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Matter of F-R-A-, Respondent
Decided February 3, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The amount of forfeiture ordered in a criminal proceeding may be considered in
determining whether a crime of fraud or deceit resulted in a loss to a victim or victims
exceeding $10,000 pursuant to section 101(a)(43)(M)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2018), if the amount set forth in the order
is sufficiently tethered and traceable to the conduct of conviction.
FOR RESPONDENT: Enedina G. Kassamanian, Esquire, Henderson, Nevada
FOR THE DEPARTMENT OF HOMELAND SECURITY: Rachel Silber, Associate
Legal Advisor
BEFORE: Board Panel: O’CONNOR and GOODWIN, Appellate Immigration Judges;
LIEBMANN, Temporary Appellate Immigration Judge.
O’CONNOR, Appellate Immigration Judge:

In a decision dated June 12, 2020, an Immigration Judge denied the
respondent’s motion to terminate his removal proceedings. The Immigration
Judge also denied the respondent’s application for asylum and withholding
of removal under sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration
and Nationality Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2018),
and for protection under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for
signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture”). The
respondent has appealed from this decision and has filed a motion to remand.
Upon our request, both parties submitted supplemental briefing on the
respondent’s removability. The appeal will be dismissed and the motion to
remand will be denied.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Ghana who entered the United
States in 1992 and adjusted to lawful permanent resident status in 2013. At
some point, the respondent became involved in a multi-million dollar
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conspiracy to defraud cell phone users. According to the superseding
criminal indictment in the record, the respondent owned a company that
provided specialized digital content for a fee to cell phone users via text
message. The respondent was approached by owners of a mobile aggregator
company, who devised a plan to unknowingly and automatically subscribe
cell phone users to receive content from the respondent’s company, which,
in turn, charged these users a monthly premium fee through their mobile
carrier.
The cell phone users never consented or agreed to the
auto-subscription or resulting fee. The individuals at the mobile aggregator,
and the respondent, then obtained that fraudulent fee from the mobile carrier,
which mistakenly believed that the cell phone users had authorized the
purchase of this respondent’s content. Based on this scheme, the respondent
pled guilty in 2017 to conspiracy to commit wire fraud in violation of 18
U.S.C. § 1349 and § 1343 (2012). 1
The Department of Homeland Security (“DHS”) placed him in removal
proceedings, charging him with removability under section 237(a)(2)(A)(iii)
of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2018), as a respondent convicted
of an aggravated felony involving fraud or deceit under section
101(a)(43)(M)(i) of the Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2018). 2 The DHS
lodged an additional charge of removability under the same provision,
charging the respondent with having been convicted of an aggravated felony
attempt or conspiracy under section 101(a)(43)(U) of the Act. The DHS also
submitted an additional factual allegation: that the respondent was ordered
to pay forfeiture traceable to his criminal offense in the amount of
$346,717.08.

1

Although the respondent pled guilty under the conspiracy provision in 18 U.S.C. § 1349,
the judgment of conviction issued by the United States District Court for the Southern
District of New York contained a clerical error, inadvertently stating that he was convicted
under 18 U.S.C. § 1343, which defines the offense of fraud by wire, radio, or television.
The district court later corrected the clerical error regarding the statute of conviction. The
respondent has not demonstrated he was prejudiced by this clerical error because it is
apparent from the record that all parties understood that the respondent was convicted
under “conspiracy to commit wire fraud,” despite the clerical error regarding the statute
number. Additionally, the respondent admitted the allegation in the notice to appear that
he was convicted of this offense and the charges of removability remain the same.
Likewise, the respondent was not prejudiced by his prior counsel’s purported failure to
inform the court of this clerical error. See Flores v. Barr, 930 F.3d 1082, 1087 (9th Cir.
2019) (per curiam) (acknowledging that a respondent must demonstrate that he or she
suffered prejudice as a result of his or her counsel’s deficient performance).
2
The DHS also charged the respondent under section 237(a)(2)(A)(i) of the Act for
having been convicted of a crime involving moral turpitude within 5 years after admission,
but this charge was later withdrawn.

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The respondent denied all charges and two of the factual allegations
concerning the amount of restitution and/or forfeiture he was ordered to pay
traceable to his offense. He applied for asylum, withholding of removal, and
protection under the Convention Against Torture.
The Immigration Judge found the respondent removable as charged and
concluded that his conviction is one for a particularly serious crime that bars
him from applying for asylum and withholding of removal under the Act and
the Convention Against Torture. The Immigration Judge also concluded that
the respondent had not met his burden to establish eligibility for deferral of
removal under the Convention Against Torture.

II. REMOVABILITY
The DHS has the burden of proving by “clear and convincing evidence”
that is “reasonable, substantial, and probative,” section 240(c)(3)(A) of the
Act, 8 U.S.C. § 1229a(c)(3)(A) (2018), that the respondent is removable as
charged as “[an] alien who is convicted of an aggravated felony,” section
237(a)(2)(A)(iii) of the Act. Section 101(a)(43)(M)(i) of the Act defines an
aggravated felony as “an offense that . . . involves fraud or deceit in which
the loss to the victim or victims exceeds $10,000.”
The parties do not dispute that the respondent’s conviction involved fraud
or deceit. Therefore, the only remaining issue is whether his conviction
resulted in a loss to his victim or victims exceeding $10,000. We review
whether the respondent’s offense constitutes an aggravated felony under
a de novo standard. See 8 C.F.R. § 1003.1(d)(3)(ii) (2021).
To determine if the loss to the respondent’s victims exceeded $10,000,
we apply the “circumstance-specific approach.” Nijhawan v. Holder, 557
U.S. 29, 38–39 (2009). This approach requires us to “look to the facts and
circumstances underlying an offender’s conviction.” Id. at 34. Under recent
case law from the United States Court of Appeals for the Ninth Circuit, in
whose jurisdiction this case arises, we are not limited to reviewing a specific
set of documents under a circumstance-specific approach; rather, we “are
generally free to consider any admissible evidence” to determine the loss
amount. Orellana v. Mayorkas, 6 F.4th 1034, 1041 (9th Cir. 2021).
However, in doing so we must focus narrowly on loss amounts that are
tethered to the counts of conviction. Nijhawan, 557 U.S. at 42; see also
Orellana, 6 F.4th at 1043.
It is well established that an order of restitution may be relied upon to
determine if the loss to the victim was greater than $10,000, as long as that
order is sufficiently tethered to the convicted conduct and shows the actual
loss from the offense of conviction. See Nijhawan, 557 U.S. at 42–43 (noting
the restitution order demonstrates that the losses to the victims were greater
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than $10,000); see also Fan Wang v. Att’y Gen. of U.S., 898 F.3d 341, 349–50
(3d Cir. 2018) (considering the information, plea colloquy, presentence
investigation, total loss specified in the judgment, and the restitution order in
determining that the loss to the victim exceeded $10,000). The respondent
argues that, unlike an order of restitution, we cannot rely on an order of
forfeiture to determine whether a convicted offense involved a loss to the
victims exceeding $10,000.
For the following reasons, we conclude that the amount of forfeiture, like
the amount of restitution, may be considered to determine the amount of loss
to the victims under section 101(a)(43)(M)(i) if the proceeds received are
sufficiently tethered and traceable to the conduct of conviction. Forfeiture is
a punitive tool used by the Government in sentencing to “separat[e] a
criminal from his ill-gotten gains.” Caplin & Drysdale, Chartered v. United
States, 491 U.S. 617, 629 (1989). In practice, “an order of forfeiture may not
feel much different from an order of restitution, because both orders
contemplate cash payments in similar amounts.” United States v. Torres,
703 F.3d 194, 203 (2d Cir. 2012). However, restitution is meant to
compensate victims for harm suffered, while forfeiture is a punishment to the
defendant, meant to take away the proceeds received from the criminal
actions. See id. Restitution and forfeiture may be ordered “in the same or
similar amounts” because “restitution is calculated based on the victim’s loss,
while forfeiture is based on the offender’s gain.” United States v. McGinty,
610 F.3d 1242, 1247 (10th Cir. 2010) (citation omitted). Thus, if the loss the
victims experienced is equal to the proceeds the offender gained, then the
amount ordered for forfeiture will be similar to the amount of restitution
ordered.
Only property closely tied to the criminal conduct and tainted by the
crime can be subject to forfeiture. See United States v. Thompson, 990 F.3d
680, 687 (9th Cir. 2021). This concept is embodied in the Federal statutes
governing forfeiture, requiring in every instance the tainted property be
identified as being related to the criminal actions and then removed from the
defendant. See 18 U.S.C. § 982 (2018); 21 U.S.C. § 853 (2018); see also
18 U.S.C. § 981 (2018) (listing property subject to civil forfeiture, which can
be ordered in criminal proceedings through 28 U.S.C. § 2461 (2018)).
Additionally, in conspiracy convictions, only the proceeds personally
acquired by an individual conspirator may be subject to forfeiture—there is
no joint and several liability. See Honeycutt v. United States, 137 S. Ct. 1626,
1632 (2017) (determining that forfeiture is only limited to tainted property
and therefore “does not countenance joint and several liability, which, by its
nature, would require forfeiture of untainted property”). Therefore, in
application, only specific proceeds received by the defendant can be subject

