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Interim Decision #3957

Matter of Jun Yun ZHANG, Respondent
Decided June 28, 2019
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Under the plain language of section 237(a)(3)(D)(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1227(a)(3)(D)(i) (2012), it is not necessary to show intent to establish
that an alien is deportable for making a false representation of United States citizenship.
(2) Although a Certificate of Naturalization (Form N-550) is evidence of United States
citizenship, the certificate itself does not confer citizenship status if it is acquired
unlawfully.
FOR RESPONDENT: Kai W. De Graaf, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Trisha Lacey, Assistant Chief
Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MALPHRUS, Board Member:

In a decision dated November 8, 2017, an Immigration Judge found the
respondent removable under section 237(a)(3)(D) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(3)(D) (2012), as an alien who falsely
claimed to be a United States citizen, but granted his application for
cancellation of removal. 1 The respondent has appealed from the
Immigration Judge’s finding of removability. 2 The appeal will be dismissed.
The respondent is a native and citizen of the People’s Republic of China
who was admitted to the United States as a lawful permanent resident on June
20, 1991. Subsequently, through intermediaries, he purchased a Certificate
of Naturalization (Form N-550) from a person who, at the time, was an
officer of the former Immigration and Naturalization Service (“INS”) and
1

Section 237(a)(3)(D)(i) of the Act provides:
Any alien who falsely represents, or has falsely represented, himself to be a citizen
of the United States for any purpose or benefit under this Act (including section
274A) or any Federal or State law is deportable.

2
Neither party has appealed the Immigration Judge’s grant of cancellation of removal,
so this issue is not before us. See, e.g., Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec.
496, 496 n.1, 498 n.3 (BIA 2018).

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who was later convicted of illegally selling such certificates. A current
officer of the Department of Homeland Security (“DHS”) testified that the
respondent obtained his Certificate of Naturalization from the former INS
officer through unlawful means and that he did not properly complete the
naturalization process to merit the issuance of a certificate.
According to the Immigration Judge, the respondent’s testimony revealed
that he could not pass the English and civics tests, did not receive a Notice
of Naturalization Oath Ceremony (Form N-445), and did not participate in
the requisite interview process. The Immigration Judge did not make a
finding as to whether the respondent knowingly made a false representation
of United States citizenship. Rather, he stated that the “Court is mindful that
the respondent either knowingly or unknowingly tried to obtain United States
citizenship through a shortcut.”
On appeal, the respondent argues that he is not removable and that his
proceedings should be terminated because he is a United States citizen. He
contends that to find him removable under section 237(a)(3)(D) of the Act,
it must be shown that he made a false claim to citizenship that was “willful”
or “knowing.” The respondent also asserts that he has always believed he
was a United States citizen and that because he acted in good faith, he did
not obtain the Certificate of Naturalization for any “benefit” under the
Act. In response, the DHS argues that the statutory language of section
237(a)(3)(D) does not require intent or a culpable mental state. The question
before us, therefore, is whether an alien’s false claim to United States
citizenship must be made knowingly to render him or her removable.
In Matter of Richmond, 26 I&N Dec. 779, 783 (BIA 2016), we considered
whether the statutory language of section 212(a)(6)(C)(ii)(I) of the Act,
8 U.S.C. § 1182(a)(6)(C)(ii)(I) (2012), which is virtually identical to that of
section 237(a)(3)(D)(i), has a plain and unambiguous meaning. In looking
to the legislative history, we observed that this provision was added to the
Act by the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”),
“with the intent to prevent unauthorized employment and fraudulent
procurement of public services and benefits by illegal aliens.” Id. at 787.
We interpreted the meaning and scope of the phrase “for any purpose or
benefit under this Act . . . or any Federal or State law.” Id. at 784–89. But
we did not decide whether a false claim to citizenship must be knowingly
made to give rise to immigration consequences, because the United States
Court of Appeals for the Second Circuit had upheld the Immigration Judge’s
adverse credibility finding regarding the alien’s claimed belief that he was a
United States citizen. Id. at 781 n.5, 783. The Immigration Judge made no
such explicit credibility finding in this case.

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We have a duty to follow the plain and unambiguous language of the
statute. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“If the
statute is clear and unambiguous ‘that is the end of the matter, for the court,
as well as the agency, must give effect to the unambiguously expressed intent
of Congress.’” (citations omitted)). In interpreting statutory language, we
determine if its meaning is plain by referring “to the language itself, the
specific context in which the language is used, and the broader context of the
statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 340–41 (1997);
see also Matter of A. Vasquez, 27 I&N Dec. 503, 504 (BIA 2019).
Section 237(a)(3)(D)(i) of the Act provides that an alien is deportable if
he “falsely represents, or has falsely represented, himself to be a citizen
of the United States for any purpose or benefit.” The plain language of
this section does not require an intent to falsely represent citizenship status. 3
Significantly, Congress carved out a narrow exception to this provision for
those aliens whose parents are or were United States citizens; who
permanently resided in the United States prior to the age of 16 years; and
who reasonably believed that they were United States citizens when they
made such a claim. 4 Section 237(a)(3)(D)(ii) of the Act; see also section
212(a)(6)(C)(ii)(II) of the Act. This exception indicates that an alien is not
required to know that a claim to citizenship is false, because if Congress
had intended to include a knowledge or willfulness requirement in section
237(a)(3)(D)(i), there would be no need for a good faith exception.
3

By contrast, section 212(a)(6)(C)(i) of the Act, which is not applicable here, renders an
alien inadmissible if he or she “by fraud or willfully misrepresenting a material fact, seeks
to procure (or has sought to procure or has procured) a visa, other documentation, or
admission into the United States or other benefit provided under this Act.” (Emphasis
added.) The absence of a “knowing” or “willful” requirement for false claims to citizenship
in sections 212(a)(6)(C)(ii)(I) and 237(a)(3)(D)(i) indicates that there was no congressional
intent to include one. See Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006) (“[A] negative
inference may be drawn from the exclusion of language from one statutory provision that
is included in other provisions of the same statute.”); Russello v. United States, 464 U.S.
16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.” (citation omitted)).
4
Although the respondent indicated at one point in his appellate brief that he has
believed he is a United States citizen, he has never argued that he falls within the exception
relating to a reasonable belief under section 237(a)(3)(D)(ii) of the Act. We note in this
regard that the Eighth Circuit, in whose jurisdiction this case arises, previously remanded
a case where the issues were whether a minor’s status at the time of her misrepresentation
of United States citizenship would excuse her from inadmissibility under section
212(a)(6)(C)(ii) and whether her maturity level should be considered in determining if her
retraction of the misrepresentation was timely. See Sandoval v. Holder, 641 F.3d 982,
986–89 (8th Cir. 2011). However, the respondent’s case presents a different issue and does
not require us to reach the questions raised in Sandoval.

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The Eleventh Circuit’s reasoning in Patel v. U.S. Attorney General, 917
F.3d 1319, 1326 n.5 (11th Cir. 2019), where the court addressed the nearly
identical exception in section 212(a)(6)(C)(ii)(II) of the Act, is instructive.
With respect to whether a false claim to citizenship must be “knowing” to
establish inadmissibility under section 212(a)(6)(C)(ii)(I), the court stated,
“We seriously doubt that [the statute] requires the false claim to be
knowing. For starters, the text does not mention a ‘knowing’ or ‘willful’
false representation of citizenship.” Id.; see also Valadez-Munoz v. Holder,
623 F.3d 1304, 1309 n.7 (9th Cir. 2010) (noting that unlike the corresponding
criminal provision, which “requires the representation to be both false and
willful,” section 212(a)(6)(C)(ii)(I) “only requires falsity”). Furthermore,
the court concluded that interpreting section 212(a)(6)(C)(ii)(I) “to include
a knowing requirement . . . would render superfluous the exception in the
immediately following subsection.” Patel, 917 F.3d at 1326 n.5 (“If [section
212(a)(6)(C)(ii)(I)] contains a knowing requirement, the exception Congress
explicitly included is entirely unnecessary.”); see also Richmond v. Holder,
714 F.3d 725, 729 n.3 (2d Cir. 2013) (stating that for aliens who cannot meet
the requirements of the exception, “false citizenship claims need not be
knowing to run afoul of [section] 212(a)(6)(C)(ii)(I)”).
The existence of the exception in section 237(a)(3)(D)(ii) of the Act
similarly shows that Congress chose to exclude a scienter requirement from
section 237(a)(3)(D)(i). Thus, we conclude that under the plain language of
that section, it is not necessary to show intent to establish that an alien is
deportable for making a false representation of United States citizenship. 5
An alien need only falsely claim to be a United States citizen for any purpose
or benefit under the Act or any Federal or State law to be deportable.
As support for his arguments, the respondent relies on our precedent
decisions in Matter of Barcenas-Barrera, 25 I&N Dec. 40 (BIA 2009), and
Matter of Wong, 11 I&N Dec. 712 (BIA 1966). However, these cases do not
resolve the issue before us. Matter of Barcenas-Barrera determined that
an alien who was convicted of willfully and knowingly making a false
representation of birth in the United States on a passport application was
inadmissible under section 212(a)(6)(C)(ii) of the Act, but it did not hold
that proof of such intent is required to find an alien inadmissible under that
provision. See Matter of Barcenas-Barrera, 25 I&N Dec. at 42. In addition,
Matter of Wong, which predates enactment of the IIRIRA, does not stand for
the broad proposition that the respondent asserts—“that in order for a false
claim of citizenship to have any negative consequence, it must be made
knowingly and intentionally.” That case involved the narrow question
whether an alien was “inspected” for purposes of adjustment of status if her
5

Proof of a criminal conviction is also not required to sustain a charge of removability
under section 237(a)(3)(D)(i) of the Act.

