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Volume 19


LAUREANO, 19 I&N Dec. 1 (BIA 1983)

ID 2951 (PDF)

(1) A marriage entered into for the primary purpose of circumventing the immigration laws, commonly referred to as a fraudulent or sham marriage, is not recognized for the purpose of obtaining immigration benefits.

(2) In determining whether a marriage is fraudulent for immigration purposes, the conduct of the parties after the marriage is relevant as to their intent at the time of marriage; evidence to establish intent may take many forms, including, but not limited to, proof that the beneficiary has been listed as the petitioner's spouse on insurance policies, property leases, income tax forms, or bank accounts, and testimony or other evidence regarding courtship, wedding ceremony, shared residence, and experiences.

(3) Where a visa petition has once been withdrawn based on an admission by a party that the marriage was solely entered into to bestow an immigration benefit, any subsequently filed visa petition involving the same petitioner and beneficiary must include at the time of filing: (1) an explanation of the prior withdrawal and (2) evidence supporting the bona fides of the parties' relationship.

(4) The petitioner bears a heavy burden to establish the bona fides of the marital relationship in the case of a prior visa petition withdrawal and an admission of a fraudulent marriage, and, absent the submission of the previously related materials at the time of filing, a district director can reasonably deny the petitioner based on the admission made in conjunction with the prior withdrawal.


CARDOSO, 19 I&N Dec. 5 (BIA 1983)

ID 2952 (PDF)

(1) To obtain a preference status for the beneficiary as his unmarried son under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1153(a)(2)(1982), a petitioner must establish that the beneficiary qualified as his "child" within the meaning of sections 101(b)(1)(A) or (C) of the Act, 8 U.S.C. Sec. 1101(b)(1)(A) or (C)(1982).

(2) Under the Republic of Cape Verde, Decree-Law No. 84/76 of September 25, 1976, "Laws on Marriage, Divorce and Filiation," effective October 1, 1976, and Judgment No. 16-80, Department of Studies, Legislation and Documentation of the Ministry of Justice of the Republic of Cape Verde, dated May 21, 1980, there is no distinction between legitimate and illegitimate children, and all children have equal rights under the law.

(3) A beneficiary who was born in Cape Verde on or after October 1, 1976, is deemed the legitimate "child" of his or her natural father under section 101(b)(1)(A) of the Act, whereas a beneficiary who was under 18 years of age on that date is deemed the legitimated "child" of his or her natural father under section 101(b)(1)(C) of the Act.


HERNANDEZ, 19 I&N Dec. 14 (BIA 1983)

ID 2953 (PDF)

(1) Under Colombian Law No. 29 of February 24, 1982, all children born in Colombia have equal rights and obligations.

(2) When the country where the beneficiary was born and resides eliminates all legal distinctions between legitimate and illegitimate children, all natural children are deemed to be the legitimate offspring of their natural father from the time that the country's laws are changed.

(3) If the status of a legitimate child arises after the child is born, the requirements of 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1101(b)(1)(C)(1982), must be met; therefore, the status of a legitimate child must arise prior to the beneficiary's 18th birthday to qualify the beneficiary for immigration benefits.


TORRE, 19 I&N Dec. 18 (BIA 1984)

ID 2954 (PDF)

(1) In an appeal from an immigration judge's decision in a deportation case, the record of proceeding must always contain the immigration judge's order, the Order to Show Cause and Notice of Hearing (Form I-221), any exhibits, and the Notice of Appeal (Form I-290A).

(2) Where it appears that an appeal may be appropriate for summary dismissal under 8 C.F.R. Sec. 3.1(d)(1-a)(1984), either party may request that the immigration judge forward the case to the Board without a transcript of the hearing.

(3) If the immigration judge determines that a transcript is necessary for proper adjudication of the appeal, he may direct that a transcript be included, and there shall be no appeal from this determination; otherwise, the immigration judge shall forward the request for review without a transcript to the Board for resolution, together with the other documents required to be included in the record. Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972), modified in part.