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to forfeiture, rather than the amount that was received by the entire criminal
enterprise.
We therefore conclude that the DHS can meet its burden of demonstrating
a loss in excess of $10,000 to the victims of an offense involving fraud or
deceit under section 101(a)(43)(M)(i) by showing that a respondent was
subject to criminal forfeiture for such an amount and that the forfeiture
ordered was traceable and sufficiently tethered to the conviction. See Chiao
Fang Ku v. Att’y Gen. U.S., 912 F.3d 133, 140 (3d Cir. 2019) (considering a
forfeiture allegation contained in the information and holding that
a conviction under 18 U.S.C. § 1343 constituted an aggravated felony under
section 101(a)(43)(M)(i)); Eversley-MacClaren v. Holder, 578 F. App’x 664,
666 (9th Cir. 2014) (determining that the Board appropriately relied on
a forfeiture order, along with other sentencing documentation, to find the loss
to the victims exceeded $10,000 under section 101(a)(43)(M)(i));
cf. Barikyan v. Barr, 917 F.3d 142, 146–47 (2d Cir. 2019) (holding that an
order of forfeiture showing a respondent laundered more than $10,000,
established that he was convicted of aggravated felony money laundering
pursuant to section 101(a)(43)(D) of the Act).
In the instant case, the respondent was convicted of conspiracy to commit
wire fraud under 18 U.S.C. §§ 1349 and 1343. He agreed in his plea
agreement that he was subject to forfeiture for his offense under 18 U.S.C.
§ 981(a)(1)(C) (subjecting to forfeiture all property derived from proceeds
traceable to the offense, or a conspiracy to commit the offense). See
Thompson, 990 F.3d at 683 (involving a defendant convicted under 18 U.S.C.
§§ 1349 and 1343 who was subject to forfeiture under 18 U.S.C.
§ 981(a)(1)(C)); United States v. Day, 524 F.3d 1361, 1375–76 (D.C. Cir.
2008) (describing when a forfeiture order is appropriate under 18 U.S.C.
§ 981(a)(1)(C)). The sentencing judge applied the Supreme Court’s decision
in Honeycutt in determining the forfeiture amount, specifically linking this
amount to proceeds directly traceable to the respondent. See Thompson, 990
F.3d at 689 (determining Honeycutt applies to forfeiture under 18 U.S.C.
§ 981(a)(1)(C)); see also Honeycutt, 137 S. Ct. at 1632–35 (holding that
forfeiture is limited to property or proceeds in the defendant’s possession that
are directly traceable to his or her conduct). According to the amended
judgement, the respondent was ordered to pay “[f]orfeiture traceable to the
offense, in the amount of $346,717.08.” The amended judgment and the
letter from the Federal prosecutor both explicitly state that the $346,717.08
forfeiture amount was traceable to the respondent’s criminal conduct of
conspiring to defraud cell phone customers. 3 This amount is thirty-four times
greater than $10,000.
3

The respondent asserts that the prosecutor’s letter is not sufficiently reliable to establish
that he agreed to the $346,717.08 forfeiture amount. However, as we previously noted,

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Beyond the forfeiture amount, other evidence supports the Immigration
Judge’s finding that the respondent’s conviction resulted in a loss to the
victims greater than $10,000. The respondent, through his criminal defense
counsel, admitted in his plea deal that his actions caused a loss greater than
$550,000 to his victims, resulting in a sentencing enhancement. U.S.
Sentencing Guidelines Manual § 2B1.1(b)(1)(H) (U.S. Sentencing Comm’n
2017) (providing for a 14-level enhancement when the loss to the victims is
greater than $550,000 but less than $1.5 million). The district judge
recognized this admission during the sentencing hearing. Further, the
respondent’s indictment, to which he pled guilty, stated that the respondent
received $600,000 in gross payments from the mobile aggregator,
a “significant portion” of which came from auto-subscription proceeds
obtained from the cell phone customers. Moreover, the prosecutor’s letter to
the district judge, relaying the amount of forfeiture agreed upon, states that
the Government intended to distribute that money to the victims upon their
identification, indicating that the amount of forfeiture was directly
attributable to the amount the victims lost. See 18 U.S.C. § 981(e)(6)
(explaining that the Government may transfer forfeited property “as
restoration to any victim of the offense giving rise to the forfeiture”).
The respondent argues that we cannot consider the forfeiture amount as
an indication of the loss to his victims because the forfeiture order incorrectly
listed legitimate funds, including funds he was given as advance payments
during a time in which he claims he believed the scheme was legal. The
respondent additionally argues that he invested some of his own money into
his company, which was inappropriately included in the forfeiture
calculation.
Whether or not the forfeiture amount included legitimate funds was
a topic for consideration during the respondent’s sentencing hearing. The
prosecutor asserted that the respondent should be ordered to pay $600,000 in
forfeiture, which the Government claimed was the amount that the
respondent actually received in payments. However, the respondent’s
when applying the circumstance-specific approach we may consider any admissible
documents. See Orellana, 6 F.4th at 1041. In immigration proceedings, the test for
admissibility is whether the evidence is probative, reliable, and fundamentally fair to the
parties. See Matter of Y-S-L-C-, 26 I&N Dec. 688, 690 (BIA 2015). The respondent has
not demonstrated that the letter from the prosecutor is inadmissible in this regard—the
letter appeared on letterhead from the prosecutor and was sent to the respondent’s criminal
counsel, resulting in the amended judgment including the forfeiture order. Additionally,
the respondent has not provided sufficient evidence that he did not, in fact, agree to this
forfeiture amount, or that the prosecutor’s letter does not accurately reflect the parties’
understanding of the amount traceable to the respondent’s conduct that resulted in a loss to
his victims. Therefore, we find the letter to be appropriately reliable to substantiate the
amount of forfeiture the respondent was ordered to pay.

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criminal defense counsel opposed that amount, claiming that $600,000 was
an incorrect number. Rather, the defense attorney argued that the amount
traceable to the respondent’s criminal actions was $346,000, minus $150,000
that went to a coconspirator. The respondent’s criminal defense counsel thus
asserted that the correct forfeiture amount, which reflects the tainted money
gained by the respondent, should have been $236,000. 4
Accordingly, even if the district court inappropriately included legitimate
funds in the forfeiture determination, the respondent’s own defense counsel
agreed that the respondent received at least $236,000 in fraudulent payments
from his victims, an amount well in excess of $10,000. We need not
determine the exact amount of loss, as long as there is no clear error in the
Immigration Judge’s determination that the loss to the victims was greater
than $10,000. Because the Immigration Judge’s findings are not clearly
erroneous, we agree with the Immigration Judge that the DHS met its burden
of establishing the $10,000 loss requirement under section 101(a)(43)(M)(i),
and the respondent’s arguments to the contrary are unavailing.
Finally, the respondent argues that we cannot rely on the forfeiture
amount because the victims of his crime were never identified. However,
section 101(a)(43)(M)(i) of the Act merely requires a “loss to the victim or
victims”; it does not require that the exact identity of the victim or victims
be known. The respondent fails to cite any authority establishing that victim
identification is an element of section 101(a)(43)(M)(i).
In any event, it is clear from the record that there were victims of the
respondent’s crime. Indeed, the sentencing judge applied an enhancement to
the respondent’s conviction because there were 10 or more victims,
specifically taking time to explain to the respondent the harm that his actions
may have had on his victims. We therefore agree with the Immigration Judge
that the DHS met its burden of establishing by clear and convincing evidence
that the respondent has been convicted of an aggravated felony involving
fraud or deceit under section 101(a)(43)(M)(i) of the Act in which the loss to
the victims exceeded $10,000. 5
4

We note that, before the respondent entered into an agreement with the prosecutors
regarding the forfeiture amount, the district judge was inclined to agree with the
Government that the amount traceable to the respondent’s offense was $600,000.
5
Although the respondent argues that his conviction is not sufficiently final for
immigration purposes because he filed an appeal from his criminal conviction, the
respondent has not provided sufficient evidence that an appeal has been filed and is still
pending. See Matter of J.M. Acosta, 27 I&N Dec. 420, 432 (BIA 2018) (holding that
a respondent must come forward with evidence that an appeal of a conviction has been
filed within the prescribed deadline). But see Brathwaite v. Garland, 3 F.4th 542 (2d. Cir.
2021) (disagreeing, in part, with our holding in Matter of J.M. Acosta). In fact, the DHS
submitted information that the respondent’s appeal of his criminal conviction to the Second
Circuit has been dismissed. Therefore, the respondent’s conviction is sufficiently final for

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We additionally conclude that the respondent’s conviction under
18 U.S.C. §§ 1349 and 1343, constitutes an aggravated felony under section
101(a)(43)(U) of the Act. First, the DHS has shown that the respondent was
convicted of generic conspiracy under section 101(a)(43)(U) based on his
conviction for Federal conspiracy under 18 U.S.C. § 1349. Second, as noted,
there is no dispute that the offense underlying this conspiracy involved “fraud
or deceit” within the meaning of section 101(a)(43)(M)(i). Third, it is
evident from the record that the potential loss to the victims exceeded
$10,000. See Matter of S-I-K-, 24 I&N Dec. 324, 326 (BIA 2007) (outlining
a “three-fold burden” the DHS must bear to establish that a respondent is
removable for an aggravated felony under sections 101(a)(43)(M)(i) and
(U)). Accordingly, we will affirm the Immigration Judge’s conclusion that
the respondent is removable as charged under section 237(a)(2)(A)(iii) of the
Act.

