long as they do not arise out of a single scheme for the
deportation of an alien who
is convicted of a crime involving moral turpitude committed within 5 years after
entry and either sentenced to confinement or confined therefor in a prison or
corrective institution. for a year or more, or who at any time after entry is convicted

eno

Interim Decision #2845
241(a)(4) thus does not relate to the present case.
The real issue here is a narrow one: whether an alien who is granted
a recommendation against deportation by a judge in one criminal
proceeding is protected by that recommendation when he is convicted
in another, separate criminal proceeding, in a different court and
under a different charge, for the same underlying criminal misconduct,
and the second court does not recommend against deportation. Although this question appears to be one of first impression, we have
little trouble in resolving it. The section of the Act relating to recommendations against deportation provides that the provisions of section
241(a)(4) shall not apply "if the court sentencing such alien for such
crime shall make . . . a recommendation. . :that such alien not be deported ..." (Emphasis added.) Section 241(b)(2) of the Act. The respondent urges us to construe section 241(b)(2) liberally, and emphasizes Congress' ameliorative purpose in enacting the section, as
well as the general rule that doubts in interpretation of the Act are to
be resolved in favor of the alien. See Fong flaw Tan v. Phelan, 333 U.S.
6, 10 (1948). The respondent also recognizes, however, that acts of
Congress must, where possible, be given their plain meaning: this is a
basic rule of statutory construction. See e.g. Ernst & Ernst v.
Hochfekler, 425 U.S. 185 (1976); Burns v. Alcala, 420 U.S. 575 (1975);
Kelly v. United States, 531 F.2d 1144 (2 Cir. 1976).

Despite Congress' liberal intent, we believe that the plain meaning
of section 241(b)(2) requires us to find that a judicial recommendation
against deportation is effective to protect against deportation only for
the crime or crimes for which, an alien is convicted before that judicial
tribunal.
We note that the District Court judge who issued the recommendation against deportation in the present case recognized the limitations
of his recommendation. Exhibit E consists of a transcript from a
January 18, 1980 hearing before that judge, during which the respondent's counsel sought to clarify whether the judge had considered the
respondent's 1977 conviction when he recommended against deportation. The judge stated that he had considered the respondent's entire
record, including the 1977 conviction. This clarification did not resolve
the underlying problem, however, as the immigration judge understood. "On the other hand," he stated, "my recollection of the statute is
that the recommendation is made by the Judge who enters the judgment and imposes sentence; and I certainly don't have any jurisdiction
to engraft upon Judge Morgan's [the judge presiding over the 1977
of two crimes involving moral turpitude, not arising out of a single scheme of
criminal misconduct, regardless of whether confined therefor and regardless of
whether the convictions were in a single trial; (Emphasis added.)
610

Interim Decision #2845
conviction] judgment a recommendation." We agree with this analysis
of the statute. Section 241(b)(2) speaks only of recommendations made
by the court which sentences an alien for the given crime at issue in
that court. It does not provide blanket protection for an alien, wherever he may face charges for his criminal act. For the respondent in

this case to gain any protection from deportation under section
241(b)(2), he needed to obtain a recommendation against deportation
from the Southern District of Illinois, as well as from the Northern
District. As no such recommendation was made by the Court, and it is
now too late for such a recommendation, 2 we find that the respondent
was properly found deportable under section 241(a)(4). 3
The immigration judge also properly found the respondent ineligible
for voluntary departure. See section 244(e) of the Act, 8 U.S.C. 1254(e).
However, we note that the respondent may qualify for other discretionary relief. The fact that he has been a lawful permanent resident
does not preclude him from applying for adjustment of status under
section 245 of the Act, 8 U.S.C. 1255. Tibke v. INS, 335 F.2d 42 (2 Cir.
1964); Matter of Loo, 15 I&N Dec. 307 (1RA 1975); Matter of Krastman,
11 I&N Dec. 720 (BIA 1966). As he has a lawful permanent resident

wife, he may be able to obtain that relief. In order to qualify for
adjustment of status, an alien must be admissible to the United States.

Section 245 of the Act. The respondent here is presently inadmissible
under section 212(a)(9), 8 U.S.C. 1182(a)(9), because of his convictions.
He may, however, be able to receive a waiver of such excludability
under section 212(h). An alien deportable under section 241(a)(4) is
eligible to receive this waiver nunc pro tune. Matter of Sanchez,
Interim. Decision 2'751 (BIA 1980). Although the respondent in this case
has not departed from the United States since the time of his excludable act, and thus cannot obtain nunc pro tune relief, he could obtain
the relief as an applicant for adjustment. Applicants for this relief
have been held to be in the same position as aliens presenting themselves at the border, seeking entry as lawful permanent residents. See
Harald v. INS, 538 F.2d 1389 (9 Cir. 1976); Campos v. INS, 402 F.2d 758
(9 Cir. 1968); Matter of Smith, 11 I&N Dec. 325 (BIA 1965). Such aliens
A recommendation against deportation must be made at the time of judgment or
sentencing, or within 30 days thereafter. This statutory requirement has been held to be
mandatory. See e.g. Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir.1972);Marinv. INS, 438
F.2d 932 (9 Cir. 1971), cert. denied, 403 V.8.923 (1971); Piperkoffv. Evenly, 267 F.P.d 72 (2
Cir. 1959); Matter of Plata, 14 I&N Dec. 462 (BIA 1973).
' The respondent does not appear to dispute that his conviction in the Southern
District was for a crime involving moral turpitude, as required by section 241(a)(4). We
note for the record that fraud is a specifically stated element of the respondent's
conviction under 18 U.S.C. 472, and moral turpitude was thus correctly attached to that
crime. See Jordan v. DeGeorge, 341 U.S. 223 (1951). See generally Matter of Martinez,16
I&N Dec. 336 (BIA 1977).

Interim Decision #2845
are therefore both subject to the exclusion provisions of section 212(a)
and eligible for waivers of excludability. See Matter of Smith, id.
Recognizing this, we have held that a 212(h) waiver may be obtained in
deportation proceedings if it is granted in conjunction with adjustment of status. See Matter of Bernabella, 13 I&N Dec. 42 (BIA 1968).
We note that the respondent has a United States citizen child by his
first wife, whom he helps to support, and also that his present wife
testified at the hearing as to the hardship she might suffer if her
husband is forced to leave the United States. These would of course be
factors to consider, should the respondent apply for a 212(h) waiver
and section 245 relief. As no steps have as yet been taken to seek such
relief, however, and as we have rejected the respondent's arguments
regarding his deportability, this appeal must be dismissed.
ORDER. The appeal is dismissed.