BENNETT, 19 I&N Dec. 21 (BIA 1984)

ID 2955 (PDF)

(1) An alien who is admitted to the United States as a nonimmigrant visitor, who without permission of the Immigration and Naturalization Service engages in purely religious activities on behalf of a church, and who is compensated for those activities, is deportable for failure to maintain status even if he now qualifies as a special immigrant minister and intends to work for the same church which has been employing him.

(2) Such employment also bars the alien from adjusting his status pursuant to section 245(c)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1255(c)(2)(1982).


CHERISMO, 19 I&N Dec. 25 (BIA 1984)

ID 2956 (PDF)

(1) Under the Civil Code of Haiti, as amended by the Presidential Decree of January 27, l959, children born out of wedlock and acknowledged by their natural father prior to January 27, l959, have the same rights and obligations as legitimate children. Matter of Mesias, 18 I&N Dec. 298 (BIA l982), clarified.

(2) Where the beneficiaries, natives and citizens of Haiti, were born out of wedlock in l954 and l955, respectively, and acknowledged by their natural father in l955, they are deemed legitimated children for immigration purposes under section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1101(b)(1)(C)(1982).


MANGASER, 19 I&N Dec. 28 (BIA 1984)

ID 2957 (PDF)

Under the Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116, 95 Stat. 1611, a nonimmigrant exchange alien (as defined in section 101(a)(15)(J) of the Act, 8 U.S.C. Sec. 1101(a)(15)(J)(1982)), is barred by section 244(f)(2) of the Act, 8 U.S.C. Sec. 1254(f)(2)(1982), from eligibility for suspension of deportation regardless of whether or not he is subject to or has fulfilled the 2-year foreign residence requirement of section 212(e) of the Act, 8 U.S.C. Sec. 1182(e)(1982). Matter of Pereyra, 16 I&N Dec. 590 (BIA 1978), superseded.


SHIRDEL, 19 I&N Dec. 33 (BIA 1984)

ID 2958 (PDF)

(1) Afghan nationals who arrived in the United States with fraudulent Turkish passports astransit without visa ("TRWOV") aliens in order to submit applications for asylum are excludable under the second clause of section 212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(a)(19)(1982), for attempting to enter the United States by fraud or material misrepresentation.

(2) The use of fraudulent Turkish passports by Afghan nationals in order to avail themselves of the TRWOV privilege was an integral part of their material misrepresentation in attempting to enter the United States.

(3) Afghan nationals who came here from a foreign port in order to submit applications forasylum attempted an "entry" into the United States within the meaning of section 101(a)(13) of the Act, 8 U.S.C. Sec. 1101(a)(13)(1982).

(4) An alien who circumvents the orderly procedures for obtaining refugee status abroad will be denied the discretionary relief of asylum in the absence of strong countervailing equities to overcome this serious adverse factor.

(5) Whether or not an applicant in exclusion proceedings is excludable under section 212(a)(19) of the Act is not determinative as to the issue of the discretionary relief of asylum. Matter of Salim, 18 I&N Dec. 311 (BIA 1982), clarified.


BRENINZON, 19 I&N Dec. 40 (BIA 1984)

ID 2959 (PDF)

(1) Article 6 of the 1979 Constitution of Peru does not eliminate all legal distinctions between legitimate and illegitimate children and, consequently, a child born out of wedlock in Peru may not be considered a legitimate or a legitimated child within the meaning of sections 101(b)(1)(A) or (C) of the Immigration and Nationality Act, 8 U.S.C. Sec.Sec. 1101(b)(1)(A) or (C)(1982), by virtue of its provisions.

(2) The legitimation of a child born out of wedlock can only be accomplished under Peruvian law by the subsequent marriage of the child's parents or by a judicial declaration upon petition of the legitimating parent. Matter of Quispe, 16 I&N Dec. 174 (BIA 1977), reaffirmed.