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false claim to citizenship at the time of admission was made in good faith.
Matter of Wong, 11 I&N Dec. at 713.
Here, the Immigration Judge found that the respondent falsely claimed
United States citizenship after he unlawfully purchased a Certificate of
Naturalization and used it to obtain a United States passport, which is clearly
a “benefit” under the Act. Matter of Barcenas-Barrera, 25 I&N Dec. at 44.
Moreover, the respondent used his illegally obtained passport to travel
abroad and reenter the United States, which the Immigration Judge also
found to be a benefit. See Castro v. Att’y Gen. of U.S., 671 F.3d 356, 369
(3d Cir. 2012) (stating that obtaining entry to the United States by making a
false claim to citizenship at the border is a “benefit” under the Act); Jamieson
v. Gonzales, 424 F.3d 765, 768 (8th Cir. 2005) (same). There is no clear
error in the Immigration Judge’s finding that the respondent’s false claim to
be a United States citizen was made with a subjective intent to obtain such
benefits. See Matter of Y-L-, 24 I&N Dec. 151, 159 (BIA 2007) (stating that
an alien’s intent is a factual finding made by the Immigration Judge, which
is reviewed for clear error). The Immigration Judge properly concluded that
the respondent is removable under section 237(a)(3)(D) of the Act because
there is clear and convincing evidence that his unlawful acquisition of a
Certificate of Naturalization was for the purpose of obtaining these benefits.
See Matter of Richmond, 26 I&N Dec. at 784 (finding that an alien is
inadmissible under section 212(a)(6)(C)(ii)(I) of the Act if he makes a false
claim to citizenship with the subjective intent to obtain a “purpose or benefit”
under the Act or other law); see also section 240(c)(3)(A) of the Act, 8 U.S.C.
§ 1229a(c)(3)(A) (2012).
The respondent also maintains that he is a United States citizen and
that the DHS lacked the authority to cancel his Certificate of Naturalization.
Contrary to his arguments, this case does not involve the revocation of
naturalization, also referred to as denaturalization, which can only occur in
Federal district court. See section 340(a) of the Act, 8 U.S.C. § 1451(a)
(2012); Gorbach v. Reno, 219 F.3d 1087, 1093–94, 1099 (9th Cir. 2000);
Matter of Falodun, 27 I&N Dec. 52, 55–56 (BIA 2017). However, the DHS
has the authority to cancel a Certificate of Naturalization, because the statute
and the regulations provide for administrative cancellation if a Certificate of
Naturalization was illegally or fraudulently obtained or created. Section 342
of the Act, 8 U.S.C. § 1453 (2012); 8 C.F.R. §§ 342.1, 342.8 (2019).
Although a Certificate of Naturalization is evidence of United States
citizenship, the certificate itself does not confer citizenship status if it is
acquired unlawfully. See section 338 of the Act, 8 U.S.C. § 1449 (2012). As
the Immigration Judge determined, the respondent obtained his Certificate of
Naturalization “through unlawful means” from a former INS official who
was later convicted for his criminal activity in this regard. Therefore, the
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respondent never properly completed the naturalization process, which
requires filing an Application for Naturalization (Form N-400), taking an
oath of allegiance at a public ceremony, and obtaining a valid Certificate of
Naturalization to document the grant of United States citizenship. See Matter
of Falodun, 27 I&N Dec. at 54; see also section 337(a) of the Act, 8 U.S.C.
§ 1448(a) (2012).
As we stated in Matter of Falodun, a Certificate of Naturalization “cannot
be [administratively] cancelled if it was issued to a person who lawfully
filed an Application for Naturalization and proceeded through the entire
naturalization process to the oath of allegiance.” Matter of Falodun, 27 I&N
Dec. at 55–56 (citing section 340 of the Act). However, since the respondent
obtained a Certificate of Naturalization without completing the statutorily
prescribed naturalization process, he never lawfully naturalized, and his
certificate was properly cancelled. See section 310(d) of the Act, 8 U.S.C.
§ 1421(d) (2012); Rogers v. Bellei, 401 U.S. 815, 830 (1971) (observing that
an alien has no right to naturalization unless all the statutory requirements
are met); cf. Fedorenko v. United States, 449 U.S. 490, 506 (1981) (“[T]here
must be strict compliance with all the congressionally imposed prerequisites
to the acquisition of citizenship. Failure to comply with any of these
conditions renders the certificate of citizenship ‘illegally procured,’ and
naturalization that is unlawfully procured can be set aside.”).
In claiming that the cancellation of his Certificate of Naturalization was
ineffective, the respondent cites section 342 of the Act, which provides that
the cancellation of a Certificate of Naturalization does not affect “the
citizenship status of the person in whose name the document was issued.”
However, his reliance on that provision is misplaced. Since his Certificate
of Naturalization was illegally obtained, he was never entitled to the
citizenship status it purported to accord. See Matter of Falodun, 27 I&N
Dec. at 55; cf. Matter of Koloamatangi, 23 I&N Dec. 548, 551 (BIA 2003)
(holding that an alien who acquired permanent resident status by fraud “is
deemed, ab initio, never to have obtained [such] status”).
We agree with the Immigration Judge’s determination that the respondent
is removable from the United States under section 237(a)(3)(D) of the Act.
We need not address his remaining contentions on appeal. See INS
v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule
courts and agencies are not required to make findings on issues the decision
of which is unnecessary to the results they reach.”). Accordingly, the
respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

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Interim Decision #3875

Matter of Cristoval SILVA-TREVINO, Respondent
Decided October 12, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The categorical and modified categorical approaches provide the proper framework
for determining whether a conviction is for a crime involving moral turpitude.
(2) Unless the controlling case law of the governing Federal court of appeals expressly
dictates otherwise, the realistic probability test, which focuses on the minimum
conduct that has a realistic probability of being prosecuted under the statute of
conviction, should be applied in determining whether an offense is a categorical crime
involving moral turpitude.
(3) Under the “minimum reading” approach applied by the United States Court of
Appeals for the Fifth Circuit, the respondent’s conviction for indecency with a child
under section 21.11(a)(1) of the Texas Penal Code is not for a categorical crime
involving moral turpitude.
(4) An alien who has engaged in misconduct involving sexual abuse of a minor is not
required to make a heightened evidentiary showing of hardship or other factors to
establish that an application for relief warrants a favorable exercise of discretion.
FOR RESPONDENT: Lisa Brodyaga, Esquire, San Benito, TX
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Associate Legal Advisor

Elizabeth A.S. Thaler,

BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; GRANT and GREER,
Board Members.
GRANT, Board Member:

This case is before us pursuant to Matter of Silva-Trevino
(“Silva-Trevino II”), 26 I&N Dec. 550 (A.G. 2015), in which the Attorney
General vacated Matter of Silva-Trevino (“Silva-Trevino I”), 24 I&N Dec.
687 (A.G. 2008), and remanded the record to the Board for further
proceedings and the entry of a new decision. In his decision, the Attorney
General directed us to develop a uniform standard for determining whether
a particular criminal offense is a crime involving moral turpitude. Pursuant
to his directive, we asked the parties and amici curiae to provide us with

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supplemental briefs regarding the issues raised in the Attorney General’s
decision.1
We conclude that the categorical and modified categorical approaches
provide the proper framework for determining when a conviction is for
a crime involving moral turpitude. Applying this framework to the
respondent’s case, we hold that he is not inadmissible as an alien convicted
of a crime involving moral turpitude. The record will be remanded for
further consideration of his application for relief.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who was admitted to
the United States as a lawful permanent resident in 1962. On October 6,
2004, he pled no contest to the offense of indecency with a child under
section 21.11(a)(1) of the Texas Penal Code. The criminal court accepted
the plea, deferred further proceedings, fined the respondent $250, placed
him under community supervision for a period of 5 years, and ordered him
to attend sex offender counseling sessions.
Based on this conviction, the Department of Homeland Security
(“DHS”) charged the respondent with removability as an alien who has
been convicted of an aggravated felony for sexual abuse of a minor under
sections 101(a)(43)(A) and 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 8 U.S.C. §§ 1101(a)(43)(A) and 1227(a)(2)(A)(iii) (2000).
The respondent conceded that he was removable as charged, and he
requested adjustment of status to that of a lawful permanent resident. In a
decision dated February 9, 2006, the Immigration Judge found that the
respondent is ineligible for adjustment of status because he has been
convicted of a crime involving moral turpitude, which renders him
inadmissible under section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (2006).
The respondent appealed from that decision. On August 8, 2006, we
found that his conviction did not render him inadmissible because section
21.11(a)(1) of the Texas Penal Code criminalized at least some conduct that
does not involve moral turpitude and the record of conviction did not
contain any information about the conduct underlying his offense. We
remanded the record to the Immigration Judge for further proceedings.
On July 10, 2007, the Attorney General directed us to refer our decision
to him pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2007). The Attorney General
subsequently vacated our decision and set forth a framework for
determining when a conviction is for a crime involving moral turpitude in
1

We acknowledge and appreciate the briefs submitted by the parties and amici curiae.

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Silva-Trevino I. Specifically, he instructed Immigration Judges and the
Board (1) to examine the statute of conviction under the categorical
approach and determine whether there was a “realistic probability” that the
statute would be applied to conduct not involving moral turpitude; (2) if the
categorical approach does not resolve this question, to look to the record of
conviction under the modified categorical approach; and (3) in the event
the record of conviction is inconclusive, to consider any relevant evidence
outside the record of conviction to resolve the moral turpitude question. Id.
at 696–704.
Applying this framework to the facts of the respondent’s case, the
Attorney General first addressed whether there was a “realistic probability”
that the Texas statute would be applied to conduct that does not involve
moral turpitude. Id. at 705–08. 2 He determined that in cases involving
sexual misconduct with a child, “it is proper to make a categorical finding
that a defendant’s conduct involves moral turpitude when that conduct
results in a conviction on the charge of intentional sexual conduct with a
person the defendant knew or should have known was a child.” Id. at
706–07. Further, he stated that the “inclusion of a mistake-of-age defense”
would ensure that “individuals will be convicted only if they willfully or
knowingly directed sexual conduct towards someone they knew, or
reasonably should have known, was a child.” Id. at 707 (citing 18 U.S.C.
§ 2243(c)(1) (2006)).
After analyzing section 21.11(a)(1) of the Texas Penal Code, which
contained no mistake-of-age defense on its face, the Attorney General
concluded that there was a realistic probability that it would be applied to
reach conduct that does not involve moral turpitude. Id. at 708. He cited to
Johnson v. State, 967 S.W.2d 848, 849 (Tex. Crim. App. 1998) (en banc),
where the court rejected a 19-year-old defendant’s contention that he
should not be convicted under section 21.11(a)(1) because the victim and
her friend stated that the victim was over 17, and she appeared older than
her age. The Attorney General remanded the record to the Board because
“where, as here, the categorical inquiry does not resolve the moral turpitude
question, an adjudicator should engage in a modified categorical inquiry,
considering whether the facts of the alien’s prior conviction in fact involved
moral turpitude.” Matter of Silva-Trevino I, 24 I&N Dec. at 708.
On remand, we returned the record to the Immigration Judge to apply
the new analytical framework. After considering evidence extrinsic to the
record of conviction, he found that the respondent knew that the victim of
2

The Attorney General recognized that a crime involving moral turpitude is generally
defined as a crime that encompasses a reprehensible act with some form of scienter.
Matter of Silva-Trevino I, 24 I&N Dec. at 706 & n.5.