612


Interim Decision #2838

MATTER OF PIROGLU

In Deportation Proceedings
A-20599693
Decided by Board November 26, 1980
(1) Section 101(f)(7) of the Immigration and Nationality Act, 8 U.S.C. 1101(0(7),
precludes a person from establishing good moral character if he was confined, as a
result of conviction, to a penal institution for an aggregate period of 180 days or more,
regardless of whether the offense for which.he was confined was committed within the
period for which good moral character must be shown.
(2) The respondent, whose prison term resulted from a violation of probation rather

than from an original sentence to incarceration, is nevertheless barred from establishing good moral character on the basis of his confinement and is, therefore,
statutorily ineligible for voluntary departure.
CHADOR'
Order Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant student—
remained longer than authorized
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

David Carliner, Esquire

Gerald Hurwitz

931 Investment Building
1511 K Street, N.W.
Washington, D.C. 20005

Appellate Trial Attorney
Ernest H. Hupp

Trial Attorney
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members

In a decision dated April 3, 1978, the immigration judge found the
respondent deportable under section 241(a)(2) of the Immigration and
Nationality Act, 8 1251(a)(2), as a nonimmigrant who remained
longer than permitted, and denied his application for voluntary departure. The respondent has appealed from that decision. The appeal will
be dismissed.
The respondent is a 31-year-old native and citizen of Turkey who
entered the United States in 1973 as a nonimmigrant visitor for
pleasure.' The record reflects that he was married to a United States
' The respondent's Arrival-Departure Record (Form 1-94) states that the respondent
entered the United States on March 19, 1973, whereas the Order to Show Cause alleges

578

Interim Decision #2838
citizen from whom he is now divorced. It further indicates that the
respondent is the father of a United States citizen child born to a
woman other than his wife while he was married. At oral argument,
counsel for the respondent stated that the respondent has now married
the mother of his child.
Included in the record is a record of conviction in the General
District Court of Arlington County, Virginia, which indicates that the
respondent was found guilty of discharging a firearm in public and was
fined $25 plus costs on September 2, 1975. The record also contains a
Judgment and Probation/Commitment Order from the United States
District Court for the District of Maryland, dated June 13, 1977, which
orders that a fine previously imposed on the respondent for a second
conviction be suspended, that probation be terminated, and that he
serve 9 months in prison.
At deportation proceedings, the respondent conceded deportability a
and requested voluntary departure. The immigration judge denied the
respondent's application for relief from deportation on the ground
that the respondent was statutorily ineligible as being precluded under

section 101(f)(2) of the Act, 8 U.S.C. 1101(f)(2), from establishing good
moral character because of his adultery. He further stated that he
would deny voluntary departure as a matter of discretion since the
respondent admitted that he had been convicted twice and that he had
insufficient funds to return to Turkey.
At oral argument, counsel for the respondent argued that the immigration judge erred in finding that the respondent was statutorily
ineligible far voluntary departure because he was not, in fact, guilty of
committing adultery. It was further asserted that the immigration
judge's ruling on discretionary grounds was also in error.

After responding to these arguments, the Appellate Trial Attorney
noted that the respondent had been confined in a penal institution for
more than 180 days as a result of conviction. He, therefore, argued that
the respondent was precluded from establishing good moral character
by section 101(f)(7) of the Act. On rebuttal, counsel for the respondent
contended that since the re spondent was only required to serve time in
prison because of his inability to pay a fine, it would be unfair to
penalize him for his poverty.
Our review of the record confirms that the respondent did, in fact,
admit to having served 9 months in prison. He stated that he was
originally sentenced to a fine and a period of probation, but was unable
that his entry was made on April 19, 1973.
Although deportability was conceded at the hearing, the respondent challenged the

immigration judge's finding on his Notice. of Appeal (Form I-290A). However, at oral
argument, counsel for the respondent stated that the question of deportability was not
contested on appeal.

579

Interim Decision # 2838
to pay the fine and, being afraid to tell the court, violated his probation.
Section 101(f)(7) of the Act provides as follows:
(f) For the purposes of this Act—No person shall be regarded as, or found to be, a
person of good moral character who, during the period for which good moral
character is required to be established, is. or was—
(7) one who during such period has been confined, as a result of conviction, to a
penal institution for an aggregate period of 180 days or more, regardless of
whether the offense, or offenses, for which he has been confined were committed within or without such, period.

The language of the statute is clear that confinement for the
prescribed period resulting from a conviction bars a finding of good
moral character. It makes no exception for a prison term resulting
from violation of probation rather than from an original sentence to
incarceration' Absent a showing that Congress intended to make such
a distinction, we are unwilling to so limit the statutory mandate that
persons within its scope should be barred from establishing good
moral character. Moreover, we have previously noted that the rationale behind the statute was that a person who has served a jail term of a
specified length is not worthy of special exemptions from the penalties
of the immigration laws. See Matter of B—, 7 I&N Dee. 405 (BIA 1957).
We, therefore, conclude that the respondent is precluded by section
101(f)(7) from establishing good moral character, which renders him
ineligible for voluntary departure.
Inasmuch as the respondent is statutorily ineligible for voluntary
departure under section 101(f)(7) of the Act, we need not reach the
issue of his ineligibility based on his alleged adultery. Accordingly, the
appeal will be dismissed.
ORDER. The appeal is dismissed.

In Matter of Gantus-Bobadilla,13 MN Dec. 777 (BIA 1971), we found that a sentence
to probation without incarceration did not bar a finding of good moral character under
section 101(f)(7) of the Act. That case is distinguishable from the instant case in that the
respondent there was never actually confined as required by the statute.

580


Interim Decision #2418

MATTER OF LAWRENCE
In Deportation Proceedings
A-13637499

A-20493015

Decided by Board August 4, 1975
(1) The term "temporary" as used in section 101(a)(15)(B) of the Immigration and
Nationality Act does not contemplate a potentially limitless visit to the United States.
(2) Respondents, natives and citizens of Canada, who, at the time of their last entry as
nonisnmigrarit visitors for business, did not seek .to enter the United States for a
reasonably shcrt and relatively definite period of time and were not coming here with
any limited goal in mind but, instead, were entering to manage the ]ay-to-day operations of a United States enterprise, the business activities of which do not call for their
return to Canada, were not entitled to enter as visitors for business and are deportable
under section 241(a)(1) of the Act because excludable at entry as immigrants not in
possession of valid immigrant visas.
CHARGE.