MATTI, 19 I&N Dec. 43 (BIA 1984)

ID 2960 (PDF)

(1) The Board of Immigration Appeals denied an application for a waiver of deportation undersection 241(f)(1) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(f)(1)(1982), on the ground of statutory ineligibility as well as in the exercise of administrative discretion, concluding that an alien who is excludable under section 212(a)(19) of the Act, 8 U.S.C. Sec. 1182(a)(19)(1982), for having entered the United States with an immigrant visa predicated upon a marriage fraud may not rely upon that fraud in order to obtain a waiver of deportation as a spouse of a United States citizen.

(2) In its decision, the Board of Immigration Appeals relied, in part, upon the legislative history of section 241(f) of the Act which reflects that the congressional intent was a humanitarian desire to unite families and preserve family ties by forestalling deportation where it would break up families composed, in part, of United States citizens or lawful permanent residents, and thus concluded that a marriage entered into solely for the purpose of obtaining immigration benefits was not a family tie which Congress intended to preserve under the statute.


KAZEMI, 19 I&N Dec. 49 (BIA 1984)

ID 2961 (PDF)

(1) An application for admission to the United States is a continuing application and an alien's admissibility is determined on the basis of the law and facts existing at the time the application is finally considered; therefore, the instant applicant is now inadmissible as a nonimmigrant student because he lacks a passport valid for at least the next 6 months, as required by 8 C.F.R. Sec. 214.2(f)(5)(i)(1984).

(2) The Board and immigration judges have jurisdiction to entertain an application for waiver of inadmissibility under section 212(d)(4) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(d)(4)(1982), where an alien renews such application before an immigration judge in exclusion proceedings following its initial denial by the district director. Matter of Ketema, 18 I&N Dec. 266 (BIA 1982), overruled. Matter of Le Floch, 13 I&N Dec. 251 (BIA 1969), reaffirmed.


DILLA, 19 I&N Dec. 54 (BIA 1984)

ID 2962 (PDF)

The Supreme Court of the United States has recently held that the 7 years' continuous physical presence requirement of section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1254(a)(1)(1982), was meant by Congress to be administered as written; accordingly, in an application for suspension of deportation, an alien must establish, inter alia, that he has been physically present in the United States without interruption for a period of 7 years before he is statutorily eligible for that relief. Matter of Herrera, 18 I&N Dec. 4 (BIA 1981); and Matter of Wong, 12 I&N Dec. 271 (BIA 1967), overruled.


FEDORENKO, 19 I&N Dec. 57 (BIA 1984)

ID 2963 (PDF)

(1) Under the judicially-developed doctrine of collateral estoppel, a prior denaturalization judgment conclusively establishes the "ultimate facts" of a subsequent deportation proceeding, i.e., those facts upon which an alien's deportability and eligibility for relief from deportation are to be determined, and precludes reconsideration of issues of law resolved by the prior judgment, so long as the issues in the prior suit and the deportation proceeding arise from virtually identical facts and there has been no change in the controlling law.

(2) The doctrine of collateral estoppel applies in deportation proceedings when there has been a prior judgment between the parties that is sufficiently firm to be accorded conclusive effect, the parties had a full and fair opportunity to litigate the issues resolved by and necessary to the outcome of the prior judgment, and the use of collateral estoppel is not unfair. Title v. INS, 322 F.2d 21 (9th Cir. 1963), distinguished.

(3) The language in section 242(b) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1252(b)(1982), which provides that a deportation proceeding shall be "the sole and exclusive procedure for determining the deportability of an alien," does not preclude the use of collateral estoppel in a deportation proceeding; rather this language was intended to exempt deportation proceedings from the provisions of any other law, most particularly the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, repealed by Pub. L. No. 89-554, 80 Stat. 378 (1966).