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his crime was a minor. The Immigration Judge therefore concluded that the
respondent had been convicted of a crime involving moral turpitude and
was ineligible for adjustment of status. We affirmed that decision. The
respondent filed a petition for review with the United States Court of
Appeals for the Fifth Circuit, in whose jurisdiction this case arises.
In Silva-Trevino v. Holder, 742 F.3d 197, 200–01 (5th Cir. 2014), the
Fifth Circuit held that the phrase “convicted of” in section 212(a)(2) of the
Act precludes an adjudicator from inquiring into evidence outside the
record of conviction.3 Because the Board had looked beyond the record of
conviction to conclude that the respondent’s conviction was for a
turpitudinous offense, the court vacated our decision and remanded the
record for further proceedings.
On April 10, 2015, the Attorney General issued Silva-Trevino II. In
view of the decisions of the five courts of appeals that rejected the
procedural framework set out in Silva-Trevino I, as well as intervening
Supreme Court decisions that “cast doubt on the continued validity of the
opinion,” the Attorney General vacated the prior decision in its entirety.
Matter of Silva-Trevino II, 26 I&N Dec. at 553. He remanded the record
for the Board “to develop a uniform standard for the proper construction
and application of section 212(a)(2) of the Act and similar provisions in
light of all relevant precedent and arguments.” Id. According to the
Attorney General, the Board may address the following issues:
1. How adjudicators are to determine whether a particular criminal offense is a
crime involving moral turpitude under the Act;
2. When, and to what extent, adjudicators may use a modified categorical
approach and consider a record of conviction in determining whether an alien has
been “convicted of . . . a crime involving moral turpitude” in applying section
212(a)(2) of the Act and similar provisions;
3. Whether an alien who seeks a favorable exercise of discretion under the Act
after having engaged in criminal acts constituting the sexual abuse of a minor
should be required to make a heightened evidentiary showing of hardship or other
factors that would warrant a favorable exercise of discretion.

Id. at 553–54.
3

In so holding, the court joined the Third, Fourth, Ninth, and Eleventh Circuits, which
also declined to defer to the framework outlined in Silva-Trevino I. See Olivas–Motta
v. Holder, 746 F.3d 907, 916 (9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472, 482
(4th Cir. 2012); Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1310 (11th Cir. 2011);
Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462, 473–74 (3d Cir. 2009). But see Bobadilla
v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012) (deferring to the Attorney General’s
framework); Mata-Guerrero v. Holder, 627 F.3d 256, 260 (7th Cir. 2010) (same).

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The Attorney General stated that his decision to vacate Silva-Trevino I
in its entirety did not mean that he disapproved of every aspect of that
decision, and he noted that nothing in his order was “intended to affect
Board determinations that an offense entails or does not entail
‘reprehensible conduct and some form of scienter’ and is or is not a crime
involving moral turpitude for that reason.” Id. at 553 n.3 (quoting
Silva-Trevino I, 24 I&N Dec. at 706 n.5).4

II. UNIFORM STANDARD
We have been directed to develop a uniform standard for the proper
construction and application of section 212(a)(2)(A)(i)(I) of the Act as it
applies to aliens “convicted of” a crime involving moral turpitude, as well
as other similar provisions. 5 Taking into consideration Supreme Court
precedent, the application of that precedent in the immigration context, and
the parties’ positions on appeal, we conclude that the categorical and
modified categorical approaches apply.
Notably, the parties agree that the categorical approach, as developed by
the Supreme Court, is the proper framework for determining whether a
crime involves moral turpitude under the Act. They additionally agree that
Descamps v. United States, 133 S. Ct. 2276 (2013), governs the concept of
divisibility and the use of the modified categorical approach. The use of
the categorical and modified categorical approaches is consistent with the
decisions of the five courts of appeals that did not agree with the Attorney
General’s third step in Silva-Trevino I.6 This framework also has strong
The Attorney General’s decision did not invalidate the Board’s decisions addressing
these matters and specified that we should determine whether to retain, modify, or clarify
them in any respect.
5
We need not now address the portion of section 212(a)(2)(A)(i)(I) of the Act that
refers to an alien “who admits having committed, or who admits committing acts which
constitute the essential elements of . . . a crime involving moral turpitude.” (Emphasis
added.) This provision is distinct from the portion premised on a conviction.
6
The DHS disagrees with the determination of the five circuits that the categorical
approach applies based on the phrase “convicted of” in section 212(a)(2)(A)(i)(I) of the
Act, but it concedes that the use of that approach is necessary to ensure a nationally
uniform standard. The amici addressing this specific issue generally agree that a
categorical approach is appropriate. One, however, argues that while the categorical
approach should apply to most crimes involving moral turpitude, crimes involving the
sexual abuse of a minor warrant a circumstantial approach. See generally Nijhawan
v. Holder, 557 U.S. 29 (2009) (considering evidence outside the record of conviction for
certain aggravated felonies). We decline to take this approach because we find no basis
in the Act or precedent to parse the categorical approach as proposed, and we strive, to
the extent possible, to provide a uniform approach for evaluating turpitudinous offenses.
4

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historical support because its use, in various iterations, has an extensive
history in the immigration context. See Silva-Trevino, 742 F.3d at 201
(pointing out that the categorical approach has been used in the
immigration context for at least a century); see also Mellouli v. Lynch, 135
S. Ct. 1980, 1986 (2015); Matter of Short, 20 I&N Dec. 136, 137–38 (BIA
1989) (stating that the Board only looks to the record of conviction to
determine the offense of which the respondent was convicted where the
statute of conviction includes some offenses that involve moral turpitude
and others that do not (citing, inter alia, Matter of S-, 2 I&N Dec. 353 (BIA,
A.G. 1945))). To provide a uniform national framework for deciding
whether a crime involves moral turpitude—to the extent that is possible in
light of divergent rulings in the Federal appellate courts—we will apply the
categorical and modified categorical approaches as defined by recent
Supreme Court precedent.
A. Categorical Approach
When determining whether a conviction for a State or Federal offense is
for a crime involving moral turpitude, Immigration Judges and the Board
will examine the State or Federal statute defining the crime of conviction to
see if it fits within the generic definition of a crime involving moral
turpitude. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (citing
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–87 (2007), Shepard
v. United States, 544 U.S. 13, 24 (2005), and Taylor v. United States, 495
U.S. 575, 599–600 (1990)). In evaluating the criminal statute under the
categorical approach, unless circuit court law dictates otherwise, we apply
the realistic probability test. This requires us to focus on the minimum
conduct that has a realistic probability of being prosecuted under the statute
of conviction, rather than on the facts underlying the respondent’s
particular violation of that statute. Moncrieffe, 133 S. Ct. at 1684–85;
Duenas-Alvarez, 549 U.S. at 193 (explaining that to show a realistic
probability, an offender “must at least point to his own case or other cases
in which the state courts in fact did apply the statute in the special
(nongeneric) manner for which he argues”).
Moncrieffe addressed whether an offense constitutes an aggravated
felony. The Federal courts of appeals differ on whether to extend the
realistic probability test to the context of crimes involving moral turpitude.
Four circuits have explicitly adopted the realistic probability standard
in deciding whether a crime categorically involves moral turpitude. See
Cano-Oyarzabal v. Holder, 774 F.3d 914, 917 (7th Cir. 2014); Leal

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v. Holder, 771 F.3d 1140, 1145 (9th Cir. 2014);7 Villatoro v. Holder, 760
F.3d 872, 877–79 (8th Cir. 2014); Rodriguez-Heredia v. Holder, 639 F.3d
1264, 1267 (10th Cir. 2011). Other circuits have adopted the categorical
approach based on Supreme Court precedent, without expressly addressing
the realistic probability test. See, e.g., Walker v. U.S. Att’y Gen., 783 F.3d
1226, 1229 (11th Cir. 2015); Efstathiadis v. Holder, 752 F.3d 591, 595 (2d
Cir. 2014); Yeremin v. Holder, 738 F.3d 708, 715 (6th Cir. 2013);
Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012). The First Circuit
has explicitly reserved its determination whether the realistic probability
test should apply and looks “to the inherent nature of the crime of
conviction, as defined in the criminal statute.” Da Silva Neto v. Holder,
680 F.3d 25, 29 & n.7 (1st Cir. 2012) (quoting Idy v. Holder, 674 F.3d 111,
118 (1st Cir. 2012)).
Two circuits, however, have rejected the realistic probability test in the
context of crimes involving moral turpitude. The Third Circuit held that
it will consider the elements of the statutory offense to ascertain the
least culpable conduct hypothetically necessary to sustain a conviction
under the statute. See Jean-Louis v. Att’y Gen. of U.S., 582 F.3d 462,
481–82 (3d Cir. 2009) (declining to import the Duenas-Alvarez realistic
probability test into the crime involving moral turpitude context); see also
Mahn v. Att’y Gen. of U.S., 767 F.3d 170, 174 (3d Cir. 2014) (applying
Jean-Louis in evaluating whether an offense is turpitudinous).
Additionally, the Fifth Circuit rejected the use of the realistic probability
test in determining whether an offense is a crime involving moral turpitude
and held that it will continue to apply the “minimum reading” approach.
See Gomez-Perez v. Lynch, 829 F.3d 323, 327 (5th Cir. 2016); Mercado
v. Lynch, 823 F.3d 276, 278 (5th Cir. 2016). Under that approach, an
offense is a crime involving moral turpitude if “the minimum reading of the
statute [of conviction] necessarily reaches only offenses involving moral
turpitude.” Gomez-Perez, 829 F.3d at 327 (quoting Amouzadeh v. Winfrey,
467 F.3d 451, 455 (5th Cir. 2006)).
In light of this disparity, and in the interest of setting forth a uniform
national standard, we will apply the Supreme Court’s realistic probability
test in deciding whether an offense categorically qualifies as a crime
involving moral turpitude, unless controlling circuit law expressly dictates
otherwise. In evaluating what is a “realistic probability” in a given case, it
is appropriate to consider how the controlling Federal circuit applies that
More recently, the Ninth Circuit has clarified that “when a ‘state statute’s greater
breadth is evident from its text,’ a petitioner need not point to an actual case applying the
statute of conviction in a nongeneric manner.” Chavez-Solis v. Lynch, 803 F.3d 1004,
1010 (9th Cir. 2015) (quoting United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007)).
7