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]--Excludable at time of
entry under section 212(a)(20) [8 U.S.C. 1182(a)(20)1-immigrant not in possession of valid immigrant visa (both
respondents)
ON BEHALF OF RESPONDENTS:

ON BEHALF OF SERVICE:

Robert 0. Wells, Jr., Esquire

Ray A. Wolstenholme
Acting Trial Attorney

3300 Seattle-First National
Bank Building
Seattle, Washington 98154

In a decision dated April 14, 1975, the immigration judge found the
respondents deportable, but granted them the privilege of voluntary
departure. The respondents have appealed from that decision. The
appeal will be dismissed.
The respondents, husband and wife, are natives and citizens of
Canada who last entered the United States in January of 1975 as visitors
for business. The Service alleges that they did not then qualify as
nonimmigrant, visitors for business, because they were entering to work
and to remain indefinitely in the United States. Unless the respondents
qualified as business visitors at the time of their last entry, they are
418

Interim Decision #2418
presumed to have been immigrants and are now deportable as charged
by the Service. See section 214(b), Immigration and Nationality Act.
Through a Canadian holding company, the respondents own 40 percent of the stock of Home Care, Inc. (Home Care)i, a company incorporated under the laws of the state of Washington in February of 1973.
Home Care is in the business of purchasing improved real property,
primarily single family residences, with the expectation that aprofit can
be made on the resale of the property after a period of market appreciation. The holding period for a particular piece of property is indefinite; ,
however, a holding period of between two and five years is contemplated. During this period, Home Care rents the properties. Home
Care's financing appears to come both from Canadian lending institu-, ,
The male respondent appears to be the person primarily, if not solely,
responsible for the activities of Home Care. In the two and one , half
years Home Care has been in existence, helms inspected and purchased
homes, contracted for their renovation, shown and rented them, and.
generally managed the operations of Home Care. The male respondent
has been assisted in these matters by his wife; however, neither respondent draws a salary from Home Care. The respondents claim to live off
the proceeds of previous investments in Canada, and they expect that'
their present efforts will be rewarded in the form of profits from the saleof the houses owned by Home Care.

Section 101(a)(15)(B) of the Act defines a nonimmigrant business
visitor as,
an alien . . . having a residende in a foreign country which he has no intention of
abandoning and who is visiting the United States temporarily for business . . . .

The term "business" as used in section 101(a)(15)(B) has been held not to
of a commercial character. See Karnalth, v. U.S. ex rel. 4lbro, 279 U.S. 231(1929); Matter of Hira, 11 I. & N. Dec. 824 (BIA 1965, 1966; A.G. 1966).
The Service does not contend that the activities of the male respondent
fail to come within the definition of the term "business." However, the
Service alleges that the respondents do not have an unabandoned
foreign residence and that their visit to the United States cannot be
considered temporary. We need not resolve the question of whether the
respondents have an unabandoned residence in Canada because we
agree with the Service that their visit cannot be characterized as temporary.
There are no inflexible rules to be applied for determining what' is
"temporary" within the context of a business visit. In the past, we have
indicated that the nature of the business activity itself need not be
temporary. See Matter of Hira, supra. However, we have never held
include ordinary labqr for hire, but is limited to intercourse

419

tionsadfrmec tgshldbyerofthms.

Interim Decisiod #2418
that an alien could qualify as a business visitor if his business activities
almost exclusively involved the fulltime management of a United States
enterprise.
The male respondent's testimony indicates that he has devoted all of
his time in recent years to the development of Home Care (Tr. p. 62).
He testified tl at at the time of his entry he had no fixed date on which he

intended •o:leave the United States (Tr. p. 6), and he indicated in a
sworn statement taken before an officer of the Service that he hopes his
position with Home Care will be permanent (Exh. 3).
The male respondent did not seek to enter the United States for a
reasonably short and relatively definite period of time. Nor was he
coming here ivith any limited goal in mind. He was, instead, entering to

oversee the dE.y-to-day operations of Home Care for an indefinite period
of time. Furtherinore, the male respondent's business. activities in the
United States do mot call for his return to Canada.
It appears that the - male respondent might easily decide to remain
here permanently-to supervise the day-to-day operations of Home Care,
even though at present he may choose to return to Canada on a regular
basis, The term "temporary" as used in section 101(a)(15)(B) certainly
does not contemplate a potentially limitless visit to the United States.
Themale respondent was not entitled to enter the United States as a
business visitor on the date of his last entry. Because of the female
respondent's direct participation in the

affairs

of her husband, her case.

is entirely dependent upon the result in his.
Both respondents have significantly lessened their involvement in
routine matters affecting Home Care since the institution of these
proceedings. However, the record still indicates that the male respondent's continued presence in the United States is required to supervise
the day-to-day activities of Home Care. Furthermore,' the question
before us is whethek the respondents were admissible as business visitors at the time of their last entry, not as of today. We find that
deportability has been established by clear, convincing, and unequivocal
evidence.

ORDER: The appeal is disMissed.

Further order: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily
within 48 days frOm the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failuke so to depart, the respondents shall be deported as provided in the
immigration judge's order.

420


Interim Decision #4424

KM= of VA8CABBLT..0

In Section 212(g) Proceedings
A-188265U

Deckled

serisC1wrgeNovember27,796
798/,

In the absence of persuasive, appealing factors, application for waiver, pursuant to section 212(g), Immigration and Nationality Act, as amended, of
excludability under sections 212(a) (9) and (10) of the Act, is denied, In the
exercise of discretion, in the case of an alien whowas convicted in Italy in
104s of the crime of continued extortion. In association with•14 other men
in an operation bearing strong resemblance to the activities of an organized
Criminal band.