(4) A former prisoner of war of the Nazis who was forced to serve, upon penalty of death, as a concentration camp guard is deportable pursuant to section 241(a)(19) of the Act, 8 U.S.C. Sec. 1251(a)(19)(1982), for assisting the Nazis in persecuting others, even if his actions were involuntary and he personally harbored no racial or religious prejudice against Jews; the objective effect of an alien's actions, not his motivation and intent, controls in determining whether he "assisted" in persecution within the meaning of section 241(a)(19).

(5) The 1981 amendment to section 244(a) of the Act, 8 U.S.C. Sec. 1254(a)(1982), which withdrew suspension of deportation as an available form of relief in the case of aliens found deportable pursuant to section 241(a)(19) for assisting the Nazis in persecution, is properly applicable to an application for suspension of deportation filed prior to the 1981 amendment.


ALEJANDRO, 19 I&N Dec. 75 (BIA 1984)

ID 2964 (PDF)

Where the Notice of Appeal (Form I-290A) is not accompanied by the required fee or a correctly executed affidavit requesting waiver of the fee, it is not properly submitted for filing and shall be rejected by the officer having administrative jurisdiction over the case.


CARRILLO, 19 I&N Dec. 77 (BIA 1984)

ID 2965 (PDF)

Expunction of a marihuana conviction pursuant to Article 42.12, section 7, of the Texas Code of Criminal Procedure does not eliminate the conviction for purposes of deportation because that statute is not a state counterpart to the federal first offender statute, 21 U.S.C. Sec. 844(b)(1)(1982). Matter of Sirhan, 13 I&N Dec. 592 (BIA 1970); and Matter of O'Sullivan, 10 I&N Dec. 320 (BIA 1963), distinguished.


CHU, 19 I&N Dec. 81 (BIA 1984)

ID 2966 (PDF)

(1) Certificates issued by notarial offices in the People's Republic of China ("PRC") which are offered as proof of post-1950 adoptions in mainland China shall be accepted as evidence both that the adoptive relationship was created and that the adoption is regarded as valid by the PRC Government. Matter of May, 18 I&N Dec. 381 (BIA 1983), distinguished. Matter of Ho, 18 I&N Dec. 152 (BIA 1981), superseded.

(2) A certificate issued by one of the PRC's notarial offices is an essential element of proof in establishing the existence of a valid post-1950 adoption in the PRC in that if an applicant for such certificate is unable to persuade notarial officials that the certificate should be issued, either because of questions relating to the establishment of the adoption or its conformance to PRC public policy, then he cannot satisfy his burden of proving that the claimed relationship exists for purposes of our immigration laws.

(3) Certificates issued by notarial offices in the PRC shall not be regarded as conclusive proof of the facts certified because of the potential for fraud or error in their issuance: fraud or mistake may reasonably be suspected where the facts recited on the notarial certificate are contradicted by other evidence and the inconsistencies have not been satisfactorily explained by the petitioner or where there is an absence of sufficient corroborating evidence.


McMULLEN, 19 I&N Dec. 90 (BIA 1984)

ID 2967 (PDF)

(1) An alien seeking asylum or withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act, 8 U.S.C. Sec.Sec. 1158(a) and 1253(h)(1982), has the burden of showing that the persecution he fears is based on his race, religion, nationality, membership in a particular social group, or political opinion.

(2) The respondent's refusal, for reasons of personal safety, to carry out a kidnapping assignment ordered by the Provisional Irish Republican Army ("PIRA") neither constitutes political opinion nor represents conduct which Congress intended to protect by its adoption of the asylum and withholding provisions contained in the Act.

(3) Any person who ordered, incited, assisted, or otherwise participated in the persecution of others on account of race, religion, nationality, membership in a particular social group, or political opinion is specifically excluded from the definition of "refugee" under section 101(a)(42) of the Act, 8 U.S.C. Sec. 1101(a)(42)(1982), and is thus ineligible for asylum under section 208(a) of the Act; similarly, such a person is prohibited from obtaining withholding of deportation under section 243(h)(2)(A) of the Act.