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test. See Matter of Chairez, 26 I&N Dec. 819, 820 (BIA 2016) (reaffirming
that the application of the categorical approach is not a matter upon which
we receive deference).
B. Modified Categorical Approach
In cases where the statute of conviction includes some crimes that
involve moral turpitude and some that do not, adjudicators must determine
if the statute is divisible and thus susceptible to a modified categorical
analysis. Under such an analysis, resort to the record of conviction is
permitted to identify the statutory provision that the respondent was
convicted of violating. See Descamps, 133 S. Ct. at 2281, 2283 (defining
when a statute may be considered “divisible”); Matter of Chairez, 26 I&N
Dec. at 819–20 (clarifying that the understanding of statutory “divisibility”
embodied in Descamps applies in immigration proceedings nationwide to
the same extent that it applies in criminal sentencing proceedings). A
criminal statute is divisible so as to warrant a modified categorical inquiry
only if (1) it lists multiple discrete offenses as enumerated alternatives or
defines a single offense by reference to disjunctive sets of “elements,” more
than one combination of which could support a conviction and (2) at least
one, but not all, of those listed offenses or combinations of disjunctive
elements is a categorical match to the relevant generic standard. Matter of
Chairez, 26 I&N Dec. at 822 (citing Descamps, 133 S. Ct. at 2281, 2283).8
In this case, the parties do not dispute that the respondent’s statute of
conviction is indivisible, so we have no further need to address the issue.
We next apply this framework to the respondent’s conviction under section
21.11(a)(1) of the Texas Penal Code.

III. ANALYSIS
A. Indecency with a Child Under Section 21.11(a)(1)
The term “moral turpitude” generally refers to conduct that is
“inherently base, vile, or depraved, and contrary to the accepted rules of
morality and the duties owed between persons or to society in general.”
8

Recently, the Supreme Court resolved a circuit court split regarding the interpretation
of divisibility under Descamps. Mathis v. United States, 136 S. Ct. 2243 (2016). In that
case, the Court clarified that the modified categorical approach only applies to divisible
statutes—that is, “statutes having multiple alternative elements,” and it does not apply to
statutes that “enumerate[] various factual means of committing a single element.” Id. at
2249.

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Cisneros-Guerrerro v. Holder, 774 F.3d 1056, 1058 (5th Cir. 2014)
(quoting Matter of Sejas, 24 I&N Dec, 236, 237 (BIA 2007)). To involve
moral turpitude, a crime requires two essential elements: reprehensible
conduct and a culpable mental state. Nino v. Holder, 690 F.3d 691, 695
(5th Cir. 2012). In Matter of Silva-Trevino I, 24 I&N Dec. at 706–07, the
Attorney General held that a crime involving intentional sexual conduct by
an adult with a child involves moral turpitude as long as the perpetrator
knew or should have known that the victim was a minor. We find no
reason to deviate from this holding.9 Because this case arises in the Fifth
Circuit, we will apply its minimum reading approach to the categorical
inquiry. See Gomez-Perez, 829 F.3d at 327.
In 2004 when the respondent was convicted of indecency with a child,
section 21.11(a)(1) of the Texas Penal Code provided, in relevant part, as
follows:
A person commits an offense if, with a child younger than 17 years and not the
person’s spouse, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to engage in
sexual contact . . . .

Under section 21.11(c), the term “sexual contact” included
the following acts, if committed with the intent to arouse or gratify the sexual
desire of any person:
9

We note, however, that our decision does not reach crimes commonly known as
“statutory rape.” See, e.g., Tex. Penal Code Ann. § 22.011(a)(2)(A) (West 2016). These
are a distinct category of crimes that require the penetration of the child or similar
conduct. Even though these offenses do not require a perpetrator to have knowledge of
the age of the victim, we reserve the question whether they are crimes involving
moral turpitude. See, e.g., Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976) (holding
that “a man’s carnal knowledge of a fifteen year old girl . . . is so basically offensive to
American ethics and accepted moral standards as to constitute moral turpitude per se”);
Marciano v. INS, 450 F.2d 1022, 1025 (8th Cir. 1971) (“Federal courts have consistently
held that statutory rape is a crime involving moral turpitude.”); Matter of Guevara Alfaro,
25 I&N Dec. 417, 420–21 (BIA 2011) (finding that under Silva-Trevino I, statutory rape
of a minor under 16 years of age in violation of section 261.5(d) of the California Penal
Code is a crime involving moral turpitude and declining to follow Quintero-Salazar
v. Keisler, 506 F.3d 688, 692–94 (9th Cir. 2007)); Matter of Dingena, 11 I&N Dec. 723,
724–29 (BIA 1966) (holding that sexual intercourse with a female child under 16 years of
age in violation of section 944.10(2) of the Wisconsin Statutes is a crime involving moral
turpitude); cf. Mehboob v. Att’y Gen. of U.S., 549 F.3d 272, 278–79 (3d Cir. 2008)
(affirming that moral turpitude inheres in the Pennsylvania offense of misdemeanor
indecent assault, which involves sexual contact with a person under 16 years of age by a
perpetrator who is at least 4 years older than the complainant).

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(1) any touching by a person, including touching through clothing, of the anus,
breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through
clothing, with the anus, breast, or any part of the genitals of a person.

An affirmative defense existed under section 21.11(b) if, inter alia, the actor
“was not more than three years older than the victim and of the opposite
sex” and “did not use duress, force, or a threat against the victim at the time
of the offense.”
On appeal, the respondent emphasizes that in Silva-Trevino I, the
Attorney General found that the offense in section 21.11(a)(1) of the Texas
Penal Code is not categorically a crime involving moral turpitude. He
further contends that because the statute is not divisible, the record should
be remanded for him to present his application for relief. The DHS argues
that the respondent has been convicted of an offense that is categorically a
crime involving moral turpitude because there is no realistic probability that
the State would prosecute an individual under the statute for conduct that
does not involve moral turpitude.
Applying the Fifth Circuit’s minimum reading approach to the
categorical inquiry, we conclude that the respondent’s crime under section
21.11(a)(1) is not categorically a crime involving moral turpitude. As
noted, an offense will be classified as a crime involving moral turpitude in
the Fifth Circuit if the minimum reading of a statute only encompasses
offenses involving moral turpitude. Gomez-Perez, 829 F.3d at 327.
Because section 21.11(a)(1) is broad enough to punish behavior that is not
accompanied by the defendant’s knowledge that the victim was a minor, the
offense does not necessarily involve moral turpitude.10
The DHS argues that there is no proof that the reasoning in Johnson,
967 S.W.2d 848, would be applied to conduct less serious than sexual
intercourse. However, sexual intercourse is not an element of the crime,
and the fact that the respondent admits he was convicted of conduct
involving a “touching” indicates that it is not “legal imagination” to find
10

In Matter of Silva-Trevino I, 24 I&N Dec. at 705–08, the Attorney General determined
that under the realistic probability test, the respondent’s crime under section 21.11(a)(1)
does not categorically qualify as a crime involving moral turpitude. As stated above, the
Attorney General found that a crime involving intentional sexual conduct by an adult
with a child involves moral turpitude as long as the perpetrator knew or should have
known that the victim was a minor. Id. at 706–07. Texas case law establishes that in
cases involving indecency with a child, the State is not required to show that the
defendant knew that the victim was younger than 17 years of age. See Johnson, 967
S.W.2d at 849–50 (citing, inter alia, Roof v. State, 665 S.W.2d 490, 492 (Tex. Crim. App.
1984) (en banc)).

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that the statute is applied to conduct less invasive than penetration and
similar acts. See, e.g., Sullivan v. State, 986 S.W.2d 708, 715 (Tex. Crim.
App. 1999) (upholding a conviction under section 21.11(a)(1) of the Texas
Penal Code for touching the breast of a young boy); Cruz v. State, 742
S.W.2d 545, 548 (Tex. Crim. App. 1988) (affirming a conviction under
section 21.11(a)(1) involving fondling). The respondent’s crime is
therefore not a categorical crime involving moral turpitude.
Because section 21.11(a)(1) is not divisible, the respondent is not
inadmissible as an alien convicted of a crime involving moral turpitude.
The record will therefore be remanded for further consideration of his
application for adjustment of status.
B. Heightened Discretionary Standard
The Attorney General has also asked us to consider whether an
applicant for relief who has engaged in misconduct involving sexual abuse
of a minor should be required to make a heightened evidentiary showing of
hardship or other factors to establish that a favorable exercise of discretion
is warranted. Matter of Silva-Trevino II, 26 I&N Dec. at 554.
In Matter of Jean, 23 I&N Dec. 373, 383 (A.G. 2002), the Attorney
General held that aliens convicted of violent or dangerous crimes will not
be granted discretionary relief except in extraordinary circumstances, such
as those involving national or foreign policy decisions, or in cases where an
alien clearly demonstrates that the denial of relief would result in
exceptional and extremely unusual hardship. The Attorney General further
noted that even a showing of such hardship may be inadequate to justify a
grant of relief, depending on the nature of the crime. Id. at 383–84. This
test has been codified for applicants for a waiver of inadmissibility under
section 212(h)(2) of the Act. See 8 C.F.R. § 1212.7(d) (2016).
The DHS argues that a heightened evidentiary standard should be
imposed on aliens who engaged in criminal acts constituting sexual abuse
of a minor. Under this heightened standard, aliens would be required to
establish that they would suffer exceptional and unusual hardship in the
event they are removed or to present other extraordinary factors. After
careful consideration, we conclude that it is not necessary to devise such an
additional framework.11
There is a well-established framework for evaluating discretionary
determinations, under which Immigration Judges balance the positive and
negative factors in the record and the applicant bears the ultimate burden of
11

Because we reach this conclusion, we need not specifically address the arguments of
the respondent and amici that a heightened discretionary standard should not be applied.