III. RELIEF AND PROTECTION FROM REMOVAL
A. Particularly Serious Crime
We agree with the Immigration Judge that the respondent’s conviction
for conspiracy to commit wire fraud constitutes a particularly serious crime
barring asylum and withholding of removal under the Act and under the
Convention Against Torture.
See sections 208(b)(2)(A)(ii), (B)(i)
241(b)(3)(B)(ii) of the Act; 8 C.F.R. § 1208.16(d)(2) (2021). The Act
prohibits the respondent from obtaining asylum or withholding of removal if
he has “been convicted by a final judgment of a particularly serious crime
[and is] a danger to the community of the United States.” Sections
208(b)(2)(A)(ii), 241(b)(3)(B)(iii) of the Act. Where the record “indicates
that one or more of the grounds for mandatory denial of the application for
relief may apply, the [applicant] shall have the burden of proving by
a preponderance of the evidence that such grounds do not apply.” Matter of
M-B-C-, 27 I&N Dec. 31, 33 (BIA 2017) (emphases omitted) (quoting
8 C.F.R. § 1240.8(d) (2016)).
As discussed above, the respondent’s conviction for conspiracy to
commit wire fraud is a conviction for an aggravated felony. This conviction
renders the respondent statutorily ineligible for asylum because it is one for
a particularly serious crime. See sections 208(b)(2)(A)(ii), (B)(i) of the Act.
Because the respondent was not sentenced to an aggregate term of
imprisonment of at least 5 years, however, his conviction is not automatically
immigration purposes, and the respondent was not prejudiced by prior counsel’s alleged
error in failing to inform the court of the purported lack of finality to his conviction. See
Flores, 930 F.3d at 1087.

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one for a particularly serious crime for purposes of withholding of removal.
See section 241(b)(3)(B) of the Act.
However, our analysis does not end there. We may conclude that an
offense is a particularly serious crime based on the nature of the conviction,
the type of sentence imposed, and the circumstances and underlying facts of
the conviction. See Matter of N-A-M-, 24 I&N Dec. 336, 342 (BIA 2007),
aff’d, N-A-M- v. Holder, 587 F.3d 1052 (10th Cir. 2009); Matter of
Frentescu, 18 I&N Dec. 244, 247 (BIA 1982), superseded by statute in part,
former section 243(h) of the Act, 8 U.S.C. § 1253(h) (1994), as recognized
in Miguel-Miguel v. Gonzales, 500 F.3d 941, 946 (9th Cir. 2007). Although
offenses against persons are more likely to be categorized as particularly
serious crimes, crimes against property may also be found to be particularly
serious. Matter of Frentescu, 18 I&N Dec. at 247. Additionally, aggravated
felonies are “one of the types of crimes ‘most likely to be’ particularly
serious.” Bare v. Barr, 975 F.3d 952, 962 (9th Cir. 2020) (citation omitted).
The nature of the respondent’s conviction, which involves attempting or
conspiring to obtain money or property through fraud, brings it within the
ambit of a particularly serious crime. See 18 U.S.C. §§ 1343, 1349; Matter
of N-A-M-, 24 I&N Dec. at 342; see also Arbid v. Holder, 700 F.3d 379, 385
(9th Cir. 2012) (affirming the Board’s conclusion that mail fraud is
a particularly serious crime). Thus, we may consider all reliable information
in determining whether the respondent’s crime is particularly serious. See
Bare, 975 F.3d at 964–65; Matter of N-A-M-, 24 I&N Dec. at 342.
As noted, the respondent was convicted based on his involvement in
a multi-million dollar conspiracy to defraud cell phone users. Specifically,
the respondent joined his coconspirators in a plan to register cell phone users,
without their knowledge or approval, to receive digital content from the
respondent’s company, which in turn charged the cell phone users a monthly
premium fee for that content through their mobile carrier. The respondent
and his coconspirators then obtained the fraudulent fee from the mobile
carrier. The respondent was sentenced to 33 months in prison for this
conduct and ordered to pay forfeiture in the amount of $346,717.08, which
was traceable to his conduct.
The Immigration Judge considered the respondent’s intentional
involvement in the criminal enterprise, the amount the respondent received
from the scheme, and the length of the respondent’s sentence for
imprisonment. Considering the totality of the circumstances, we agree with
the Immigration Judge that the respondent has been convicted of a
particularly serious crime. See Arbid, 700 F.3d at 385 (concluding that a
complex scheme to defraud victims of nearly $2 million that resulted in a
sentence of 16 months of imprisonment and a restitution order of $650,000
was particularly serious).
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The respondent asserts on appeal that he believed the business to be
legitimate at first. However, he pled guilty to willfully and knowingly
conspiring to defraud individuals. The respondent’s plea of guilty is
sufficient to constitute an admission that he knew he was defrauding his
victims. 6 See Fed. R. Crim. P. 11(b)(3) (2018) (requiring the district court to
determine that there is a factual basis for all elements of the charge before
accepting a guilty plea). Additionally, the indictment states that the
respondent was approached in 2012 by the mobile aggregator in order to
begin “auto-subscribing” customers to his content, which he then did—
a process that necessarily involves defrauding the cell phone customers who
did not authorize the subscription. We are therefore unpersuaded that the
respondent was unaware of the illegality of the venture.
The respondent also argues that the seriousness of the crime is diminished
because specific victims could not be identified. But a crime need not have
an identifiable victim to be particularly serious. See, e.g., Matter of R-A-M-,
25 I&N Dec. 657, 662 (BIA 2012) (concluding that the crime of child
pornography is particularly serious because, even though the respondent had
not harmed an identifiable victim, his offense, by its nature, “contributed to
the sexual abuse of children” generally). Further, the judge at the
respondent’s sentencing hearing emphasized that the respondent’s criminal
actions harmed 10 or more real people.
We likewise find unavailing the respondent’s argument that his
conviction was not serious because he was involved in the scheme for
a shorter period of time than his coconspirators. Despite the respondent’s
shorter involvement, he nonetheless obtained $346,717.08 in “ill-gotten
gains” from the fraudulent scheme. Caplin & Drysdale, Chartered, 491 U.S.
at 629. Therefore, considering the nature and seriousness of the crime and
the scope of the harm caused, we agree with the Immigration Judge that the
respondent’s conviction is for a particularly serious crime. He is therefore
ineligible for asylum and withholding of removal under the Act and under
the Convention Against Torture. See sections 208(b)(2)(A)(ii), (B)(i),
241(b)(3)(B)(ii) of the Act; 8 C.F.R. § 1208.16(d)(2).
B. Convention Against Torture
The Immigration Judge also properly denied the respondent’s request for
deferral of removal under the Convention Against Torture. See 8 C.F.R.
§ 1208.17 (2021). The respondent contends on appeal that he will be tortured
6

We note that while we may consider the facts of the respondent’s conviction in
determining whether his crime was particularly serious, we cannot “go beyond the judicial
record to determine the [respondent’s] guilt or innocence.” Matter of C-A-S-D-, 27 I&N
Dec. 692, 700 (BIA 2019) (citation omitted).

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in Ghana because of his political beliefs and tribal affiliation. The respondent
expressed his opposition to the ruling political party in an online manifesto
while in the United States. In 2017, the Ghanaian police questioned his
brother regarding the respondent’s manifesto and his monetary assets, and
then extorted the respondent’s brother for money.
However, the respondent does not contest the Immigration Judge’s
finding that he did not experience past torture in Ghana. See 8 C.F.R.
§ 1208.16(c)(3)(i). We also discern no clear error in the Immigration Judge’s
factual finding that the respondent could avoid torture by relocating within
Ghana. See 8 C.F.R. §§ 1003.1(d)(3)(i), 1208.16(c)(3)(ii). Further, we agree
with the Immigration Judge’s assessment that, even if the respondent is
harmed upon his return to the country, the harm he would likely suffer would
not amount to torture. See 8 C.F.R. § 1208.18(a)(2) (2021) (“Torture is an
extreme form of cruel and inhuman treatment and does not include lesser
forms of cruel, inhuman or degrading treatment or punishment that do not
amount to torture.”); see also Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir.
2013) (affirming the Board’s conclusion that beatings and economic
deprivation did not rise to the level of torture).
We recognize, as the Immigration Judge did, that there are reports of
corruption and abuse within the Ghanaian Government. However, these
conditions are not specific to the respondent and are insufficient to meet the
respondent’s burden of proving it is more likely than not he will be tortured
in Ghana. See 8 C.F.R. § 1208.16(c)(2); see also Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (stating that generalized
evidence of violence and crime in the country of removal is insufficient to
satisfy the more likely than not standard for protection under the Convention
Against Torture). Additionally, the 2019 country conditions report from the
Department of State, which the respondent submitted as evidence in support
of his claim, states that there were “no reports of political prisoners or
detainees,” that “tribal leaders and chiefs are empowered to regulate land
access and usage within their tribal areas,” and that “[v]illage and other
traditional chiefs can mediate local matters and enforce customary tribal
laws.” 7 Because the evidence does not support the respondent’s claim that it
7

We may take administrative notice of the contents of the State Department report
because it is an official document. See 8 C.F.R. § 1003.1(d)(3)(iv) (providing that the
Board may take administrative notice of the contents of official documents). Notably, the
facts we cite above from the country conditions report, which the respondent submitted in
support of his claim, existed at the time of the respondent’s hearing and the respondent had
an opportunity to address the contents of the report before the Immigration Judge. Cf.
Circu v. Gonzales, 450 F.3d 990, 993–95 (9th Cir. 2006) (providing that due process
requires a respondent be given notice that a document will be considered and an
opportunity to explain why the document should not be considered).

470

Cite as 28 I&N Dec. 460 (BIA 2022)

Interim Decision #4037

is more likely than not he will be tortured in Ghana with the acquiescence of
an official or an individual acting in an official capacity, we agree with the
Immigration Judge that the respondent did not meet his burden of
establishing his eligibility for Convention Against Torture protection.