(4) The statutory exclusion from the definition of "refugee" of those persons who have participated in the persecution of others represents the view of the Congress that such persons are unworthy and undeserving of international protection.

(5) The scope of the statutory exclusion of those persons who have participated in the persecution of others is not limited to acts committed in an official capacity but is equally applicable to acts committed within the framework of various nongovernmental groupings, whether officially recognized, clandestine, or self-styled, and this restriction applies even though the person so excluded may, in fact, be the subject of persecution and notwithstanding that his persecution of others was politically motivated.

(6) The respondent, by his active and effective membership in the PIRA, participated in the persecution of targeted individuals based upon their public opposition to the PIRA and its terrorist activities and, as such, he may not be considered a refugee within the meaning of the Act and is, accordingly, statutorily ineligible for both asylum and withholding of deportation.

(7) The respondent's involvement in the terrorist use of explosives and his participation in the PIRA's campaign of violence randomly directed against civilians represent acts of an atrocious nature out of proportion to the political goal of achieving a unified Ireland and are not, therefore, within the political offense exception; accordingly, his conduct provides "serious reasons for considering" that he has "committed serious non-political crimes" prior to his arrival in this country, making him statutorily ineligible for relief under sections 208(a) and 243(h) of the Act.


VILLANUEVA, 19 I&N Dec. 101 (BIA 1984)

ID 296 (PDF)

Unless void on its face, a valid United States passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative immigration proceedings but constitutes conclusive proof of such person's United States citizenship.


SANTOS, 19 I&N Dec. 105 (BIA 1984)

ID 2969 (PDF)

(1) An alien must demonstrate that he has been prejudiced by a violation of a procedural rule or regulation before his deportation proceeding will be invalidated.

(2) In cases arising outside of the United States Courts of Appeals for the Seventh Circuit and the District of Columbia Circuit, a violation of the right to counsel in a deportation proceeding may be disregarded as harmless error so long as the violation is not fundamentally unfair and does not demonstrably prejudice the alien.

(3) The scheduling of a deportation hearing on less than 7 days' notice does not violate either the notice requirement of 8 C.F.R. Sec. 242.1(b)(1984) or the constitutional guarantee of due process when the district director finds the public interest requires shorter notice, the notice is reasonable under the circumstances of the case, and the alien is not prejudiced.


CHICAS, 19 I&N Dec. 114 (BIA 1984)

ID 2970 (PDF)

A Notice of Appeal (Form I-290A) and fee waiver request accompanied by an unsworn declaration made in accordance with 28 U.S.C. Sec. 1746 (1982) will be accepted as properly filed if it otherwise comports with the requirements of 8 C.F.R. Sec. 3.3 (1984).


REPUYAN, 19 I&N Dec. 119 (BIA 1984)

ID 2971 (PDF)

A reading of the plain language and legislative history of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1101(b)(l)(E)(1982), establishes that Congress intended that the 2-year residence requirement vis-a-vis an adopted child connote a familial relationship not inherent in a mere visit; therefore, a petitioner fails to meet his burden of proof in visa petition proceedings by merely showing a succession of visits by the adopting parent in the home of the adopted child.


ALLIED FIDELITY INSURANCE COMPANY, 19 I&N Dec. 124 (Comm. 1984)

ID 2972 (PDF)

(1) Petition by an alien for a writ of habeas corpus does not relieve an obligor of his responsibility to surrender the alien on demand pursuant to the terms of a delivery bond where the court has in no way relieved the obligor of this responsibility.

(2) Failure of the obligor to surrender the alien as required is not a mere technical or unimportant occurrence because sometime during the day on which surrender was demanded the alien filed a petition for a writ of habeas corpus; the alien's petition for a writ of habeas corpus is not therefore properly advanced as probative of substantial compliance with the terms of the delivery bond.