The applicant is a male, native and 'citizen of Italy, born in
Aragona, .Agrigento, Italy, on June 14, 1902. He was married on
April 23, 1921, in Aragona to Carmelo, Salamone, a fifty seven year
old native and citizen of Italy.. They live together in Vittoria,
Ragusa, Italy.
This is the first and only marriage for both the applicant and his
spouse. Satisfactory documentary evidence of marital history and
the naturalization of his son, Domenico Vaccareno, was presented.
The applicant has the following children, all born in Italy: (1)
Maria, born January 25, 1925; (2) Vincenzo, born August 30, 1928;
and (3) Domenico, born March 8, 1931.
Maria was lawfully admitted•to the United States for permanent
residence three years ago and resides with her resident -linen spouse
in Chicago, Illinois. • Vincenzo is married to a school teacher and
resides in Vittoria, Ragusa, Italy. Domenico, married to a United
States citizen, was naturalized in 1963 and resides in Patterson, New
Jersey.
The applicant, who has never been to the United States, was
found by the consular officer to be eligible for a visa, for permanent
residence in all respects except for excludability under sections 212
(a) (9) and (10) of the Immigration and Nationality Act.
In testimony before an officer of this Service on October 6, 1964,
-

21

-Interim Decision #1424

:at Palermo, Italy, the applicant testifie41 that the following record of
conviction related to him:
On June 20, 1948, sentenced by the Court of Assizes of Eagan to Ave
years and four months' Imprisonment and twenty-four thousand lire fine for
continued extortion.

According to the official court record, the applicant was accused
of having written threatening letters for the purposes of extortion,
and of attempted kidnapping, in association with fourteen other men
in an operation bearing strong resemblance to the activities of an
organized criminal band. The depredations of this band caused
wide-spread terror in the southeastern portion of the island of Sicily
during 1945 and 1946. Fifteen members alleged to have been members of the band were arrested and eventually brought to trial on
June 26, 1948, in the Court of Assizes, Ragusa. Among the crimes
for which various defendants were convicted were, extortion letters,
attempted kidnapping, destruction of property by means of military
mines, dynamite, and hand grenades. The applicant was convicted
of aggravated extortion, in that, he had been involved in the
forwarding of threatening letters to the victims. The court noted
in its decision that the applicant had received a sum of three
hundred thousand lire from one of the victims and had kept, for his
own use, a portion more than that to which he was entitled, thus
cheating his co-conspirators. The court record was replete with
accounts of activities which are the mark of criminal conspirators,
zuch as the bombing and dynamiting of homes of intended victims

who were reluctant to accede to the demands of the extortionists.
Of the numerous crimes ascribed to the fifteen members of the band
arrested and tried, the applicant was convicted of aggravated extortion. He was sentenced to five years and four months' imprisonment
and a fine of twenty-four thousand lire.
In describing the circumstances surrounding the conviction, the
applicant testified that, for business reasons and because he did not
enjoy "good relationship" with the local police, he had been the
innocent victim of machinations by business associates and the
police. He emphatically denied any complicity in the crime for
which he was convicted, or any association with the fourteen codefendants in his trial. He testified further that he had never
committed the crime for which he was convicted, nor any other act
or offense which might render him inadmissible to the United States,

or subject him to criminal prosecution.
The applicant testified that he is a truck-farmer, operating his
own small acreage of vegetables. In 1963 he earned a total of five
hundred thousand lire, plus the vegetables hit own family consumed.
22

-

Interim Decision #1424

He stated tha•in the event he is granted a waiver, his wife would
accompany him to the United States. According to the applicant,
his son Vincenzo, who is married to a school teacher, intends to remain in the small town of "Vittoria close to the home occupied by the
applicant and his spouse. He testified that since his son, Domenico,
had been admitted to the United States, he had received nothing in
the way of financial support from him. He claimed, however, to be
self-sufficient with his earnings.
The applicant's son, Domenico Vaecarello, was interviewed by a
Service officer on March SO, 1964, at Newark, New Jersey, and con
roborated his statements relative tv their family history. He stated
that he was aware of his father's ground of excludability, but that
it was his desire that he be permitted to join him in the United
States.

Domenico Vaecarello testified that he is steadily employed and has
other substantial assets, and that he was willing and able to assume
the financial obligation to support the subject in the event he is
admitted to the United States.

Ho testified further that the hard-

he was suffering involved the age of the subject and the subject's spouse, and the difficulty that they were experiencing in sus:taining themselves. He added that he would like to have the subject
and his wife come to the United States so they could see their graidchild. He also indicated it would be an additional financial burden
to him if, in addition to supporting his own family, he might have to
ship

contribute to support his parents in Italy.

Records of other investigative agencies Were checked with negative
results regarding the applicant and his son.
The ground of excludability which presently bars the applicant
from admission was the result of a conviction of a crime stemming
from activities of a group of individuals who evidently had banded
together for the express purpose of planning and executing crimes
of a nature peculiirly adapted to the gang concept. The methods
commonly used by the gang to achieve its objectives were those extremely repugnant to men of good will, and familiar with democratic
traditions. The vicious threat of physical injury, kidnapping, or
damage to property, has been recognized for many years us the evil
tool of this particularly despicable type of criminal. Manifestations
of this type of criminality are all too evident today, unfortunately,
both in Sicily and in the United States.
In spite of the weight of evidence which led to the conviction of
the applicant with his fourteen co-defendants, he stoutly maintained
that he had been innocent and that he was the victim of the animosity of individuals because of business and primal reasons. The
28

Interim Decision #1424

•
official court reoord strongly contradicts this self-serving statement.
The applicant's intransigent attitude concerning his conviction, and
his attempt to re-try his case before the interviewing officer would
tend to invalidate an assumption of his reformation
, and rehabili-

tation.
In view of the type of criminal background relating to the applicant, it is not entirely certain that Ka admission to the United States
would not be contrary to the national welfare, safety, and security
of the nation. With regard to the hardship alleged by the applicant's son, it cannot be regarded as within the purview of the "extreme" hardship oontemplated by the statute. The applicant recidea
adjacent to a son who has never actually been seperated from him.
In view of the absence of persuasive, appealing factors and the
presence of many that are derogatory, the application will be denied
as a matter of discretion.
ORDER: It is ordered that the application of Domenico Vaccarello for a waiver of exeludabllity under paragraphs (9) and (10)
of section 212(a) of tilt; Immigration and Natio silty Act, be and is
,

tlenied, pursuant to the authority contained under section 212(g) of
the Immigration and Nationality Act.

424


Interim Decision .#1437

MATTER OF IC=
In Visa Petition Proceedings
A-14243622
Decided by Regional Commissioner December 21, 1964
been previously approved for petitioner -in belief of
eligible orphans, as defined in section 101(b) (1) (F), Immigration and
Nationality Act, as amended, notwithstanding one of the orphans died subsequent to entry, section 205(e) of the Act precliides approval of a third
vim petition by same petitioner for an eligible orphan, absent the factor of
prevention of separation of brothers and sifters.