IV. OTHER ISSUES
The respondent asserts on appeal that his due process rights were violated
during his removal proceedings for a myriad of reasons. First, the respondent
asserts that he was not properly provided notice of the allegations and
charges
in
the
Form
I-261
(Additional
Charges
of
Inadmissibility/Deportability). However, the Form I-261 was served on the
respondent’s counsel by regular mail, and notice to the respondent’s counsel
constitutes notice to the respondent. See 8 C.F.R. § 1292.5(a) (2021); see
also Matter of Barocio, 19 I&N Dec. 255, 259 (BIA 1985). Moreover,
contrary to the respondent’s appellate assertion that he was not given the
opportunity to address the new allegation and charge, the record indicates
that the respondent’s attorney denied the additional allegation and charge
contained in the Form I-261.
The respondent additionally argues that the absence from the record of
a digital audio recording for the hearing on April 13, 2020, violated his due
process rights. The record indicates, however, that the Immigration Judge
remedied this error by conducting pleadings for a second time on June 12,
2020. Thus, the respondent has not demonstrated that he was deprived of a
full and fair hearing. See Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir.
2011) (explaining that to establish the he or she was not afforded a full and
fair hearing, a respondent must demonstrate that “the proceeding was ‘so
fundamentally unfair that [he or she] was prevented from reasonably
presenting his [or her] case’” (citation omitted)).
The respondent also filed a motion to reopen because he allegedly
received ineffective assistance of counsel. We construe this motion as
a motion to remand. See 8 C.F.R. § 1003.2(c)(4) (2021). In this motion, the
respondent alleges his attorney before the Immigration Judge inappropriately
submitted evidence regarding his order of forfeiture, did not sufficiently
argue that his order of forfeiture was incorrectly calculated, and did not let
the respondent personally contest the allegations and charges on his notice to
appear. These arguments challenge his prior counsel’s strategic decisions
and do not establish that prior counsel was ineffective. See Jurado v. Davis,
12 F.4th 1084, 1100 (9th Cir. 2021) (noting that there is “a strong
presumption of effective assistance of counsel . . . and wide latitude is given
to . . . counsel in making tactical decisions”), cert. docketed, No. 21-6954
(U.S. Jan. 25, 2022); Matter of B-B-, 22 I&N Dec. 309, 310 (BIA 1998)
471

Cite as 28 I&N Dec. 460 (BIA 2022)

Interim Decision #4037

(noting that “subsequent dissatisfaction with a strategic decision of counsel
is not grounds to reopen” based on ineffective assistance); cf. United States
v. Lopez-Chavez, 757 F.3d 1033, 1042 (9th Cir. 2014) (finding ineffective
assistance where counsel conceded removability when there was clear
precedent establishing that the respondent was not removable as charged).
As such, we will deny the respondent’s motion to remand on the basis of
ineffective assistance of counsel. Accordingly, the respondent’s motion to
remand is denied and his appeal is dismissed.
ORDER: The respondent’s motion to remand is denied.
FURTHER ORDER: The respondent’s appeal is dismissed.

472


Interim Decision #2481

MATTER OF MEDINA
In Deportation

Proceedings

A 11907736
-

Decided by Board March 19, 1976
A conviction for aggravated assault under section 12-2(a)(1) of Chapter 38 of the Illinois
Revised Statutes is conviction of a crime involving moral turpitude.
CHARGES:

Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)}—Arrested and deported,
no consent to reapply
Lodged: Act of 1952—Section 241(a)(4) [8 U.S.U. 1251(C4A—Convicted of two
crimes involving moral turpitude not arising out of a single
scheme of criminal misconduct, to wit: attempted burglary
and aggravated assault.
ON BEHALF OF RESPONDENT:
Joseph Iffinsky, Esquire
Minsky, Lichtenstein & Feiertag, P.C.
39 South La Salle St., Suite 705
Chicago, Illinois 60603

ON BEHALF OF SERVICE:
Jesse M. Sellers
Appellate Trial Attorney

In a decision dated January 6, 1975, the immigration judge denied the

respondent's applications for suspension of deportation and voluntary
departure, and ordered the respondent deported from the United
States. The respondent has appealed from the denials of discretionary
relief and from the finding of deportability under section 241(a)(4) of the
Immigration and Nationality Act. The appeal will be dismissed.
The respondent is a native and citizen of Mexico. The respondent has
entered the United States on several occasions. All of his entries,
however, have been illegal. The respondent evidently first entered the
United States in 1948 in search of work. He was deported in April of
1954, but returned approximately two years later. In 1960, he voluntarily agreed to go back to Mexico, but he again entered the United States
in March 1962. He has remained here ever since.
The respondent concedes that he is deportable under section 241(a)(1)
as an alien who was excludable at the time of his 1962 entry for failure to
obtain the required permission to reapply for admission after deportation. The respondent, however, challenges the immigration judge's fin611

Interim Decision #2481
ding that he is deportable under section 241(0(4) as an alien who at any

time after entry has been convicted of two crimes involving moral
turpitude. It is this latter finding which, if correct, makes the respondent statutorily ineligible for either suspension of deportation under
section 244:a) or voluntary departure under section 244(e) of the Act.
The respondent concedes that he has been twice convicted. In February of 1953, he was convicted of attempted burglary in Texas. The
respondent acknowledges that this crime involves moral turpitude. The

respondent's second conviction was in October of 1971 for aggravated
assault in Illinois.
The respondent raises several challenges to the finding that he is
deportable under section 241(a)(4). He initially argues that aggravated
assault in Illinois is not a crime involving moral turpitude.
The respondent was -convicted under Chapter 38, section 12-2(a)(1) of
the Illinois Revised Statutes, which provides:
12-2. Aggravated Assault
(a) A person commits an aggravated assault, when, in committing an assadlt, he:
(1) Uses at deadly weapon . . . .

There are numerous cases indicating that assault, or assault and
battery, with a deadly weapon is a crime involving moral turpitude. See
e.g. Gonzales v. Barber, 207 F.2d 398 (C.A. 9, 1953) afrd, 347 U.S. 637
(1954); U.S. ex rel. Morlacci v. Smith, 8 F.2d 663 (W.D.N.Y. 1925);
Matter of Ptasi, 12 I. & N. Dec. 790 (BIA 1968); Matter of Goodalle, 12
I. & N. Dec. 106 (BIA 1967); Matter of G—R—, 2 I. & N. Dec. 733 (BIA
1946; A.G. 1947). See also Matter of Baker, 15 I. & N. Dec. 50 (BIA
1974).
Counsel, however, argues that the presence of a criminal mental state
during the commission of the crime is not required for conviction under
the Illinois 'aggravated assault statute. Counsel basically contends that
aggravated assault is an absolute liability offense in Illinois. Counsel is
in error in this respect.

Various mental states which maybe the basis for criminal convictions
are specifically defined in Chapter 38 of the Illinois Revised Statutes:
section 4-4 defines Intent; section 4-6 defines Knowledge; seetion'4 - 6
defines Recklessness; and section 4-7 defines Negligence.
Absolute liability Crimes are governed by section 4-9, which provides:
4-9. Absolute Liability
A person may be guilty of an offense without having, as to each element thereof, one
of the mental states described in Sections 4-4 through 4-7 if the offense is a misdeameanor which is not punishable by incarceration or by a fine exceeding $500, or the
statute &firing the offense clearly indicates a legislative purpose to impose absolute

liability for the conduct described. Thus, absolute liability crimes in Illinois encompass
only those misdemeanors for which the punishment cannot exceed $500, unless the
statute itself indicates a legislative purpose to impose absolute liability.
612

Interim Decision #2481
At the time of the respondent's conviction, simple assault was an absolute liability
crime, because the possible punishment did not include imprisonment and any fine could
not exceed $500. However, the possible punishment for aggravated assault in 1971
included a $1,000 fine, and imprisonment up to five years. Furthermore, the aggravated
assault statute does not indicate a legislative purpose to impose absolute liability. See
Daley v. Thaxton, 92 11i. App. 2d 277, 236 N.E. 2d 488 (1968). Illinois thus required the
presence of a criminal mental element for conviction of aggravated assault under section
12-2(aX1).
Section 4-3 of Chapter 38 is the general statute governing the mental state requirement for Illinois criminal statutes which prescribe no particular mental state. Section
4-3 provides in part:
§ 4-3. Mental State
(a)A person is not guilty of an offense, other than an offense which involves absolute
liability, unless, with respect to each element described by the statute defining the
offense, he acts while having one of the mental states described in Sections 4-4 through
4-7.
(b) . . If the statute does not prescribe a particular mental state applicable to an
element of an offense (other than an offense which involves absolute liability), any
mental state defined in Sections 4-4, 4-5 or 4-6 is applicable. (Emphasis added.)
The Illinois aggravated assault statute does not prescribe a particular
mental state applicable to an element of that offense. Accordingly, any
mental state defined in section 4-4 (Intent), section 4-5 (Knowledge), or
section 4-6 (Recklessness) is applicable. The record of conviction relating to the respondent's 1971 aggravated assault conviction does not
specify any one of these three mental elements. It is therefore possible
that the respondent could have been convicted had he acted recklessly
within the meaning of section 4-6.
Intent or knowledge can serve as the basis for a finding of moral
turpitude in criminal conduct. However, in dealing with statutes from
jurisdictions other than Illinois, we have indicated that moral turpitude
for immigration purposes does not necessarily inhere in criminally reckless conduct. Matter of Szegedi, 10 L & N. Dec. 28 (BIA 1962); see
Matter of Gantus Bobadilla, 13 L & N. Dee. 777 at 778 (BIA 1971). We
have reconsidered the general position taken in these cases, and we
have concluded that moral turpitude can lie in criminally reckless conduct.
-

Illinois defines the term recklessness in Chapter 28, section 4 6,
-

which provides:
4-6. Recklessness
A person is reckless or acts recklessly, when he consciously disregards a substantial
and unjustifiable risk that circumstances exist or that a result will follow, described by
the statute defining the offense; and such disregard constitutes a gross deviation from
the standard of care which a reasonable person would exercise in the situation. An act
performed recklessly Is performed wantonly, within the meaning of a statute using the
latter term, unless the statute clearly requires another meaning.