CORREA, 19 I&N Dec. 130 (BIA 1984)

ID 2973 (PDF)

(1) Although an immigration judge's decision granting a motion to reopen deportation proceedings is an interlocutory order, the Board of Immigration Appeals will entertain an appeal from that decision where a pattern of improper handling of motions by the immigration judge has developed.

(2) Where a motion to reopen deportation proceedings is opposed by either party, the immigration judge in ruling on the motion must state in writing the reasons for his decision; therefore, an immigration judge's use of Form I-328 (Order on Motion to Reopen Proceedings) to grant an opposed motion and his failure to provide an analysis of his reasons for granting the motion were inappropriate.

(3) In determining whether extreme hardship has been established for suspension of deportation purposes, equities which are acquired after a final order of deportation has been issued against an alien are entitled to less weight than those acquired before an alien has been found deportable.


LEON-OROSCO AND RODRIGUEZ-COLAS, 19 I&N Dec. 136 (BIA 1984; AG 1984)

ID 2974 (PDF)

(1) A motion to reopen exclusion proceedings for the purpose of applying for asylum and withholding of deportation will not be granted where a prima facie case of eligibility for such relief has not been established, the alien has not reasonably explained his failure to assert his asylum claim prior to completion of his exclusion hearing, or the immigration judge is not satisfied that the evidence sought to be offered is material, was not available, and could not have been discovered or presented at the time of the original hearing.

(2) Notwithstanding a clear showing of prima facie eligibility for the underlying relief sought, a motion to reopen proceedings can be denied for discretionary reasons where, for example, the record reflects little likelihood of success on the merits if reopening is permitted.

(3) Notwithstanding the submission of extensive documentation in support of the motion to reopen proceedings and assuming arguendo, that as a Mariel participant, the applicant is a member of a "particular social group," he has not made a prima facie showing that his life or freedom would be threatened or that he will be persecuted or has a well-founded fear of persecution if returned to Cuba based on that membership.

(4) The refusal of a country to accept the return of its nationals does not, by itself, provide the basis for an asylum claim.

(5) Recognizing that a failure to address the effect of a stipulation between the parties is not a rejection of it, the Attorney General found nothing in the Board of Immigration Appeals' statement which precluded the parties from abiding by the stipulation and permitting it to govern their conduct; inasmuch as the stipulation dealt with the subsequent effect of test cases on other parties not presently before the Board, the Attorney General determined that it was not necessary for the Board to discuss the stipulation's effect and not inappropriate to defer doing so until it was faced with a case in which the terms of the stipulation were material to the resolution of a controversy.

(6) The Attorney General found no error in the Board's refusal to provide an exegesis on the phrase "membership in a particular social group," where reaching that issue was not necessary in resolving the case and would have, under the circumstances, represented an advisory opinion on an issue that, while important, did not need to be resolved by the Board.


KHATOON, 19 I&N Dec. 153 (BIA 1984)

ID 2975 (PDF)

(1) In order for an adoption to be valid for immigration purposes, it first must be shown that the adoption conformed with and is recognized by the applicable law of the jurisdiction where it occurred.

(2) Under the Indian Muslim Personal Law Application Act, which applies to Moslems in India, adoption among Moslems is not legally recognized or valid; therefore, Moslem adoptions in India are invalid for purposes of the Immigration and Nationality Act. Matter of Irani, 15 I&N Dec. 569 (BIA 1976), distinguished.


CONNELLY, 19 I&N Dec. 156 (BIA 1984)

ID 2976 (PDF)

(1) Section 241(f) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(f)(1982), only waives excludability grounds that existed at the time of an alien's entry into the United States.

(2) An alien who becomes admissible to the United States for permanent residence by virtue of his adjustment of status under section 245 of the Act, 8 U.S.C. Sec. 1255 (1982), does not make an entry into the United States.

(3) The respondent's fraudulent act took place after he had entered the United States when he sought adjustment of status under section 245 of the Act; therefore, he was not excludable on the basis of this fraud at the time of an entry.