Two visa petitions having

Discussion: This case is before me on appeal from the District Director, San Francisco, who denied the petition on November 20, 1964
as follows:
Your petition has been denied.. You have previously filed visa petitions
■

under section 205(b) of the Immigration and Nationality Act in behalf of two
orphans who were subsequently admitted to the United States. Section 205
(c) of the Immigration and Nationality Act states "not more than two such
petitions may be approved for one petitioner unless necessary to prevent the
separation of brothers and asters".

The petitioner and his wife, both adult citizens. of the United
States, reside in Chico, California where the petitioner is employed
as, 'a watchmaker and his wife as'a school-teacher. They live in a
modern home in Chico. Their combined income exceeds $10,000.00
'yearly. They have three children of their own ranging in. age from
12' to 16 years. Their ability to properly support and maintain the
orphan for whom petitioned is not in question.
The petitioner had previously petitioned for two orphans who
were subsequently admitted to the United States on the basis of two
separately approved petitions as eligible orphans_ One of these
orphans is presently residing with the petitioner. This orphan is
an 18-month-old Korean girl born May 28, 1963 who was admitted
to the United States in. the comptiny of petitioner as his adopted
daughter on November 80, 1963 at Anchorage, Alaska.
69

Interim De:cision #1437
Suhsequently, a second visa petition was filed by the Petitioner and
approved for a second Korean orphan girl born May 24, 1963. This
child was admitted, on the basis of the approved petition on May 1,
1864 at Seattle, Washington. A death certificate has been presented
to show that this second adopted orphan died on June 5, 1964 of
pneumatic bronchitis in Chico, California.
• The petitioner filed a petition for a third child, the beneficiary of
the petition now before me on *appeal, on October 30, 1964.
Section 205(e) of the Immigration and Nationality Act, as
amended, provides in part that: "Not more than two such petitions
may be approved for one petitioner in behalf of a child defined in
section 101(b) (1) (E) or (F) unless necessary to prevent the sepa-

ration of brothers and sisters". Section.101(b) (1) (F) of the Imniigretion and Nationality' Act defines a child as: "A child who is an
eligible orphan adopted abroad by a United States citizen and spouse
or coming to the United States for adoption by a United States
citizen and spouse". The beneficiary falls -within this definition,
but is not a brother or sister of the. previously adopted orphans.
The statute precludes the granting of the instant petition.
In the decision in Matter of P—, 9 L & N. Dee. 750, decided by the
Board June 21, 1962 it is stated: "We, therefore, construe the Context of section. 205(c) of the 'Immigration and Nationality Act to

mean simply that a limitation of two is placed on the number of visa
petitions that may be approved by the Attorney General for one
petitioner in behalf of a child adopted, or an eligible. orphan child,
as those terms are defined in section 101(b) (1) (E) and (F) of the
Act. We find that Congress has, in current legislation, provided a
visa petition procedure for eligible orphan children by reason of
relationship; and that only orphan children who are the beieficiaries
'of visa petitions come within the.provisions of section 205(c) to limit
two orphan children to each petitioner. Any other interpretation
or construction of the language in the statute, it seems to us, would
be reading meaning into it that is not there".
Two visa petitions for eligible orphans have previously been
'approved for the petitioner in the instant case. The approval of a
third visa petition for an eligible orphan by the same petitioner
statutorily prohibited. The decision of the District Direitor was
proper. The appeal must be dismissed.
ORDER; It is ordered that the decision of the District Director
be affirmed and the appeal is dismissed.

70


Interim Decision #1981

MATTER OF Au, YIM AND LAM

In Deportation Proceedings
A-15759505
A-15759506
A-15759507

Decided by Board June 20, 1969
Where Service investigators, having reason to believe aliens illegally in the
United States were employed in a restaurant, entered the restaurant to
question the employees; they limited their questioning to whether the
person was an alien and, if so, whether he was legally in the United States;
no force was used to enter or to interrogate and there was no harassment of
employee or management, the investigators, upon seeing persons obviously
of foreign descent attempting to flee, acted reasonably in taking steps to
detain them for queztioning as to their immigration status. Having determined they were aliens illegally in this country, it was reasonable to arrest them without a warrant, as clearly they were aliens likely to escape
before a warrant could be obtained, and evidence obtained as the result
thereof was incident to a lawful arrest and admissible in evidence in de•
portation proceedings.*

CHARGES :
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 12b1 (a) (2)]—In United
States in violation of law, entered after being re'
fused permission to land as crewman. (AU)
Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Crewmanf
remained longer. (YIM and LAM)
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENTS:
David Carliner, Ebquirc
902 Warner Building
Washington, D.C. 20004

Irving A. Appleman
Appellate Trial Attorney'

The special inquiry officer ordered the respondents deported on
the charge which relates to each. They appeal on the ground thAt
the evidence to establish deportability was obtained after an ille gal arrest and search. The appeals will be dismissed.
* Affirmed,

see 445 F.2d 217 (C.A. D.C., 1971).

294

1

Interim Decision #1981
The claim that there was an illegal arrest and search requires a
presentation of the facts in detail. Except for one matter there is
little conflict as to the facts.
Service investigators, believing that one or more Chinese aliens
illegally in the United States were employed in a restaurant located in a hotel building, decided to enter the restaurant to question the employees as to whether they were aliens illegally in the
United States. They had gone . to the same restaurant for the
same purpose on two or three occasions in the past year. They
did not have a warrant of arrest.'
About 5:20 p.m. on October 21, 1967, eight or nine Service investigators went to the hotel building. They were Burns, Pod-

rasky, Taylor, Lamoreaux, Kelley, Stephanadis, Smith and one or
two more (p. R-18). With the permission of the hotel employee
stationed there, Kelley and Lamoreaux entered the hotel by a side
or rear door. Kelley remained near the door. He had a view of
some hallways. He would have stopped anyone who tried to leave
hurriedly. Lamoreaux, traveling through the hallways of the
hotel, made his way to a restaurant room which had a door on a
hallway. The door was open, Lamoreaux stationed himself in the
hallway so that he could see into the room (pp. R- 19, R - 21, R - 60,
R - 62). Burns, Podrasky and Taylor entered the restaurant by
the front door. The disposition of the other investigators is not
shown. The three who entered by the front door approached
Park, the assistant manager, who was in charge. Burns and Podrasky identified themselves and carried on the conversation. Taylor took no part of the conversation (pp. 20-21, R-4) . They were
interrupted briefly when Park received a phone call. There is a
conflict in the evidence as to what happened next. Park testified
that Podrasky identified himself but did not ask for permission to
go to the kitchen; that while he was on the phone, Podrasky said
that he was from the Immigration Service and he has to go into
the restaurant and question the employees; that Podrasky went
on without waiting for permission; that as soon as he had hung

up the phone, he dashed after Podrasky and offered to set up a
small table in the dining room, to which he would send the employees whom Podrasky wanted to see; that Podrasky did not answer, but asked for the direction of the kitchen; that he pointed
1 The District Director has discretionary authority to issue an administrative warrant for the arrest of an alien, if he determines that the arrest is
necessary or desirable. 8 CFR 242.2(a). Ordinarily, the District Director
does not issue a warrant of arrest until after the alien has been questioned
and it is determined that a prima facie case of deportability exists.