The person acting recklessly must consciously disregard a substantial
613

Interim Decision #2481
and unjustOable risk, and such disregard must constitute a gross deviation from the standard of care which a reasonable person would exercise
in the situation. This definition of recklessness requires an actual
awareness of the risk created by the criminal violator's action. While the
Illinois recklessness statute may not require a specific intent to cause a
particular harm, the violator must show a willingness to commit the act
in disregard of the perceived risk. The presence or absence of a corrupt
or vicious mind is not controlling_ Guerrero de Nodahl v. INS, 407 F.2d
1405 (C.A. 9, 1969). We hold that the criminally reckless conduct defined

by section 4-3 be the basis for a finding of moral turpitude.
We have indicated that assault with a deadly weapon is generally
deemed to be a crime involving moral turpitude. Under Illinois law, the
respondent had to have committed his aggravated assault with one of
the three specified mental elements. Each of these mental states will
support a finding of moral turpitude. Thus, a conviction for aggravated
assault under section 12-2(a)(1) inherently involves moral turpitude.
The respondent's 1971 aggravated assault conviction is a conviction for a
crime involving moral turpitude.
Counsel argues that Illinois would not consider aggravated assault to
involve "moral turpitude," because this crime is not considered an
"infamous crime" under certain Illinois statutes relating to divorce and
the impeachment of witnesses at trials. The concept of an "infamous
crime" is not necessarily totally synonymous with the concept of a crime
involving moral turpitude. However, of more importance is the simple
fact that a particular state's determination as to what crimes it deems
morally turpitudinous is not conclusive for federal immigration purposes.
See Gonzales v. Barber, 207 F.2d 398 at 400 (C.A. 9, 1953), aff'd, 374
U.S. 637 (1954).
Counsel also seeks to have us look into the facts surrounding the
respondent's conviction. In this regard, counsel claims that the respondent was not represented- at the time of the 1971 Illinois conviction. We,
however, may not go behind the record of conviction. Matter of Gutierrez, 14 I. & N. Dee. 457 (BIA 1973); see also Rassano v. INS, 377 F.2d
971, 974 (C.A. 7, 1966), vacated and remanded on other grounds, 377
F.2d 975.

Counsel finally challenges the respondent's deportability under section 241(a)(4), arguing that the respondent has not been convicted of two
crimes involving moral turpitude after entry. The respondent has been
convicted only once since he last entered the United States in 1962.
Counsel argues that it is this last entry which governs, and therefore
that the respondent's 1953 attempted burglary conviction in Texas
cannot now be used in any respect as a basis for a finding of deportabil-

ity.
We have rejected this contention in the past. As a general rule, the
614

Interim Decision #2481
Service may base a section 241(a)(4) charge on any entry made by an
alien. The alien's last entry is not controlling for this purpose. See
Matter of M—S—, 9 I. & N. Dec. 643 (BIA 1962); Matter of A—, 6 I. & N.
Dee. 684 (BIA 1955). See also Matter of S—, 7 I. & N. Dec. 536 (BIA
1957). The respondent was not admissible to the United States in 1962,
the year of his last entry, because of the existence of his attempted
burglary conviction. See section 212(a)(9), Immigration and Nationality
Act. It would be anomalous if that illegal entry now precluded consideration of the attempted burglary conviction. The respondent is not
in the position of an alien who was clearly admissible at the time of his
last entry and who entered with a valid immigrant visa. Bonetti v.
Rogers, 356 U.S. 691 (1958), which dealt with a different statute and
involved a peculiar fact setting relating to a past member of the Communist Party, is not applicable.
The respondent's deportability under section 241(a)(4) has been established by clear, convincing and unequivocal evidence. The respondent
assumed the status constituting a ground for deportation on the date of
his second conviction in Inn Ten years have not elapsed since that
date. The respondent is not eligible for suspension of deportation under
section 244(e).
The decision of the immigration judge was correct.
ORDER: The appeal is dismissed.

615


Interim Decision #1908

MATTER

or BECHRRA

In Deportation Proceedings
' A-14608640
A-14618914
Decided by Board September SO, 1988

(1) An alien who entered the United States ostensibly to attend school while
supported•by his father but who assumed joint responsibility with his father for support of his family and obtained employment shortly after
entry, is deportable as one who was excludable for lack of a Labor certification as required by section 212(a) (14) of the Immigration and Nationality Act, as amended, notwithstanding he was a minor (14 years of age) at
entry.*
(2) Notwithstanding the birth of a United States citizen child after entry,
an alien who fraudulently entered as the spouse of a 'U.S. citizen to evade
the Labor certification requirement is ineligible for the benefits of section
241(f) of the Act, since he was not otherwise admissible at entry because
excludable under section 212(a) (14) of the Act."
CHARGES:

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable—visa procured by fraud or willfully misrepresenting material fact under section 212(a) (19)
[adult respondent].
Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (1)]—Immigrant
not in possession of valid visa under section
212(a) (20) [adult respondent].
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)]—Immigrant
seeking to enter the United States to perform labor
without Secretary of Labor certification, to wit,
section 212(a) (14) [both respondents].
ON BEHALF

or RESPONDENTS: David C. Marcus, Esquire
215 West 5th Street
Los Angeles, California 90018

The cases come up on appeal from a decision of the special inquiry officer finding both respondents deportable. The record re" Remanded for further consideration, 4181'.2d 108.
" Overruled, see 418 F.2d 108 (C.A. 9, 1989).

19

Interim Decision #1908
lates to father and son, natives and citizens of Mexico. The adult
respondent obtained a special immigrant visa on December 27,
1965 on the basis of a marriage entered into with one Felicitas
Rios-Galaviz, a citizen of the United States. By the presentation
of a marriage certificate and a divorce certificate purporting to
show termination of a previous marriage the respondent was able
to circumvent the requirements of section 212 (a) (14), thereby
gaining entry on December 27, 1965 into the United States for
permanent residence. The minor male child procured entry into
the United States on February 15, 1966 on the basis that his father was an alleged lawful permanent resident. At the time the
boy was 141/a years of age and it was asserted that he would be
in attendance at a school in Oxnard, California; however, soon
after his entry he procured employment.
It was subsequently discovered that the adult respondent was
previously married to Paula Monje, a native and citizen of Mexico, and of that marriage were born seven children all of whom
resided in Mexico. The respondent then admitted in a prehearing
statement that he had paid $200 for the purpose of obtaining a
fraudulent divorce decree showing that his first marriage had
been terminated and a fraudulent marriage certificate purporting
to show marriage between the respondent and a United States
citizen with whom he had never lived in any kind of marital status. In that prehearing statement the respondent admitted that
these documents were false and were obtained for the sole purpose of procuring entry into the United States as an immigrant.
Subsequent to entry, an application was made for the wife to
enter the United States with the other children. The basis of her
entry was that she was the spouse of a lawful resident alien and
subsequent to her entry a United States citizen child was born to
her on December 10, 1967.
The special inquiry officer found that. the visa obtained by the
father was procured by fraud having been based on a fraudulent
marriage. As to the son the special inquiry officer concluded that
he also was not entitled to the status of a permanent resident

since he was required to obtain a labor certification under section
212(a) (14) in that his primary purpose for entering the United
States was not to go to school but to work.
Counsel for the respondents on appeal argues that the evidence
required to establish deportability as to the male adult respondent
is not clear, convincing and unequivocal and that under section
241 (b) the respondent was eligible for relief. We assume that the
20

Interim Decision #1908
statute cited by the counsel is 241 (f) as opposed to 241(b). 3 As
to the minor child the counsel for the respondents asserts that the
evidence does not establish deportability by clear, convincing and
unequivocal proof. He further argues that there was error in
holding that the respondent, a minor, required certification by the
Department of Labor under section 212(a) (14) of the Immigration Act.
After a careful review of the evidence and the testimony we
are compelled to uphold the finding by the special inquiry officer
as to both respondents. Exhibit 2 relates to a visa issued to one
Pedro Pozos Becerra on December 27, 1965 and the visa application is attached thereto. In that visa petition the adult respondent
lists the name and address of his wife as Felicitas Rios Galaviz

residing in Los Angeles, California. He also states on that application he has three children, Victor, Agripina and Faustino residing in Mexicali, Baja California. Attached to the application and
the visa is a marriage certificate relating to one Pedro Pozos Becerra and Felicitas Rios Galaviz showing that on December 21,
1964 the named persons were united in matrimony. There is also
a divorce decree No. 673/69 relating to an absolute divorce between Pedro Becerra Pozos and Paula Monge-Flores which divorce appears to have been rendered August 19, 1964. These documents were the basis for which the visa was issued to the male
respondent. Exhibit 7 relates to a sworn statement made by the
adult male respondent alleging that he had procured a- marriage
certificate purporting the showing of marriage to one Felicitas
Rios Galaviz and a divorce decree purporting to show a divorce
between him and his first wife, Paula Monje. He admitted in the
sworn statement that he used this marriage certificate to immigrate so that he would not have to obtain Form 320 which we assume is the certification required under section 212 (a) (14). Exhibit 8 is an affidavit of support signed by both respondents
executed on behalf of Paula Monje de Becerra and their four children. Paragraph two recites that the person named in the affidavit is mother and wife to the affiants. Exhibit 10 relates to an immigrant visa issued to one Paula Monje de Becerra on March 17,
1967 and the application for the visa executed by her. Question
10 on the visa application answered by Paula Monje Becerra
states that she was married only once and that her purpose in entering was to live and reunite herself with her husband. By husband she referred on Question 18 to her husband, Pedro Pozos
2

Section. 241(b) relates to something completely inapplicable to the

case.