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showing that he or she merits a favorable exercise of discretion. See Matter
of C-V-T-, 22 I&N Dec. 7, 11–12 (BIA 1998); Matter of Marin, 16 I&N
Dec. 581, 584–85 (BIA 1978); 8 C.F.R. § 1240.8(d) (2016). In cases where
“negative factors grow more serious, it becomes incumbent upon the alien
to introduce additional offsetting favorable evidence, which in some cases
may have to involve unusual or outstanding equities.” Matter of C-V-T-,
22 I&N Dec. at 11–12; see also Matter of Sotelo, 23 I&N Dec. 201, 203
(BIA 2001); Matter of Arai, 13 I&N Dec. 494, 496 (BIA 1970).
Furthermore, when an alien has a criminal record, any rehabilitation or lack
of rehabilitation may be deemed a relevant factor in the analysis, depending
on the evidence presented. See Matter of C-V-T-, 22 I&N Dec. at 12.
In cases involving criminal acts, the Immigration Judge is not limited by
any type of categorical assessment and may examine the actual nature of
the crime by considering evidence outside of the record of conviction. See,
e.g., Matter of Teixeira, 21 I&N Dec. 316, 321 (BIA 1996) (discussing the
admission of police reports in the context of discretionary determinations);
Matter of Thomas, 21 I&N Dec. 20, 23 (BIA 1995) (holding that evidence
of unfavorable conduct may be considered in discretionary determinations,
even if it does not result in a conviction). As the finder of fact, the
Immigration Judge therefore has broad latitude in assessing the exact nature
of the criminal acts involved, depending on the evidence submitted by the
parties.
As with any crime, in cases of sexual abuse or other mistreatment the
Immigration Judge can consider the age of the victim and any other factors
relevant to determining the full scope of the conduct and harm involved.
The Immigration Judge can then accord the factors appropriate weight and
determine whether the equities are sufficient to offset the adverse factors,
although there may be cases in which an alien’s criminal acts are so severe
that they cannot be outweighed by compelling positive factors. See Matter
of Burbano, 20 I&N Dec. 872, 878 (BIA 1994) (recognizing that certain
criminal acts may be determinative in deciding whether a favorable
exercise of discretion is warranted). We are confident that this framework
is appropriate because it accounts for the particular evidence in each case.
The record will therefore be remanded for the Immigration Judge to assess
the respondent’s application for relief based on updated evidence.

IV. CONCLUSION
In the interest of establishing a uniform national standard despite
divergent views in Federal circuit law, we conclude that the categorical and
modified categorical approaches provide the appropriate framework for
evaluating whether an alien has been “convicted of” a crime involving
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moral turpitude. Therefore, to the extent that any Board precedent currently
indicates that a contrary test should apply, we withdraw from it. E.g.,
Matter of Ahortalejo-Guzman, 25 I&N Dec. 465 (BIA 2011); Matter of
Guevara Alfaro, 25 I&N Dec. 417 (BIA 2011). The respondent has not
been convicted of an offense that is categorically a crime involving moral
turpitude, and there is no basis to apply the modified categorical approach.
He is therefore not inadmissible under section 212(a)(2)(A)(i)(I) of the Act
as an alien convicted of a crime involving moral turpitude, and he is not
barred from seeking adjustment of status on that basis. Accordingly, the
record will be remanded for further consideration of the respondent’s
eligibility for relief.12
ORDER: The record is remanded for further proceedings consistent
with the foregoing opinion and for the entry of a new decision.

12

In his supplemental filings, the respondent asserts that he should be provided with
access to documents he believes were considered by the Attorney General in his initial
certification process. However, the respondent has not identified any missing documents
that should be in the record, nor has he established that he has been deprived of a
reasonable opportunity to examine and object to evidence or to present evidence on his
behalf. We therefore decline to address this request further. See Silva-Trevino, 742 F.3d
at 199 (denying a request to supplement the record, finding that the argument was waived
because no specific omission had been identified).

838


Interim Decision #1732

MATTER. OF NEWTON

In Deportation Proceedings
A-14059088
Decided by Board May 12, 1967
A dual national at birth of the United States and Canada who applied for and

received a Certificate of Retention of Canadian Citizenship pursuant to section
21 (2) of the Canadian Citizenship Act thereby voluntarily sought or claimed

the benefits of Canadian nationality within the meaning of section 350 of the
Immigration and Nationality Act.
CHARGE*

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) ]—Ealudable at
entry under section 212(a) (20) [8 U.S.C. 1182]—Immigrant, no visa.
ON Bznarx OF SERVICE : R. A. Vielbaber
Appellate Trial Attorney
(Oral argument)

This case is before us on certification of the special inquiry officer
who found the respondent deportable on the charge contained in the
order to show cause and granted voluntary departure. The case has
been certified to us for review and final decision.

The record relates to a 29-year-old married male alien, who acquired
dual citizenship at birth, United States and Canadian. United States
citizenship was acquired through birth in the United States and Canadian citizenship through his father who was then a Canadian citizen.
Respondent last entered the United States at Detroit, Michigan on or
about March 12, 1966, and was admitted upon his statement that he was
born in Detroit, Michigan. Respondent has a United States citizen wife
and one United States citizen child who live in the United States.
When respondent last entered the United States it was his intention to
live and -work in the United States.

The special inquiry officer found that respondent lost his United
States citizenship on November 12, 1958 under section 350, Immigration and Nationality Act (8 U.S.C. 1482) by reason of his applica221

Interim Decision #1732
tion for and receipt of a Certificate of Retention of Canadian Citizenship. Section 350 provides as follows :
A person who acquired at birth the nationality of the United States and of
a foreign state and ICAO has voluntarily sought or claimed benefits of the natiOnality of any foreign state (emphasis supplied) shall lose his United States
nationality by hereafter having a continuous residence for three years in the
foreign state of which he is a national by birth at any time after attaining the
age of twenty-two years unless he shall—
(1) prior to the expiration of such three-year period, take an oath of allegiance to the United States before a United States diplomatic or consular .
oficernampsbdytheScraof.

is conceded that respondent did have dual citizenship at birth,
that he had a continuous residence of three years in the foreign state
It

of which he is a national after attaining the age of 22 years, and that
he did not take an oath of allegiance to the United States as provided

in subsection (1) above. The question for our determination is whether
respondent had in fact voluntarily sought or claimed benefits of the
nationality of any foreign state (Canada). The special inquiry officer
found that he had received such benefits by virtue of the aforementioned Certificate of Retention of Canadian Citizenship.
In determining whether the benefit sought or claimed has an enpatriatory effect we are guided by the language of Matter of R—S—,
7 I. 85N. Dec. 718 (1058), as follows :

* S • Nevertheless, it is believed that the. benefit voluntarily sought or
claimed by the dual national should be substantial and indicative of an intention to express some elements of preference to another country in a measure
inconsistent with American citizenship.
Thus, citizenship will not be forfeited lightly in connection with
some trivial matter and the benefit sought by the dual national should
be of a nature inconsistent with a claim to the United States citizenship.
To see what benefits respondent received by reason of his seeking
and receiving this Retention of Canadian Citizenship Certificate, we
set forth below the applicable portions of Canadian law. By virtue of
respondent having been born of a Canadian citizen father he acquired
Canadian citizenship at birth under section 4 of the Canadian Citizenship Act of 1946 which provides4. (1) A person born before the first day of January, 1947, is a naturalborn Canadian citizen if
(a) • • •
(b) be was born outside of Canada elsewhere than on a Canadian ship
and was not on the first day of January 1947 an alien, and either was
a minor on that date or had before that date, been lawfully admitted
to Canada for permanent residence and his father, or in the ease of a
person born out of wedlock, his mother
(I) was born in Canada or on a Canadian ship and was not an
alien at the time of such person's birth.

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Section 21 (2) of the Canadian Citizenship Act provides for the
retention of Canadian citizenship by one who acquired such citizenship under section 4(1) (b) above—
(2) A person who is a Canadian citizen under paragraph (b) of subsection
(1) and was a minor on the first day of January, 1947 ceases to be a Canadian citizen upon the date of the expiration of three years after the day on
which ne attains the age twenty-one years or on tne first day of January
1954, whichever is the later date, unless he
(a) has his place of domicile in Canada on such date; or
(b) has, before such date and after attaining the age of twenty-one
years, filed, in accordance with the regulations, a declaration of retentention of Canadian citizenship.