295

Interim Decision #19R1

out the direction; and that he did not tell Podrasky he could not
go into the kitchen (pp. 39-43; 47-49). The investigators, on the
other hand, testified that after Park hung up, they told him that
they wished to talk to the employees, and that Park gave permission to go to the kitchen to talk to the employees (pp. 20-21, 31,
R - 2 — R -4, R -47, R - 70, R - 72 —R - 73, R - 75). Podrasky testified h e
could not recall Park offering to bring the kitchen employees to
the dining room so that he could talk to them.
In any event, on the way to the kitchen, Burns stopped to talk
to an employee. He saw a Chinese person, garbed in a kitchen
worker outfit, running toward the front door. He ran after,
stopped him at the door, identified himself, and invited him to
come to the kitchen to talk. This person is respondent, Yim Tsz
Ki (pp. 21-23, R-4—R-5). As Burns and Yim were going to the
kitchen, a second Chinese person, dressed like the first, headed
for the front door. Burns stopped him and also invited him to
come to the kitchen. This person is respondent, Lam Sai Ting
(pp. R-5, R-8). On the way to the kitchen, Burns and the two
employees passed a room being remodeled to provide additional
dining space. A door of this room led to the hallway of the hotel.
Lamoreaux was standing in the hallway at the door. Lam ran for
the door. Burns followed. Lamoreaux intercepted Lain. He found
Lam could speak no English, but did learn that he was off a ship.
He apparently determined at this time to take Lam into custody.
All went to the locker room. There, Lam again admitted to Lainoreaux that he had jumped ship. Yim admitted to Burns that he
had jumped ship. Burns considered the admission, a sufficient
basis for detaining Yim (pp. 22 - 24, 28, R-7—R-9, R-14—R-16,
R-26—R-27).

Taylor and Podrasky had gone on to the kitchen. They questioned employees there. Taylor noticed that an employee walked
to the rear of the kitchen, where a door led to the hallway of the
hotel. The employee spoke to two Chinese employees who were
preparing food for their own consumption. They dropped their
food and ran out through the rear exit. No inspector was stationed there. Taylor ran after them. They went in different direr.
tions. One was out of sight; he was not apprehended. Taylor
caught up with the other, stopped him by taking his arm, and
asked him to return to the kitchen. He did not hold him as they
walked back. The chase took him past Kelley, standing off the
hallway in which the chase took place. Kelley took no part in the

chase. The third person is respondent, Au Yi Lau. In the kitchen,
with the help of an employee, Taylor learned that Au had come
296

,

Interim Decision

#1981

off a ship and had something in the locker room which might help
to identify him. He walked Au to the locker room and left him
with Burns and Lamoreaux, telling them that Au appeared to be
a crewman, that he had tried to run, and that he might have
something in the locker. Taylor returned to the kitchen to continue questioning the other employees (pp. R-70—R-74,
R-77—R-79, R-81—R-82) .
DeLucian, the kitchen supervisor, testified that when the investigators entered, he turned his back on them thinking they were
part of the management staff, that suddenly he saw employees
taken out to the locker room through the rear exit, that the investigator had come through the rear door, and that he had not been
approached for permission to question the employees. He testified
that he made himself understood to the respondents in broken
English. Park had testified that respondents could speak no English: he made himself understood by writing Chinese characters.
The one illegal alien, known by name, who the Service thought
was working in the restaurant, was not found and is still the object of search (pp. R-51—R-52).
The investigators took the three respondents to the office of the
Immigration Service. There, friends came to visit them (pp. 27,
R-10). Fingerprints were taken (p. 12). Translators were obtained and statements, taken: Kelley took Yim's (Ex. 2), Lamoreaux took Lam's (Ex. 2), Burns took Au's (Ex. 4) (pp. 16-17,
25-27, R-10, R-27—R-29, R-32—R-44, R-52—R-56, R-58—R-59,
R - 62--R - 66). At the Service office, warrants of arrest were issued
and served about two hours after the aliens were located (p. 14).
An investigation at the same place subsequent to the one in
question, resulted in the apprehension of other aliens illegally in
the United States (p. R-67) .
Deportation hearings were started on November 1, 1967. At
the hearings, which were consolidated, the respondents remained
mute. The Service introduced the statements made by the respondents. The investigators who took the statements and an interpreter testified as to the taking of the statements and as to
their belief that they represented what the aliens had stated. As
to each alien, the Service introduced a seaman identity book and
a seaman discharge book (Yim, Ex. R-1; Lam, Ex. R-3; Au, Ex.
R-2); and crewman landing certificates (Yim, Ex:4; Lam, Ex. 3;
Au, Ex. 2). A certificate of vaccination was also introduced for
Yim. The respective identity and discharge books contain photo-