21

instant

Interim Decision #1908
Becerra. To the wife's application was attached a marriage certificate showing that the Paula Monje was married to Pedro Becerra on July 17, 1950 in Tecolotoan, Jal., Mexico. There was no
divorce decree presented in connection with that visa application
nor a subsequent marriage certificate. Therefore, it appears clear
that the wife of the respondent was relying on the first marriage
as a means to enter as an immigrant. Had the divorce and second
marriage been regarded valid by the adult respondent, there
would have ensued a third marriage. The admissions of the respondent together with this independent evidence clearly demonstrates that the deportation charge relating to the adult male respondent is supported by clear, convincing and unequivocal
evidence.

As to the minor male respondent, the record of hearing reveals
that since entry he has not attended school during the day. At the
hearing, the minor male respondent testified that he is in attendance at school two nights a week for three hours a night. He further stated that his earnings were used to furnish the house in
which his mother and the other children came to live. From the
facts of the case it appeared that the minor male respondent's
primary purpose in entering the United States was to enter the
labor market and under such circumstances a labor clearance was
required. Notwithstanding that the minor male respondent was
of tender years his primary objective for entering the United
States was not to be with his father and to be supported by him,
rather to assume joint responsibility with his father for the support of his family. Under the circumstances he would be found
excludable as one who failed to obtain a certification demanded by
the Department of Labor pursuant to section 212 (a) (14). We
find nothing that would disturb the conclusion reached by the

special inquiry officer.
The record shows that there is a United States citizen child
that was born to the adult male respondent and his wife. However the existence of a United States citizen child cannot cure the
fraud since the respondent has been found not to be otherwise admissible at the time of entry. The purpose for which the respondent entered the United States was to avoid the certification
requirement of the law; therefore, at the time of entry he would
have not been otherwise admissible.
ORDER; It is ordered that the appeal be and the same is
hereby dismissed.

22


Interim Decision #2311

MATTER OF MOSS

In Exclusion Proceedings
A-19265092

Decided by Board August 16, 1974
Request, on appeal in exclusion proceedings, for remand of case to the immigration judge
for further proceedings to give applicant an opportunity to further develop the evidence of his `active opposition" to Communism for the purpose of defector classification
under section 212(a)(28)(1)(ii) of the Immigration and Nationality Act, as amended, is
granted where applicant made a full and voluntary disclosure to the American consul of
his voluntary membership in the Communist Party of Great Britain from 1948 to 1952;
he testified candidly and extensively at the exclusion hearing as to such membership;
and he was not represented at the hearing by counsel, mistakenly thinking he could
handle his hearing by himself.

Act of 1952—Section 212(a)(28) [8 U.S.C. 1182(a)(28)]—Prior membership in Communist Party of Great Britain.
ON BEHALF OF APPLICANT: Francis Hoague, Esquire
1500 Hoge Building
Seattle, Washington 98104

EXCLUDABLE:

In a decision dated May 6, 1974, the immigration judge found the
applicant inadmissible under section 212(a)(28) of the Immigration and
Nationality Act because of his membership in the Communist Party of

Great Britain, denied his application for a waiver of inadmissibility
under section 212(a)(28)(I)(ii), and ordered his exclusion and deportation
from the United States. The applicant has appealed from that decision.

The record will be recommended to the immigration judge.
The applicant, a 58-year-old alien who is a native of England and a
critizen of Canada, seeks to enter the United States so that he may
reside in a retirement home that he and his wife are building at Point
Roberts, Washington. He applied for an immigrant visa at the American Consulate in Vancouver, British Columbia. After voluntarily informing the Consul of his former membership in the Communist Party,
the applicant was refused a visa because of that membership. He then
applied at the border for admission to the United States and was
referred for an exclusion hearing.
At the hearing, the applicant stated that he joined the Communist
58

Interim Decision #2311
reason for joining was that he
desired social reform in certain areas such as education, aid to the
elderly, health care, and insurance. He stated that the Communist
Party was more interested in reforms in these areas than were the other
political parties in England, and that the Communist Party "offered
what appeared to be ready made answers" (Tr. p. 16).
He testified that he joined the Party at the urging of one of his
neighbors. The "cell" to which he belonged had six members; the membership remained constant during the four years he belonged.
The applicant stated that he became disillusioned with the Communist Party because it focused most of its attention on the Soviet
Union's international aims, with which he disagreed, and it did not
devote sufficient attention to reform in England. The applicant's opposition to the international aims of communism caused him to break with
the Party in 1952. He thereupon moved from thd Liverpool area to
North Wales in order to get away from the Party. The move involved
terminating his business, selling his home, and moving his family to an
area where it "was harder to scrape up a business" (Tr. p. 27). He
immigrated to Canada in 1968.
The applicant was not represented by counsel at the hearing. The
immigration judge informed him of the terms of section 212(a)(28)(I)(ii)
of the Act. This section provides for a waiver of inadmissibility for an
alien who has defected from the Communist Party and who since that
defection "is and has been, for at least five years prior to the date of
application for admission actively opposed to the doctrine, program,
'principles, and ideology of such party or organization," and whose
admission into the United States would be in the public interest.
The applicant testified that he has had nothing to do with communism
since he quit the Party in 1952, and that he has actively opposed
communism in statements made to friends since that time. The applicant submitted letters from four individuals attesting to his strong
anti-communist point of view (Exhs. 6, 7, 8, 9). He also produced one of
these individuals who testified as to several specific examples of the
applicant's anti-communist position. In one instance the applicant had
expressed opposition to Soviet intervention in Czechoslovakia, and in
another instance he had expressed the opinion that communists from
Chile were "troublemakers" who would' not be assets to Canada. In
addition, the applicant submitted to the immigration judge ten letters
attesting to his good moral character.
The immigration judge found that the applicant did not appear to
have been involved with communism since 1952, but that he also did not
appear to have actively opposed communism, and that he had not
established that his admission into the United States would be in the
public interest. He concluded, therefore, that the applicant was excludParty in Liverpool, England in 1948. His

59

Interim Decision #2911
able and that he could not qualify for a waiver under section
212(a)(28)(I)(ii).
On appeal, counsel has moved that we remand the record for the
taking of further evidence concerning the applicant's active opposition
to communism. In an affidavit, the applicant stated that he made a
mistake in thinking that he could handle his exclusion hearing by himself. He stated that he did not understand the type of proof which he
should have submitted to establish his claim that he has actively opposed communism.
Counsel has submitted letters from two individuals who will testify as

to specific anti-communist statements made by the applicant on various
public and private occasions. In addition, the applicant has stated that
he wishes to have an opportunity to testify further as to his specific
anti-communist acts and to the large financial loss which he voluntarily
underwent in order to get away from the Party by moving from Liverpool to North Wales.
In Matter of Galtieri, 12 I. & N. Dec. 778 (BIA 1968), we stated that
the fact that an ex-communist alien was not politically active, and did
not write books or make public statements opposing communism did not
preclude his classification as a defector under section 212(a)(28)(I)(ii) of
the Act. In Galtieri we held that, among other things, factors such as

full disclosure to the American counsul, anti-communist statements
made privately to friends, and the alien's testimony at the hearing as to
his anti-communism could be considered as evidence of active opposition
to communism:
The applicant made a full and voluntary disclosure of his Communist
Party membership to the American consul. He testified candidly and
extensively as to this membership at his exclusion hearing. The applicant's candor and voluntary divulgence of his Party membership gives
considerable weight to his testimony that he has subsequently actively

opposed communism.
It appears that the applicant's membership, although voluntary, was
predicated on his desire to improve living conditions in Great Britain.
He evidently never favored the international aims of communism, and
he broke with the Party because of his disapproval of these goals.
The applicant seems to have voluntarily -undergone considerable
financial hards:uip to get away from the Party. He has apparently been

consistent in his opposition to communism in statements made to friends
over the years since he left the Party. The record indicates that the
applicant is a person of good moral character, and that his admission to
the United States would be in the public interest.
We believe that the applicant should be %given an opportunity to
further develop the evidence of his active opposition to communism. If
the truth of the information set forth -in the motion to remand and
60

Interim Decision #23I1
supporting documents can be established, the evidence would apparently fall within the scope of Matter of Galtieri, supra, and the applicant's classification as a defector under section 212(a)(28)(I)(ii) would be
possible.
The applicant's motion to remand will be granted, and the record will
be returned to the immigration judge for further proceedings.
ORDER: The motion is granted, and the record is remanded to the
immigration judge for further proceedings in accordance with this opinion.

:.;

61


Interim Decision *1665

MATTER OF MennioA
In Visa Petition Proceedings
A-11276815
Decided by Board November 18, 1966
Acknowledgment alone of benenclary, born out of wedlock in the Philippines,
by petitioner, her alleged natural father, does not constitute legitimation
since, under the law of the Philippines, legitimation is accomplished by the
marriage of the natural parents and the acknowledgment by them of such
child either before or after the marriage.