Thus, under the above sections of Canadian law, respondent would
lose his Canadian citizenship if he were not domiciled in Canada on
.his twenty fourth birthday unless he has between his twenty first and
twenty fourth birthdays filed a declaration of retention of Canadian
citizenship. Respondent filed such declaration when he was 21 years
We feel that the benefits accrued to respondent by virtue of his
having sought and obtained this Certificate of Retention of Canadian
Citizenship were substantial and indicative of a preference for a foreign country to a degree inconsistent with United States citizenship.
Not only the actual act in obtaining this certificate indicated a preference for a foreign country to a degree inconsistent with United
States citizenship, but testimony of respondent, set forth below, indicates beyond any doubt that he fully intended to keep his Canadian
.citizenship and give up his United States citizenship.
What are the benefits that were received by respondent? First,
applying for and receiving the certificate assured him that he would
not lose his Canadian citizenship under the provisions of section 21 (2)
quoted above. Secondly, this certificate relieved him of the necessity of
being domiciled in Canada on his twenty fourth birthday. Finally,
obtaining this certificate assured him that he could then lose his Canadian citizenship only by taking some affirmative action.
On October 19, 1965 respondent in an affidavit stated : "When I was
21 years of age I elected to be a Canadian citizen. My attorney in
Windsor arranged this for me. I consider myself now to be a Canadian
•itizen." On May 2, 1966 respondent in a supplementary affidavit stated
"Therefore when I turned 21 I decided because I had lived all of my
life in Canada, and that time my friends, interests, and future seemed

to lie in Canada, my only choice would be to choose Canada as my
country of citizenship." Finally, on November 14, 1966 respondent
stated "About October 1958 I filed my retention of Canadian citizenship application. I had been informed that I would have to make a
223

Interim Decision #1732
choice of citizenship when I became 21, and I had discussed this with
my attorney. At that time it was my choice to be a Canadian citizen.
That is why I filed for my retention of Canadian citizenship."
These statements are quite indicative of the fact that the benefits
sought as well as respondent's reasons for seeking these benefits show
a preference for a foreign country to a degree inconsistent with United
States citizenship.
The record contains much discussion and argument relative to respondent's draft status in the United States. When respondent received
the aforementioned certificate, the United States authorities changed
his draft classification from 1—A to 4—C, which excused him from serving in the Armed Forces of the United States. The special inquiry officer held that this was not a benefit within the contemplation of section
350. It is not necessary to a decision in this case for us to review and
decide this point as the case will be disposed of on the grounds
hereinbefore set forth.
We concur with the findings of the special inquiry officer that respondent is deportable and that the facts alleged as grounds for
deportation are true and are based upon clear, unequivocal, and
convincing evidence.
ORDER: It is ordered that the decision of the special inquiry
officer on March 10, 1967 finding respondent deportable but granting
voluntary departure from the United States be and the same is hereby
affirmed..

224


Interim Decision #2460

MATTER OF MODY

Application for Permission to Accept Employment
A-21028909
Decided by District Director October 31, 1975
Application by a nonimmigrant student for permission to accept part-time employment
under the provisions of 8 CFR 214.2(f)(6) is denied for failure to establish economic
necessity for such employemnt due to unforeseen circumstances arising subsequent to
his acquisitica of student status in the absence of evidence to show that there is no
longer availaole to applicant the support provided by his brother for room and board and
school experses, or a brother-in-law's offer of support, as indicated in a previous
application.

The applicant is an unmarried twenty-three-year-old citizen of India
whose statt.s was adjusted from visitor to that of a nonimmigrant
student on August 29, 1973. He is presently attending Erie County
Community College in Buffalo, New York, where he is enrolled in a
Management Engineering technology course. His temporary stay has
been extended on a regular basis, and he is now authorized to remain
until December 8, 1975.
On June 2D, 1975, he applied for permission to accept employment. He
states that lie is receiving $2,915 from his father in India; and that his
yearly expenses are $1,350 for school fees, $1,440 for room and board,

hocks and stationary, and $840 for auto payments and insurance. His total expenses are $3,755. The subject bases his application on
his desire to complete purchase of an automobile in order to commute to
school, which he claims is very difficult during winter months. The
applicant in his application acknowledged the question regarding employment in the United States but did not indicate whether he had or
$125 for

had nut been employed.

In a previous application for permission to work, and the application
for change of status, it was shown that the applicant's brother would
furnish him with room and board and school expenses amounting to
approximately $2,400 to $3,000 a year. Another sponsor, a brother-inlaw, also offared to support the applicant.
On August 7, 1975, the applicant was interviewed by a Service officer,
and he admitted that he had been employed as a stockboy in a super542

Interim Decision #2460
market since May 11; 1975. A previous application for permission to
work in 1974 was denied. The applicant has accepted unauthorized
employment.
8 CFR 214.2(f)(6) provides, in part, that if a student requests permission to accept part-time employment because of economic necessity, he
must establish that the necessity is due to unforeseen circumstances
arising subsequent to change to student classification_ In reviewing the
record, it is noted that the applicant was receiving approximately $3,000
a year from his brother and is now receiving $2,915 from his father and
has a brother -in-law who also offered his support. There is no evidence
or information in the record showing that this assistance is no longer
available to him.
The applicant has failed to establish a need for part-time employment
as required by Service regulations. The application must, therefore, be
denied.
ORDER: It is ordered that the application for part-time employment
because of economic necessity be and is hereby denied.

543


Interim Decision #1531

Marten ‘or Vizpara-Onr -
| In Exclusion Proceedings
” a-s517468
Dectited ty Burd Qviuivor Py 1906

A naturalized United States citizen who during a temporary absence in Mexico
in 1964 lost such citizenship by voting in a political election in that country
Js eligible for the consideration of, and io granted, a waiver of tho docu
‘mentary requirements pursuant to section 211(b), Immigration and Natton-

__ ality Act, to remove the ground pf inadmissibility at the time of his applica-

‘tion for readmission, since the expatriatory act of voting in nowise affected

+ hie’ stetna ae @ narmanant resident acanired Shen Inwfnllv admitted to the
‘United States for permanent-residence’ in 1953.

Bxotvpase: Act of 1952—Section. 212(a)(20) [8 U.S.C, 2182{a) (20)]—No

. valid immigrant visa. -

‘This ease thas been certified to this Board by the special inquiry
officer for final decision in accordance with the, applicable regula-
tions. Tho oppollant, e 46-yoor-old marriod ‘male; applied far ad-

” qission to the United States as a citizen thereof: at Brownsville,

- Texas on January 26; 1965. He was ordered detained for further
examination by a special inquiry officer for the purpose of determi- -
ning his admissibility to the United States as a citizen,. The record
reflects that he was paroled into the United States on Januaiy 26,
1965, so he could rejoin his family at their home in-San Antonio, °

” ‘Texas, pending a hearing to determine -bis admissibility to the

“United States before a speciel inquiry officér.. The evidence siddneed «

" “at-thé hearings held in exchision procgedings at San Antonio, Texas.

on May 96, and Jie 4, 1968, respectively, establishes that the ap-
pellant'résided in Mexicé from birth on February 25, 1990 until his, _
admission to the United States for permanent residence af Browns-.
ville, Texas as a nonquote iminigrant on July 24, 1958. Pe
The appellant was ‘naturalized a citizen of the United States in
the United States District Court in’ Brownsville, Texas on May 21,.
1960. .'The appellant’s wife and four of his nine children are lawful

resident aliens ofthe United States. His remainiig five children are

414
Interiin Decision #1531

native-born citizens of the United Stules. "The appellant has xosidart
continuously in the United States since his admission thereto for
permanent residence in July 1953. ‘The appellant in connection with
+ hic business of hnying used farm machinery in the United States for,
resale in Mexico found that his business dealings in Mexico were
benefited greatly by his having and carrying 2 Mexican voter's regis-
tration certificate as identification. The evidence .in this record:

shows that the appellant voted in the presidentiol election in Mata- ~

moros, Mexico on July 5, 1964 (Exs. 2 & 5). : 7

_ The appellant’s action in voting in the Mexican presidentisl elec-"
tion in Matamoros, Mexico on July 5, 1964 constitutes an expatriat-
ing act under section 849(2) (5) of the ‘Immigration and Nationality
‘Act (of. Matter of If—, 9 I. & N. Doo. 516). Hence, the appellant
is arvalien. Hi :

‘The record reflects that the appellant cooks admission to the
United States to reside permanently therein with his wife and nine
children, He was admitted to the United States for permanent resi-
denca ot Brownsyille,"Texas on July 24, 1958. The appellant seeks
to return to an unrelinguished lawful permanent Tesidence-in thy.
Gnited States after » temporary visit abroad. The appellant at the
time he applied for admission to the United States on January 26,
1965 was not in possession of » valid unexpired isnmigtant visa, re-
entry permit * * *, or other valid entry docunient. The appellant
surrendered his alien registration receipt card: (Form 1-151), which,
had been issued to him after his admission to the United States for
permanent residence he was naturalized. a eltizen uf-the United
“States on May 21; 1960. The eviderice reveals the appellant has _-
maintained his permanent residence in the United States singe -
July 24, 1958; that it-was not his intention to abandon his perma-
nent ‘resident status.in the United States but to resume, his residence

_and rejoin his family in this country on the several occasions he ‘has
departed from the United States to Mexico in, connection with his
business after he became an expatriate of the United Stotés‘on July
5, 1964. Beare oa

No question is'raised a8 to loss ‘of United States citizenship by
voting in Mexico. It is contended, however, that this act of voting:
terminated the applicant’s residence in the United “States and thet
now as the applicant does not have an immigration visa he is inad-
missible. ee > aoe Tes

‘The special inyuiry officer found tia} the appltcant’s residence in ~
the ‘United States was not lost solely by voting in Mexico, that as the
applicant had been lawfully admitted for permanent residence, and
hig absence was clearly teapuraty, he wos cligible for osneidoration

M5
Interim Decision #1531

ul w waiver of documents under scotion 911(b) of the Immigration
and Nationality Act and granted the waiver. We agree with the
special inquiry officer.

The applicant, as above pointed out, was lawfully admitted for
permanent residence. Nothing has intervened since then to change
that status. When the applicant lost United States citizenship by
voting, his status reverted back to that of a lawful permaneut resi-
dont of the United States. In this case, the expatriating act, voting
in Mexico, had nothing to do with the continuance of the status of a
lawful permanent resident of the United States.