297

Interim Decision 1/- 1981

graphs which the special inquiry officer found to be good likenesses of the respondents. Counsel does not believe the likenesses
exist (pp. R-6--R-7, R-11, R-30).
If the evidence presented by the Service is competent, it establishes the respondents are deportable aliens. See Shing Hang Tsui
v. INS, 389 F.2d 994 (7 Cir., 1968). The statements of the respondents alone establish that they are aliens illegally in the
United States. 2 Apart from the statements, the landing certificates establish alienage and the illegality of stay. The seaman's
books establish identity of the respondents. There must be considered the presumption that the alien in deportation proceedings.
who has failed to show the manner of his entry, is in the United
States in violation of law. Au Shin Pang v. INS, 368 F.2d 637 (3
Cir., 1966) cert. denied 386 U.S. 1037.
Counsel contends the evidence presented by the Service cannot
be used because it was illegally obtained since Park's testimony
reveals that the investigators were not given permission to enter
the premises to conduct a "search" and since the Service had no
right to approach at least the alien in the kitchen. He contends the
testimony of Park should be credited rather than the testimony
of the investigators because Park is a disinerested witness, but it
is in the interests of the investigators to show they were performing their dutues. He also contends the Service must establish
that permission was granted by evidence that is clear, convincing
and unequivocal. The appellate trial attorney emphasizes that
Park's own testimony reveals both that he consented to the investigators talking to the employees and that he did not deny the investigator the right to go to the kitchen. The appellate trial attor- .
ney also relies upon the corroboration found in the testimony of
the Service investigators.
It is undisputed that the investigators had permission to be in
the restaurant. The only issue is whether they had permission to
2 The statements reveal the following: Yim, a 33-year-old native of China,
admitted as a crewman on June 21, 1963, (a typographical error: 1967 was
obviously meant) deserted the ship at Baltimore on July '7, 1967. Lam, a 42year-old native and citizen of China, admitted as a crewman about July 12,
1967, deserted his ship about July 15, 1967. Au, a 48-year-old native and citizen ur China, alter Ming refused permission as a crewman, deserted his
ship on July 12, 1967. We have carefully examined the record as to the manner of taking of the statements. We find the statements were made by respondents with full knowledge of their constitutional rights to remain silent
and to consult with attorneys, that there was no element of duress, and that
the interpretatiOn was properly made. None of the aliens testified that the
statements are inaccurate in any material matter.

298

Interim Decision 4P1981
0.-o to the kitchen. We believe the Service has established that
Park gave the investigators permission to speak to employees of
the restaurant at their jobs and that he made no exception as to
the employees who were in the kitchen. The investigators who
were with Park are of the belief that he granted them permission
to question the employees in the kitchen. Podrasky testified that
he could recall no offer to bring the aliens out of the kitchen; and
that he was invited into the kitchen (p. R-51). Taylor was of the
belief that Podrasky had received permission to go to the kitchen
(p. R-75). Burns testified that Podrasky asked Park for permission to speak to the employees and that in response, Park led the
way to the kitchen (pp. 11-41--R-5). `The special inquiry officer,

who observed the witnesses testify, resolved the conflict in favor
of the Service. We see no reason on this record for reversing his
finding.

Moreover, no respondent was approached in the kitchen. Two
respondents, Yim and Lam, were approached in the restaurant-no issue is raised about Park granting the Service permission to
talk to the employees there. Au was approached in the public
hallway of the hotel where permission to enter, if it was needed,
was obtained when the hotel employee stationed at the door permitted the Service investigators to enter with knowledge of their
employment. (See Peters v. New York, 18 N.Y.2d 238, 273
N.Y.S.2d 217, 219 N.E.2d 595, hallway in apartment house a publie place.)
While we have considered the question of permission—and we
believe that Service employees should ask for permission as a
matter of practice the fact is that law enforcement officers are
not required to obtain permission to enter a public place, like a
restaurant, to question people there. Amaya v. United States, 247
F.2d 947 (9 Cir., 1957) cert. denied 355 U.S. 916. See Terry v.
Ohio, 392 U.S. 1, 34 (White, J., concurring) ; Green v. United
States, 259 F.2d 180 (D.C. Cir., 1958) cert. denied 359 U.S. 917
(1959). Furthermore, the power of an immigration PITIpinyPt3 to
question appears to be even broader than that possessed generally
by law enforcement officers. Section 287 (a) (1) of the Act (8
U.S.C. 1357 (a) (1) ) provides as follows :
—

Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—
(1) to interrogate any alien or person believed to be an alien as to his
right to be or to remain in the United States;

Under this statute, it would appear no independent evidence of
alienage is needed to approach a person. If independent evide-

299

A

Interim Decision 1981

is needed, it can be found in the reasonable suspicion that a person is an alien. A suspicion can be reasonable one if no more appears than that the person approached is in an area in which illegal aliens are found. United States v. Montez-Hernandez, 291 F.
Supp. 712, 714-15 (E.D. Cal. 1968). See Abel v. United States,
362 U.S. 217 (1960); Yarn Sang Kwai v. INS, No, 21,784 (D.C.
Cir. February 17, 1969), petition for certiorari pending, NO.
1220, October Term, 1968; Amapa v. United States, supra; Matter of Wong and Chan, Interim Decision No. 1941 (BIA, 1968) ;
Matter of Doo, Interim Decision No. 1911 (BIA, 1968); Matter of
Chen, 12 I. & N. Dec. 603 (BIA, 1968).
Considering the facts of the instant case in light of the precedents we hold that it was proper to question the respondents and it
was proper to arrest them. Evidence, if any, obtained as the result of the arrest was incident to a lawful arrest and was there-

fore competent." We shall develop these matters further.
It was proper to question respondents. The posting of the
Service investigators did not constitute an arrest. Yam Sang
Kwai, supra. The experienced Service investigators had reason
to believe that illegal aliens were employed in a restaurant. They
entered it to question the employees. They limited their questioning to whether the person was an alien and, if so, whether he was
legally in the United States. These were matters within their authority. They did no enter to secure evidence for criminal prosecution. No force was used to enter. No force was used to question
the employees. There was no harassment of employee or of

management. Interference with business was so limited that the
kitchen supervisor thought, at first, that the investigators were
part of the management. There was no search of any employee
except those who' attempted to flee. When the investigators saw
persons, obviously of foreign descent, moving to make it impossible for them to be questioned, the investigators acted reasonably
3 Whether any evidence was obtained from the respondents at the time of
the arrest at the restaurant is not clear (See p. R-27). If anything was obtained, it is not shown that it was not voluntarily produced. No respondent
has alleged that anything was taken from him. Statements made by respondents after they were arrested could be used at the deportation hearing.
Siting Hang Tsui, supra, Documents which the respondents apparently left
on their ships and which came into the possession of the Service in some undisclosed manner and landing certificates taken from the Service files were
properly introduced.

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Interim Decision # 1981
in taking steps to detain them for questioning as to their immigration status.'
The respondents were properly arrested. When the- investigators determined that the respondents were aliens illegally in the
United States, it was reasonable to arrest them without a warrant for, clearly, they were aliens who were likely to escape before a warrant could be obtained. Section 287(a) (2), 8 U.S.C.
1354 (a) (2) ; Yam Sang Kivai, supra. (concurring opinion).
Since it was reasonable to arrest the respondents, evidence obtained as the result of the arrest, if any was obtained, was incident to a lawful arrest and was therefore competent.
Katz v. United States, 389 U.S. 347 (1967); Wolf v. Colorado,
338 U.S. 25 (1949) (overruled, Mapp v. Ohio, 367 U.S. 643

(1961) ); Gomez v. Layton, 394 F.2d 764 (D.C. Cir., 1968) cited
by counsel are inapposite. Katz concerns eavesdropping by electronic means. It did not involve the right to question a. person.
Wolf concerns evidence admittedly seized illegally. We find no illegality in the obtaining of evidence here. Gomez merely held that
one claiming an unconstitutional deprivation of liberty of movement was entitled to a judicial hearing on his claim.
ORDER: The appeals are dismissed.