The case comes forward on appeal from the order of the District
Director, San Francisco District, dated September 19, 1966 denying
the visa petition for the reason that no evidence has been presented
that the beneficiary has been legitimated in accordance with the laws
of the Philippine Islands or the State of California; it is concluded
that the beneficiary is not a child as defined in section 101(b) (1) of
the Immigration and Nationality Act, as amended.
The petitioner, a native of the 'Philippines, a citizen of the United
States by naturalization on August 8, 1917, male, 58 years bid, seeks
preference quota status on behalf of his married illegitimate daughter, a native and citizen of the Philippines, 39 years old. The beneficiary was married at Mambusao, Capiz on December 25, 1941 to
Manuel Maungca. The petitioner himself was married oh August22,
1946 at Reno, Nevada. However, in view of the fact that the beneficiary is described as his illegitimate daughter, it- may be safely
assumed that he married someone other than the natural mother of
the beneficiary.
Evidence has been presented that the birth records and - baptismal
records in Itambisao, Capii, Philippines, were lost, destroyed or
burned during the Japanese occupation. In connection with his
appeal the petitioner claimed that he acknowledged that- the beneficiary was his child since the time of her birth and -that'he supported
885

.

Interim Decision #1665
her until she was married. There have been submitted the joint affidavits of Carlos V. Andaya, Vicente De La Cana and Andres Latosa,
all of Mambusao, Cr,piz, Philippines executed May 10, 1966 to the
effect that the beneficiary was born of Juliana Ledonio, is the natural child of the petitioner who acknowledged her to be his natural
child even at and after her birth and on his return to his native town
sometime in March 1966; that they know all these facts because they
were present at the baptism of the child and were witnesses to the
records of her birth and to her acknowledgement as the natural child
of the petitioner, the petitioner has disclosed the same, and it is a
well-known fact in the community.
For the purpose of this proceeding it will be assumed that the beneficiary is the illegitimate natural acknowledged child of the petitioner. However, .Article 270 of the Civil Code of the Philippines
(1949) provides that legitimation shall take place by the subsequent
marriage between the parents (Article 120 of the old Civil -Code).
Article 269 provides that children born out of wedlock of parents,
who at the time of the conception of the child, were not disqualified
by any impediment to marry each other, are natural. Article 271
provides that only natural children who have been recognized by the
parents before or after the celebration of the marriage or have been
declared natural children by final judgment may be considered legiti3nated. by a subsequent marriage (Article 121a of the old Civil
Code). It has been held that in ardor that a natural child may be
ligitimated by the subsequent marriage of the parents, such child
must have been acknowledged by them either before or after the marriage. Madredejo v. De Leon, 55 Phil. 1.
It, therefore, appears from the provisions of the Philippine Civil
Code that acknowledgement alone is not enough to constitute legiti-.
mation which is accomplished by the subsequent marriage of the
parents of natural children who have been recognized. Accordingly,
legitimation according to Philippine law has not been established.
The record does not contain enough facts to determine whether
there has been a legitimation pursuant to section 230 of the Civil
Code of California, where the petitioner now resides. It is noted
that the beneficiary was married at the age of 14 years. The petitioner has not raised the question of legitimation under section 230 of
the California Civil Code, but has argued that his acknowledgement
of the beneficiary entitled her to be his heir. While the latter argument may be true, acknowledgement alone under the Civil Code of

Interim Decision #I885
the Philippines does not constitute legitimation. In the event that
the petitioner secures a judgment of legitimation pursuant to section
280 of the California Civil Code by a competent court, the matter
may be reopened.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

887


Interim Decision #2797

MATTER OF ITARUGFIESE
In Deportation Proceedings

A-21582322
Decided by Board June 6, 1980
(1) In determining whether or not one has been ordained as a minister and has carried
on the vocation of a minister of a recognized religious denomination, acceptable
evidence includes a letter or other appropriate statement signed by the Superior or
Principal of the religious denomination.
(2) The respondent, a full-time student seeking an adjustment of status, has not established that he qualities tot "special iumligraur status as a min
' ister under section
101(a)(27)(C) of the Immigration and. Nationality Act, 8 U.S.C. 1101(a)(27)(C), when
his work at the church has been of a voluntary nature delegated to him by the
minister.
(3) Although the respondent preaches every other Sunday and sometimes takes the
offering when the deacons do not come to the Service, he has not carried on the
vocation of minister of the church as defined by section 101(a)(21)(C) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(C), when only 9 hours per week are
devoted to church activities, and he is not compensated.
CHARGE:
Orden Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)j—Nonimmigrant—remained
longer than, permitted

ON BEHALF OF RESPONDENT:

Pro se

BY: Milhollan, Chairman; Maniatis, Appleraan, Maguire, and Farb, Board Members.

In a decision dated July 25, 1978, the immigration judge found the
respondent deportable as charged, denied his application for adjustment of status under section 245 of the Immigration and Nationality
Act, 8 U.S.C. 1255, and granted him the privilege of voluntary departure in lieu of deportation. The respondent has appealed from that
decision. The appeal will be dismissed.
The respondent is a 38-year-old male native and citizen of India who
was allegedly ordained as a minister in India in 1968. He entered the
United States at New York on August 5, 1973, as a non-immigrant
student authorized to remain until June 20, 1977. On June 24, 1977, the
Church of God Chapel sought to confer preference status upon the
399

Interim Decision #2797
respondent as a minister.
In a Service interview on September 1, 1977, the respondent averred
that he did not do any work for the Church of God but only attended
worship services. When the petition was approved, however, he would
be the mission director, sending the gospel to other countries and
keeping records.
The District Director predicated his, denial of the petition on the fact
that the respondent had not been employed since his entry on August

5, 1973, and, therefore, had not been primarily engaged in a religious
occupation for 2 years prior to seeking adjustment based upon a labor
certification, as required by 20 C.F.R. 656.22(e).
On appeal to the Regional Commissioner, the decision of the District
Director was affirmed on May 3, 1978. The Regional Commissioner
found that the respondent/beneficiary had not been primarily engaged
as a minister for, the previous 2 years.
On July 11, 1978, an Order to Show Cause was issued charging the
respondent with deportability under section 241(a)(2) of the Act, 8
U.S.C. 1251(a)(2), as an alien who had remained longer than permitted.
A deportation hearing was held on July 25, 1978. The respondent
denied that his student visa had expired on. June 20, 1977, and that he
had remained beyond that date without authorization. He testified
that he started working for the Church of God Chapel in June 1976,
without compensation. His job entailed spending every other Sunday
preaching and leading prayer meetings on Wednesdays. He spent
approximately 9 hours per week at the church. In addition, he maintained 12 semester hours of classroom work at Southwestern College.
Upon adjustment of his status to that of a minister, the Church agreed
to pay him $25 per week for his work as a mission director.
The immigration judge treated his denied visa petition as an application for adjustment of status under section 245 of the Act. He found
the respondent deportable as charged in that the respondent's ArrivalDeparture Card, Form 1 94, clearly indicated that the respondent was
authorized to remain in the United States until June 20, 1977. The
immigration judge found that the respondent did not qualify for
-

adjustment of status as a minister under section 101(a)(27)(C) of the

Act, 8 U.S.C. Ll01(a)(27)(C), inasmuch as he had not been principally
engaged in religious work. He further found the respondent ineligible
for relief under section 245 of the Act based upon section 245(c) of the
Act. Because the respondent had worked without permission of the
Service, he was precluded from adjusting his status pursuant to section 245 of the Act. The respondent was granted 5 months voluntary
departure to complete the fall semester at the university.
On appeal, the respondent contends that 1) his petition should have
been approved, 2) he was unable to extend his stay in the United States
400

Interim Decision #2797
because the Service had his 1-94, and 3) the law is contradictory in that
a nonimmigrant student cannot work without permission of the Service. Therefore, he could never obtain the requisite 2 years experience.
Pursuant to 8 C.F.R. 3.1(b)(5), this Board is without jurisdiction to
review the denial of a preference petition based upon a profession or
occupation under section 203(a)(3) or 203(a)(6) of the Act, 8 U.S.C.
1153(a)(3) or 1153(a)(6). The respondent may sue for review in the
United States District Court.
In order to establish an alien's deportability as an "overstay," the
Service need only show that the alien was admitted as a nonimmigrant
"... for a temporary period, that the period has elapsed, and that the
nonimmigrant has not departed." Milande v. I.Na 484 F.2d 774, 776 (7

Cir. 1973); Matter of Teberen, 15 I&N Dec. 689 (BIA 1976). It is clear to
this Board that the Service has established that the respondent is an
overstay and is therefore deportable.
The immigration judge erroneously considered the respondent's
eligibility for adjustment of status as if an adjustment application had
been filed. Nevertheless, in order to avoid leaving the respondent in
doubt, through no fault of his own, we shall address the issue of
adjustment of status.
In order to he eligible for adjustment of status, the respondent must
establish that he is eligible to receive an immigrant visa, that he is
admissible to the United States for permanent residence, and that an
immigrant visa is immediately available to hint at the time his application for adjustment is filed. An alien seeking an adjustment of status
to that of a permanent resident is assimilated to the position of an
alien seeking entry to the United States for permanent residence.
Campos v. INS, 402 11.2d 758 (9 Cir_ 1968), cert.. denied, 429 U.S. 999
(1976), citing Amarante v. Rosenberg, 326 F.2d 58 (9 Cir. 1964); Ambra

v. Ahrens, 325 F.2d 468 (5 Cir. 1963).

The respondent has based his application for adjustment of status
on the contention that he is a "minister" of a religious denomination
and thus classifiable as a special immigrant pursuant to section
101(a)(27)(C)(i) of the Act. Section 101(a)(27)(C)(i) defines, in pertinent
part, a special immigrant as:
an immigrant who continuously for at least two years immediately preceding the time
of his application for admission to the United States has been, and who seeks to enter
the United States solely for the purpose of carrying on the vocation of minister of a
religious denomination, and whose services are needed by such religious denomination
having a bona fide organization in the United States.