It is, therefore, our conclusion that the applicant is an alien who
has been lawfully -admitted for permanent residence, “such status not
having changed.” ‘This conclusion is consonant! with Matter of S—,
61. & N. Dec. 392, Matter of Y—, 8 I. & N. Dec. 148, and Matter of
M_P_, 91. & N. Dee. 747. Moreover, tha TInifad States Depart
ment of State has expressed the opinion that persons who lost their
citizenship abroad may still be considered permanent residents of the
United States (Vol. 9, Part 8 — Visa Handbook Interpretations, 22
UH 4%.22(b)). While the resopndent’s uctiou in voting in the
Presidential election in Mexico on July 5, 1964 resulted in his be-
coming an expatriate of the United States under section 349(2) (5)

of the Act this action in nowise affected his status as a permanent |

resident of the United States acquired when he was lawfully ad-
mitted thereto as 2 nonquota immigrant on July 24, 1953.
* After carefully considering: all the evidence of record, together
with tho oaceptions noted by the trial attoxmoy by bziog, tha Sndings
of fact, conclusions of law and the order entered by the special in-
quiry officer on June 7, 1965 are hereby approved. On this record,
the appellant meets the requirements of section 211(b) of the Immi-
gration and Nationality Act and is eligible for admission to the
United States without being required to cbtain a passport, immi-
grant visa, reentry permit or other documentation. The facts in the
case fully justify grenting the waiver of documents, Accordingly,
the following order will be entered. 7

ORDER: It is drdered thet the order entered by the special in-
quiry officer on June 7, 1965 directing that under the authority con-
tained in section 211(b) of the Immigration and Nationality Act,

the alien be admitted to the United States for permanent residence -

be and the samé is hereby approved.

416


Interim Decision #1907

MATTER OF KIM
In Visa Petition Proceedings
A-17238448
Decided by Regional Commissioner October 4, 1968
member
of the professions within the meaning of section 101(a) (32) of the Immigration and Nationality Act, as amended, he is ineligible for preference
status under section 203(a) (3) of the Act since he is not presently engaged, nor does he intend to engage, in the profession of pharmacist.

NvtAvithstanding beneficiary is a qualified pharmacist and, fence, a

ON BEHALF OF PETITIONER:

John F. Sheffield, Esquire
412 West Sixth Street
Los Angeles, California 90014

This case comes forward on appeal from the decision of the
District Director, Los Angeles, who denied the petition on August
13, 1968 in that the petitioner did not intend to engage in his
qualifying profession in the United States.
Oral argument was requested and granted. Subsequently, counsel advised that he would not appear for oral argument. Decision
will be made on the record at hand.
The petitioner is a 29-year-old single male, a native and citizen
of Korea who was admitted to the United States as a visitor on
October 4, 1967 and granted extensions of stay in that status to
May 4, 1968. He filed the present petition for preference classification under section 203 (a) (3) of the Immigration and Nationality Act, as amended, as a member of the professions as a phar-,
macist on April 4, 1968.
The record shows that the petitioner was awarded a Bachelor
of Science degree in Pharmacy by a university in Korea in February 1962 and was granted a license to practice pharmacy in
Korea on March 25, 1963. From August 1962 to February 1965
he was employed as a pharmacist by an /infirmary unit of the
United States Army in Korea. From May 1965 to October 1967

he was self employed as a pharmacist in Korea, running his own
-

pharmacy, and since,November 1967 to the present time has been

16

Interim Decision #1907
employed by a clinical laboratory in Los Angeles as a laboratory
assistant testing blood and serums.
Section 101 (a) (32) of the Act, as amended, defines the term
"profession" as including but not being limited to architects, engineers, lawyers, physicians, surgeons and teachers in elementary
or secondary schools, colleges, academiei or seminaries.
In the Matter of Asunoion,11 I. & N. Dee. 660, it is stated :
Examination of the occupations named in section 101(a) (32) of the Act, indicates the following characteristics common to all: (1) recognition as a
member of those professions normally requires the successful completion of
a specified course of education on the college or university level, culminating
in the attainment of a specific type of degree or diploma; and (2) the attainment of such degree or diploma, is usually the minimum requirement for
entry into those occupations.

Pharmacy is a profession—Matter of Rabbami, 12 I. & N. Dec.
15. Pharmacy is listed as a specialty in Schedule A, Group II of
29 CFR 20 as covered by the blanket certification of the Secretary of Labor pursuant to section 212 (a) (14) of the Act.
Petitioner appears academically qualified as a pharmacist by
reason of his high education and past work experience in that
field. However, he is not now employed and has not indicated that
he will be employed in a professional occupation as a pharmacist.
He is, at present, employed as a laboratory assistant and in an
affidavit to an officer of this Service on July 25, 1968, stated he
intended "to continue with this employment permanently." Hefurther stated that he was registered as a clinical laboratory
technologist trainee and that after one year would be eligible for
a license as a laboratory technologist. The occupations of laboratory assistant, clinical laboratory technologist, and laboratory
technologist are not classifed as professional occupations. The academic training and work experience required for entry into
these occupations is less than a baccalaureate degree and does not
meet the high education and experience requirements characteris
tic of the professions.
Matter of Shin, 11 I. & N. Dec. 686, holds that: "The mere acquisition of a, degree or equivalent experience does not, of itself, qualify a person as a member of a "profession."
The Matter of Semeriion, 11 I. & N. Dec. 751, points out that
while a person may be academically qualified for a profession,
that person must also establish that he intends to engage in that
qualifying occupation in the United States to be eligible for preference classification under section 203 (a) (3) of the Act.
In the present case petitioner is employed in a nonprofessional
occupation and has indicated that he intends to continue in that

17

Interim Decision #1907
nonprofessional occupation permanently. While he may be academically qualified as a member of the professions as a pharmacist, he does not intend to engage in that profession. The decision
of the District Director was proper. The petitioner is not eligible
for the preference classification he seeks. The appeal will be dismissed.
The denial of the petition is without prejudice to the consideration for sixth preference classification, should the petitioner obtain a definite offer of employment from a prospective employer
in the United States seeking his services and an appropriate certification be issued by the Department of Labor.
ORDER: It is ordered that the appeal be dismissed.

18


Interim Decision #1875

MAT=

In

OF

Sion(

Visa Petition Proceedings
A-17583656

Decided by District Director May 17, 1968
Sixth preference classification as a secretary is accorded the beneficiary of a visa
petition filed by an agency which furnishes secretarial, stenographic and other
office personnel services to client firms on a temporary basis, since the petition.
ing agency, which will pay beneficiary directly and has guaranteed her fulltime permanent employment for 52 weeks a year with fringe benefits, is the
actual employer of the beneficiary and the employment offer is not of a seasonal or temporary nature.

The petitioner is a well-established company which operates two
distinct divisions in New York City and in other cities of the United
States and the world. One division operates as an employment service
in the traditional sense, accepting job offers from employers and making referrals of applicants to those jobs. If the applicant is hired, he
becomes the actual employee of the company to -whom the referral was
made. The other division of the company operates as an agency which
furnishes secretarial, stenographic, and other office personnel to client
firms which desire the services of such personnel on a full-time but
temporary basis. Personnel utilized by this division, however, are considered by the petitioner to be its employees. The petitioner desires
to employ the beneficiary as a secretary in this division of the company.
In order to establish the beneficiary's eligibility for sixth preference
classification the offer of employment must not be "of a temporary or
seasonal" nature within the meaning of section 203 (a) (6) of the Immigration and Nationality Act, as amended, and the petitioner must
qualify as •the actual employer of the beneficiary.
The beneficiary completed a two-year full-time secretarial training
program at the North-East Essex Technical College, Colchester, England in July 1957. Her program of instruction included typing,
stenography, accounting, and general commercial subjects. She has
been employed as a secretary by various firms in England since September 1957, and her employers have included a bank, a hospital, a
publishing house, and various commercial firms. The beneficiary in772

J.ILUITILLI. Lension.

*F.1.2510

tends to engage in her occupation in the United States as a secretary
having accepted a position with the Brook Street Bureau of Mayfair,
Ltd., New York New York.
The occupation of secretary is on the list of occupations for which
the Secretary of Labor has precertified that there is a shortage of
employable and willing persons in the United States pursuant to section 212(a) (14) of the Act. The list of precertified occupations applies
to all areas of the United States unless a particular area is specifically
excepted. New York City is not an excepted area.
The division of the petitioning company that furnishes specialized
and general office personnel to client firms on a temporary basis, guarantees to all of its personnel desiring it full-time permanent employment based upon the prevailing 35 to 37y2 hour week in New York
City. This was determined. from supporting documentation submitted

with the petition and from an interview of the petitioner's personnel
director at this office on May 6, 1968. In the first year of employment
the guarantee consists of a contract by the Brook Street Bureau to
pay an employee a guaranteed weekly wage based upon the prevailing
minimum 35 hour week even though the services of the employee may
not be assigned to client firms, but utilized. wi hin the offioes of the
Brook Street Bureau. In the second and succeeding years the petitioner meets the guarantee as a result of the currently prevailing high
demand for the services of skilled temporary office personnel. An officer of the petitioning company stated under oath that during her
three year tenure with the company, the Brook Street Bureau had
never failed to provide full-time employment to those requesting it
and that typical assignments range from several days to more than
three months.
The beneficiary will be paid directly by the Brook Street Bureau.
Client firms are billed by the petitioner for the services provided them.
The petitioner is fully responsible for making contributions to the
employee's social security, workmen's compensation, and unemployment insurance programs as well as for withholding Federal and
State income taxes. The petitioner, furthermore, offers its personnel
involved in temporary client services an opportunity to subscribe to
group insurance program and they receive a two week paid vacation upon the completion of 50 weeks of full-time employment.
In view of the fact that the petitioner has guaranteed the beneficiary
full-time permanent employment for 52 weeks a year with a. two week
paid vacation and other fringe benefits and that the beneficiary will
be paid directly by the petitioner who is responsible for all payroll
deductions and contributions, it is concluded that the petitioner qualifies as the actual employer of the beneficiary within the meaning and
requirements of the Immigration and Nationality Act, as amended.