4

Counsel contends that Burns had no cause to arrest Au merely because

or Au was progressing toward the front exit and was in an employee's uniform. Counsel believes that it was error to stop Au because if he were at-

tempting to flee, he could have been apprehended by investigators who, counsel alleges, were stationed outside the building. Burns did not arrest Au for
running away. He stopped him for questioning. He was authorized to do
this. He did not arrest Au until he found that Au was illegally in the
United States.

301


Interim Decision #1586

MAITER or BUZ40-PASELDA
In Deportation Proceedings .
A-11343968
Decided by Board May 18, 1966
Since a permanent resident alien who, while ,visiting in Mexico in July 1961
made a two-week visit to Cuba reentering the United States through Mexico
upon presentation only of his alien registration receipt card, wan excludable
under section 212(a) (20), Immigration and Nationality Act, at the time of
such reentry because under the regulation then in effect (8 CFR. 2111(b)(1))
an alien registration receipt card was not a valid document for reentry when
presented by one who had been in Cuba, he is deportable under section
241(a) (1) of the Act.
0311A11010:

Order: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)3—Immigrant
.. • needing valid. entry document and 'not haying one
(seetioll 212(a) (20) )-

This is an appeal from the order of the special inquiry -officer
finding respondent deportable upon the ground stated -above and
granting him voluntary departure. The appeal will be dismissed.
The nets and law have been discussed in detail, by the special
inquiry officer. Briefly,' respondent, a 31-yeEir-nld married male
alien, a native and citizen of Spain, was admitted to the United
States' for permanent residence in .1959. 'While hi Mexico on a
visit in July 1961, he made a two-week visit to Cuba; he came
back to Mexico and—from there reentered the United States as a
returning resident by showing his alien registration receipt card.
The Service contends -the card was not a valid entry document. The
special inquiry officer sustained the contention. He found that the
' regulation . (S CFR 811.1(b) (1)), in effect *hen•the respondent
entered -the 'United States, provided that an alien registration receipt card was not a..valid a document for reentry when presented
by one - who had been in Cuba. He ruled that the respondent had
needed a valid immigrant visa- When he •reentered from Mexico
and since he had none be. was deportable as charged.
615

-Interim Decision #1586
The respondent refused to testify at the hearing but in a, statement
which had been taken from him under bath in connection with his
petition for naturalization he said that he had no definite ideas
about visiting Cuba when he -went to Mexico on his . vacation, that,
in Mexico he met an individual who asked him to go to Cuba to
make inquiry about the individual's sister, and that it was for this
reason and just out of curiosity that he went; that he did not know,
relations between Cuba and the United States had been broken,
that he obtained-a passport from the Spanish consul in Mexico and
a visa from the Cuban authorities before he left Mexico for Cuba,
that he had not applied for permission to visit Cuba in the United
States because he did not feel it was necessary since he had "read

postcards about Cuba—traveling to Cuba * * * in the Agencies a
long time ago" (p. 8, Ex. 4). In counsel's brief and at oral argument;. however, it was conceded that -respondent visited 'Cuba and
reentered on his alien registration receipt card.
Counsel contends that since no statute makes an alien registration
receipt card invalid for reentr-y merely because the holder is coming
from Cuba, the regulation creating such a bar administratively is
without authority and that a deportation charge which can be
sustained only by reference to the regulation is not valid. The
simple, answer is that the regulation is binding upon this Board
(cf. Swissair v. Kennedy, 327 F.2d 860 (D.C. Cir., 1963) ; Holz v.
Da Guereio, 259 F.94 84 (9th Cir., 1958)). • •
.Counsel contends that respondent is not deportable under section
212(a) (20) of the Immigration and Nationality Act which provides
for the exclusioh of an immigrant "who at -the time of application
for admission" was not in possession of the appropriate entry document. Counsel contending that the term "application for admission"
contemplates. the admission of an alien applying for the first UM,
concludes it does not apply to an alien who returns to the United
States from a visit abroad. Section 101(a) (4) of the Act defines the
term "application -for 'arlinigAion" as having "reference to the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa"; the
term is not limited in any other manner and we know 'of no holding
that prevents its application to a returning resident. Under the
law respondent was required to submit a valid immigrant document
before' his return to the United States could have been authorized
(U. E. ex /lei, Polymerikv.Trudelt, 284 U.S. 279; Hole v. Del Cuerao
supra; see Celesta vt United States, 280 F.2d 704, 707 (5th Cir.,
1956)). Rosenberg v. Metal, 374 U.S. 449, cited by counsel is not applicable. Neither the section of la
jr the issue concerning "entry".
,

616

Interim Decision 44586
found in Fleuti is before us. In the instant case we have a regulation making a resident alien inadmissible if he has visited Cuba and
does not have a visa. This regulation is binding upon us and the
alien falls within its confines. Moreover, the fact that the respondent visited Cube in opposition to the policy reflected in the law would
make the Fleuti rule inapplicable (see Matter of Koli.. Int.- Dec. No.
1443; Matter of Corral Fragoao, bit. Dec. No. 1549).
Counsel contends that there is a lack of .due process in a procedure
which results in issuance to respondent of an alien registration identification card which states that he can. depart from the United
States and reenter within one year and then makes the card invalid
for reentry by a regulation promulgated after the issuance of the
card. (The card was issued in 1959.)
-

The alien registration receipt card contains the following pertinent
statement:
'
This card will be honored in lieu of a visa and passport on condition that the
rightful bolder is returning to the United States after a temporary . absence of
not more than one year and is not subject to exclusion under any provision of
the immigration laws. ,.
The regulation regarding Cuba came into effect on January 19. 19131
(26 F.R. 432) and was in effect both at the time of respondent's de-

parture to Cuba and his return to the United States. The regulation is part of the immigration laws; the regulation requires the exclusion of a returning resident who has been in Cuba and who does
not have a valid visa. The proviso on the card calls attention to the
fact that it would not be valid under all circumstances.
ORDER: It is ordered that the appeal be and the same is hereby
disMissed.

617