The Act does not provide a definition of the term minister. State
Department regulation 22 C.F.R. 42.25, however, contains the following elaboration:
(b) The term "minister", as used in section 101 (a)(2t)(C) of the Act, means a person

401

Interim Decision #2797
duly authorized by a recognized religious denomination having a bona fide organization in the United States to conduct religious worship, and to perform other duties
usually performed by a regularly ordained pastor or clergyman of such denomination.
The term shall not include a lay preacher not authorized to perform the duties usually
performed by a regularly ordained pastor or clergyman of the denomination of -which
he is a member, and shall not include a nun, lay brother, or cantor.

In Matter of Rhee, 16 I&N Dec. 607 (BIA 1978), we reaffirmed our
authority to consider an alien's qualifications for special immigrant
status as a minister of religion under section 101(a)(27)(C) of the Act.
Compare Matter of Wiesinger, 16 I&N Dec. 480 (BIA 1978).
We agree with the conclusion of the immigration judge insofar as he
found that the respondent does not meet the requirements of section
101(a)(27)(C) of the Act. Since his arrival in the United States, until he
sought to adjust his status, the respondent was a full time student.'
Further, it is unclear as to whether or not the respondent was ever
ordained as a minister in India and carried on the vocation of a
minister of a recognized religious denomination in that country. Acceptable evidence that an individual meets the qualifications of a
minister, when applying for admission to this country, includes a letter
or other appropriate statement signed by the Superior or Principal of
the religious denomination in the United States. The respondent has
-

merely alleged that he was ordained as a minister in India.

His religious duties, if any, with the Church of God in Oklahoma
City have been of a voluntary nature delegated to him by the minister
of the chnrch. He testified that sometimes he preaches every other
Sunday when the minister doesn't preach, and sometimes he takes the
offering when the deacons do not come to the service. He has been
performing such services without compensation since 1976. The respondent has not carried on the vocation of minister with the Church
of God.' Matter of Rhee, supra; Matter of isulca,10 I&N Dec. 712 (R.C.
1963).
We agree with the immigration fudge that the respondent, while

earryitig a full-time school schedule, cannot claim 9 hours per week in

church activities as continuously carrying on the vocation of minister
so as to satisfy the requirements of the Aet. Moreover, while failure to
offer proof of his ordination might be corrected if all else were satisfactory, it is immaterial here.
We do not reach the propriety of the immigration judge's finding
8 C.F.R. 214.2(f)(1a) provides that a full course of study at a college consists of at least
12 hours of instruction a week.
Although the church allegedly provided him with a "preaching license," he has not
been ordained by the church (Tr. p. 11). Accordingly, we question whether a preaching
license provided by the Church of God is tantamount to authorization by a religious
denomination, as provided in 22 C.F.R. 42.25(b).

402

Interim Decision #2797
that the respondent is ineligible to adjust his status in that he was
employed without permission of the Service.
The appeal will be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is permitted to depart from
the United States within 30 days from the date of this order or any
extension beyond that time as may be granted by the District Director;
and in the event of failure so to depart, the respondent shall be
deported as provided in the immigration judge's order.


Interim Decision #2086

MATTER OF MOORE
In Exclusion Proceedings
A-17797587
Decided by Board July 12, 1971, as amended December 9, 1971
(1) Pursuant to section 291 of the Immigration and Nationality Act, the
burden of proof is upon a commuter applicant for admission to establish
that he is not subject to exclusion. Since an alien commuter is not returning to an actual unrelinquished permanent residence in the United States,
he is not entitled to a hearing at which the Service bears the burden of
proof under the rule of Kwong Hai Chew v. Rogers, 257 F.2d 606 (D.C.
Cir., 1958).
(2) Since a permanent resident alien commuter makes a meaningful departure when he leaves the United States, he does not come within the ambit
of Rosenberg v. Fleuti, 374 U.S. 449 (1963), and is subject to possible exclusion upon his return to this country.
(3) The standard of clear, convincing and unequivocal evidence set forth in
Woodby v. Immigration and Naturalization Service, 385 U.S. 276 (1966),
is not applicable to exclusion proceedings.
EXCLUDABLE: Act of 1952—Section 212(a) (9) [8 U.S.C. 1182(a) (9)1—Conviction of crime involving moral turpitude
prior to entry.
ON BEHALF OF APPLICANT:

Pro se

The applicant, male native and citizen of Canada, married, 33
years of age, applied on February 8, 1971 for admission as a returning resident alien (commuter). He was detained for an exclusion hearing before a special inquiry officer, who found the applicant excludable. The decision was certified to this Board. It will
be affirmed.
The applicant had been admitted to the United States on December 14, 1967 as an immigrant. He immediately assumed the
status of a commuter.
The record indicates that on December 3, 1970 the applicant
was convicted in Detroit, Michigan, after a plea of guilty, of the
crime of attempted breaking and entering with intent to commit
larceny. The applicant was placed on probation for two years.

711

Interim Decision #2086
Section 212 (a) (9) of the Immigration and Nationality Act requires that aliens who have been convicted of a crime involving
moral turpitude shall be excluded from admission into the United
States.
The crime of attempted breaking and entering with intent to
commit larceny, by definition involves larceny. Larceny is a crime
involving moral turpitude, Quilodran-Brau v. Holland, 232 F.2d
183 (3 Cir., 1962). Since moral turpitude inheres in the intent,
U.S. ex rel. Meyer v. Day, 54 F.2d 336 (2 Cir., 1931); Matter of
R—, 4 I. & N. Dec. 644, 647 (CO, 1952, BIA, 1952), the crime of
breaking and entering with intent to commit larceny involves
moral turpitude. An attempt to commit the same offense would
likewise involve moral turpitude, since there is no distinction for
immigration purposes in respect to moral turpitude between the
commission of the substantive crime and the attempt to commit
it, U.S. ex rel. Meyer v. Day, supra, p. 337.
We find, then, that applicant was guilty of a crime involving
moral turpitude, Matter of P—, 4 I. & N. Dec. 252 (BIA, 1951).
That case concerned a violation of section 28.592 of the Michigan
Penal Code (larceny from dwelling house, store, factory, ship or
other building) which is similar to the violation to which applicant pleaded guilty. Therefore, we agree with the special inquiry
officer that the applicant comes within the ambit of section
212 (a) (9) of the Immigration and Nationality Act and, therefore, is excludable.
The special inquiry officer correctly held that the doctrine contained in Rosenberg v. Fleuti, 374 U.S. 449, (1963), does not
apply to the facts in the present case. The Fleuti doctrine is that
an innocent, casual, and brief excursion by a resident alien outside this country's borders may not have been "intended" as a departure disruptive of his resident alien status and, therefore, may
not subject him to the consequences of an "entry" into the country on his return. The Fleuti case was concerned with interpreting section 101 (a) (13) of the Immigration and Nationality
Act, which is expressly aimed at resident aliens.
The applicant, however, is not a true resident alien, but belongs
instead to the class of aliens known as "commuters," a category
created administratively for the convenience of aliens living in
Canada and Mexico who have jobs in the United States. Under
existing practice a commuter is a person nominally possessing the
status of an alien lawfully admitted for permanent residence;
who has employment of a permanent nature in the United States;
712

Interim Decision #2086
and who possesses the right to take up physical residence in the
United States although he does not elect to do so, but usually returns to his actual home in Canada or Mexico every night. Because he has no true permanent residence in the United States, a
commuter does not enjoy all the benefits of an alien lawfully admitted for permanent residence.
We have previously held that a commuter makes a meaningful
departure every time he leaves the United States, thereby subjecting himself to possible exclusion upon his return to the
United States, Matter of Estrada-Tena, 12 I. & N. Dec. 429 (BIA,
1967). That case specifically noted that the Fleuti doctrine would
be inapplicable to such a situation. Moreover, a commuter's departure from the United States is not the casual stepping across
the border found in Fleuti, but is a return to his actual residence.
We do, however, disagree with the special inquiry officer's application of the standard of clear, convincing and unequivocal evidence to determine excludability. That standard, formulated in
Woodby v. INS, 385 U.S. 276 (1966), applies only to deportation proceedings.
Section 291 of the Immigation and Nationality Act provides
that whenever any person makes application for admission, the
burden of proof shall be upon such person to establish that he is
not subject to exclusion under any provisions of the Immigration
and Nationality Act. Section 235 (b) of the Act provides that
every alien who may not appear to the examining immigration
official to be clearly and beyond a doubt entitled to land shall be
detained for further inquiry to be conducted by a special inquiry
officer; and this was done in the instant case. This applicant is a
commuter, and not an alien actually residing in the United States.
Unlike the status of an alien who is returning to an actual unrelinquished permanent residence in the United States, a commuter's status is not assimilated to that of a resident alien who has not
left the United States under the rule laid down in Kwong Hai
Chew v. Golding, 344 U.S. 590 (1953). Were he an alien returning to an actual unrelinquished permanent residence in the
United States, this applicant would be entitled to a hearing at
which the Service bears the burden of proof, Kwong Hai Chew v.
Rogers, 257 F.2d 606 (D.C. Cir., 1958) . Compare Matter of Becerra-Miranda, 12 I. & N. Dec. 358 (BIA, 1967). He is not. The
burden of proving that he is not subject to exclusion under any
provision of the Immigration and Nationality Act is upon the
commuter-applicant for admission. Section 291 of the Immigra713

Interim Decision #2086
tion and Nationality Act. This applicant has not met that burden.
As clarified above, we affirm the special inquiry officer's decision and the following order will enter.
ORDER: It is ordered that the decision of the special inquiry
officer be and the same is hereby affirmed.

714