773

Interim Decision 40875
Parenthetically, the division of the petitioner which deals only with
the referral of applicants to other employers as an employment agency
would not qualify as an actual employer when such applicants are
to be directly and permanently employed and paid by other individuals
or companies.
It is further concluded that the offer of employment is not "of a
seasonal or temporary nature" as required by section 203(a) (6) of the
Act, as amended.
ORDER: It is ordered that the sixth preference visa petition filed by
the Brook Street Bureau of Mayfair, Ltd. in behalf of Susan Mary
Smith be and bhe same is hereby approved.

774


Interim Decision #1651

MATT= or NaicaxsuoawA.
In Visa Petition Proceedings,
A-12225749

Decided by District Director September 1, 1966
Since en entomologist is a member of the professions within the meaning of
section 101(a) (52), Immigration and Nationality Aet, as amended by

P.L. 89-236, and since beneficiary, who has a master of science degree in
entomology and a doctor's degree in insect toxicology, is a qualified entomologist, a visa petition is approved to accord him preference classification
Tinder section 203(a) (8) of the Act, as amended.

The petition was filed to classify the beneficiary as a, preference
immigrant under section 203(a) (3) of the Immigration and Nationality Act, as amended, as a member of the professions, based upon
his qualifications as an entomologist.
The beneficiary is a 33-year-old male citizen of Japan who is presently residing in Ames, Iowa with his wife. The beneficiary ieceived a bachelor's degree in Tokyo University, Tokyo, Japan in
1957. In 1961 he received a master of science degree in entomology
from Iowa State University. He received his doctor's degree in
insect toxicology from Iowa State University, Antes, Iowa May 29,
1964. While doing graduate work, he was employed as a graduate
assistant and research associate to do research at Iowa, State University. Since October 1965 he has been employed as research associate to do research on the biochemical toxocology of insecticides
by Iowa State University, Ames, Iowa. The beneficiary intends to
engage in his profession as an entomologist in the United States.
The Department of Labor has issued. a certification pursuant to
section 212(a) (14) of the Act, as amended. The certification is to
the effect that there are not sufficient qualified entomologists available in the United. States and that the employment of such entomologist will not adversely affect the wages and working conditions of
workers in the United States similarly employed.
The Dictionary of Occupational Titles, Volume II, second edition,
prepared by the United States Department of Labor listed entoinol843

Interim Decision #1651
ogists among professional occupations wider code 0-35.30. In. the
third edition of this publication entomologists are listed under professional, technical, and managerial occupations, code 041.081. Ocenpfitions in this biological science group are concerned with research
involving insects and their relation to plant and animal life.
The Occupational Outlook Handbook, 1966-67 edition, of the
United States Department of Labor, states that young people seeking professional careers in the biological sciences should plan to obtain an advanced degree, preferably a doctor of philosophy degree.
This Handbook further states that a bachelor's degree with a major
in one of the 'biological sciences is adequate preparation for begin-

.ning jobs; that a:master's degree can qualify for most entry positions in applied research and for some types of positions in college
teaching and basic research; and that the doctor of philosophy degree is generally required for higher level college teaching positions,
for independent research, and for positions involving the administration of research.
From.the foregoing it has been established that the beneficiary is
a qualified entomologist and as such is a member of the professions
within the meaning of sections 101(a) (32) and 203(a) (3) of the
Act, as amended. The petition will, therefore, be approved.
it 49 ordered that the petition be and the same. is hereby approved.

844


Interim Decifion #2449

MATTER OF PIOQUINTO
In Exclusion Proceedings
A-20542417

Decided by Board November 19, 1975
(1) An individual placed on a Temporary Disability Retired List (TDRL) by the United
States Navy is, for the purposes of the Immigration and Nationality Act, a member of
the Armed Forces.
(2) Where an dim, subsequent to enlistment in the United States Navy in the Philippines, was placed on a Temporary Disability Retired List (TDRL); he thereafter
arrived in the United States under official orders of the U.S. Navy, and was paroled into
this country, he is not, upon revocation of his parole, amendable to exclusion proceedings since under 8 CFR 235.1(c), an alien member of the Armed Forces coming to the
United States -order official orders is not subject to the exclusion provisions of the act.
EXCLUDABLE: Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant—no
visa.
ON BEHALF OF APPLICANT: Lloyd A. Tasoff, Esquire
Continental Building, Suite 1016
408 South Spring Street
Los Angeles, California 90013

This is an appeal from a decision of an immigration judge denying the

applicant's motion to reopen his exclusion proceedings. The appeal will
be sustained.
The applicant is a male alien who is a native and citizen of the
Philippines.In
l 1968 he enlisted in the United States Navy in the
Philippines. On January 24, 1972, the United States Navy placed the
applicant on a Temporary Disability Retired List (TDRL). He was
given a 100% disability rating. On February 22, 1974, the applicant
arrived at Travis Air Force Base, California apparently on a chartered
military flight. He did not then have in his possession a visa to enter the
United States. However, he did have orders from the United States
Navy directing that he appear in San Diego, California, before a physical evaluation board.
The Immigration and Naturalization Service thereafter paroled the
applicant into the United States pursuant to section 212(d)(5) of the Act.
508

Interim Decision #2449
The applicant apparently appeared before the physical evaluation
board. His parole was thereafter revoked and he was placed in exclusion
proceedings. On December 18, 1974, the immigration judge found the
applicant inadmissible to the United States under section 212(a)(20) of
the Act as an immigrant without an immigrant visa.
Section 284 of the Act provides:
Nothing in this title shall be construed so as to limit, restrict, deny, or affect the coining
into or departure from the United States of an alien member of the Armed Forces of the
United States who is in the uniform of, or who bears documents identifying him as a
member of, such Armed Forces, and who is coming to or departing from the United

States under official orders or permit of such Armed Forces: Provided, That nothing
contained in this section shall be construed to give to or confer upon any such alien any
other privileges, rights, benefits, exemptions, or Immunities under this Act, which ate
not otherwise specifically granted by this Act.
Although the applicant does not appear to have been serving on active
duty in the Navy, he was traveling under official orders. Copies of these
orders are in the record of proceedings. At issue is whether or not the
applicant is to be considered a "member" of the Armed Forces for
purposes of section 284 of the Act.
The Immigration and Nationality Act does not define "member of the
Armed Forces." "Member of the naval service" and "enlisted member"
are defined in 10 U.S.C. 5001(a)(3) and 5001(a)(4), respectively. Those
definitions do not necessarily include or exclude from their definitions
naval personnel who are on the temporary disability retired list, Department of Navy regulations, which relate to disability, define
"member" to include a "retired member of the naval service." 32 CFR
725.220.
Furthermore a review of the statutory provisions relating to temporary disability retired lists convinces us that the applicant is a member
of the Armed Forces as that phrase is used in section 284 of the Act. 10
U.S.C. 1202 pertains to a member of the Armed Forces who has served
on active duty for more than 30 days, and who would be elegible for
retirement "but for the fact that his disability is not determined to be of
a permanent nature." Under this section,
the Secretary [of the appropriate armed service] shall, if he also determines that
accepted medical practice indicates that disability may be of a permanent nature, plare
the member's name on the temporary disability retired list with retired pay _
10 U.S.C. 1203 makes clear that there is a distinction to be drawn
between those placed on TDRL and those who have been separated
from the armed service.
Individuals who have been placed upon TDRL may be required at
least once every eighteen months to submit to examination. 10 U.S. C.
1210. As a result of these examinations, an individual on TDRL may be
50 9

'

Interim Decision #2449
retired, 1 separated 2 or returned to active duty. 3 Additionally, 10
U.S. C.1210 (g) provides:
Any member of the Armed Forces whose name is on the temporary disability retired
list, and who i s required to travel to submit to a physical examination under subsection
(a), is entitled to the travel and transportation allowances authorized for members in his
retired grade traveling in connection with temporary duty while on active duty. (Emphasis added.)

It thus appears that Congress viewed individuals on TDRL as members
of the Armed Forces. Further, Article 2(4) of the Uniform Code of
Military Justice 10 U.S.C. 802(4), provides that retired members of a
regular component of the Armed Forces who are entitled to pay are
subject to the code of military justice. This category appears to describe
individuals on TDRL, who, as noted above, receive retired pay.
We are satisfied from all these provisions that an individual on a
temporary disability retired list is, for purposes of the Immigration and
Nationality Act, a member of the Armed Forces. We note that some of
the official forins concerning the applicant refer to him as having been
discharged, and that he himself, in a signed statement, stated he was
"discharged". In view of the statutory provisions we have considered,
the documents, which also indicate the applicant was placed on the

temporary disability retired list, appear to contain a clerical error with
respect to the use of the word "discharge". The applicant's own statement appears to have used the word discharged in its colloquial sense
and to have disregarded the niceties between removal from active duty
and complete separation from the Navy.
Under 8 CFR 285.1(c), an alien member of the Armed Forces coining
to the United States under official orders is not subject to the exclusion
provisions of the Act. Accordingly, these proceedings must be terminated and the respondent's appeal sustained.
It is possible that as a result of his appearing before the physical
evaluation 'board, the applicant has been separated from the Navy.
There is some indication in the record that this may have occurred. If so,
the applicant may now be deportable. The proviso of section 284 of the
Act prevents an alien, such as the applicant, from obtaining special
immigration benefits. However, if it is determined that the applicant is
in the United States in violation of law, he should be given an opportu10 U.S.C. 1210 (c), 1201 and 1204.

10 U.S.C. 1210(e), 10 U.S.C. 1203, 1206.
a 10 U.S.C. 1210(f), 10 U.S.C. 1211.
4 We note that. Congress has provided for full and fair hearing on the medical disabilities
of servicemen. See 10 U.S.C. 1214. The United States Navy conducts physical evaluation
boards at only tluee locations, all of which ate within the United States. United States
Navy, Disability Evaluation Manual, NAVSD P-1980 at 5=1 (October, 1970).
2

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pity to depart voluntarily before the institution of deportation proceedings. Matter of Loo, 13 I. & N. Dec. 182 (BIA 1969).
ORDER: The appeal is sustained.
Further order: The exclusion proceedings are terminated.

511