(4) The provisions of Section 241(f) of the Act do not apply to frauds committed by the respondent when he was in the process of adjusting his status to that of a lawful permanent resident under section 245 of the Act.


SHUEN, 19 I&N Dec. 161 (BIA 1984)

ID 2977 (PDF)

(1) A preliminary injunction against enforcement of the amended regulation that revises the procedure for imposing a condition in an alien's appearance-and-delivery bond prohibiting unauthorized employment, 8 C.F.R. Sec.Sec. 103.6(a)(2)(ii)-(iii)(1984), does not automatically cause the original version of that regulation to be revived.

(2) The Immigration and Naturalization Service may not rely upon a regulation that is no longer in effect to impose a condition in an alien's bond prohibiting unauthorized employment.


PEREIRA, 19 I&N Dec. 169 (BIA 1984)

ID 2978 (PDF)

(1) Under current rescission regulations, the statute of limitations prescribed in section 246(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1256(a)(1982), is tolled by the issuance of a Notice of Intent to Rescind within 5 years of the respondent's adjustment of status. Quintana v. Holland, 255 F.2d 161 (3d Cir. 1958), distinguished.

(2) Section 241(f) of the Act, 8 U.S.C. Sec. 1251(f)(1982), by its very terms, refers only to a deportation proceeding and is not applicable to rescission proceedings instituted to determine an alien's eligibility for a previous grant of adjustment of status.


BENITEZ, 19 I&N Dec. 173 (BIA 1984)

ID 2979 (PDF)

(1) The burden and presumption of section 291 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1361 (1982), are applicable not only to a charge of entry without inspection, but to any charge of deportability which draws into question the time, place, or manner of the alien's entry into the United States.

(2) Deportability under section 241(a)(1) of the Act, 8 U.S.C. Sec. 1251(a)(1)(1982), as one who was excludable at entry as a stowaway under section 212(a)(18) of the Act, 8 U.S.C. Sec. 1182(a)(18)(1982), is established by the respondent's admission of birth in Colombia and the presumption of section 291 of the Act, where the respondent failed to meet his burden to show the time, place, and manner of his entry into the United States.


WADUD, 19 I&N Dec. 182 (BIA 1984)

ID 2980 (PDF)

An alien deportable under section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(5)(1982), is not eligible for a waiver pursuant to section 212(c) of the Act, 8 U.S.C. Sec. 1182(c)(1982), because no analogous ground of inadmissibility is enumerated in section 212(a) of the Act. Matter of Hom, 16 I&N Dec. 112 (BIA 1977); and Matter of Tanori, 15 I&N Dec. 566 (BIA 1976), modified.


WALDEI, 19 I&N Dec. 189 (BIA 1984)

ID 2981 (PDF)

(1) An alien who arrives in the United States as a stowaway is not accorded additional rights by virtue of his subsequent parole into this country pending the adjudication of his asylum application, and such parole does not alter his status as a stowaway.

(2) The exclusionary procedures set forth in section 235(b) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1225(b)(1982), do not apply to alien crewmen or stowaways; hence, the applicant, a stowaway, was subject to exclusion from the United States without an exclusion hearing or right of appeal from such hearing usually available to aliens seeking entry into this country.

(3) Where the applicant is a stowaway and thus not entitled to an exclusion or deportation hearing, the immigration judge is without authority to consider his renewed application for asylum.

(4) The Board of Immigration Appeals, by adopting the position that Congress intended a distinct and disparate treatment under the Act for illegal crewman and stowaways, declines to follow the holding of the United States Court of Appeals for the Second Circuit in Yiu Sing Chun v. Sava, 708 F.2d 869 (2d Cir. 1983), and thus concludes that an alien stowaway is not entitled to a hearing before an immigration judge for the purpose of adjudicating a renewed asylum application.

(5) The alien stowaway is not deprived of the opportunity to have his asylum claim considered, but in view of his status under the Act that opportunity is limited to consideration by the district director.


PORTUGUES DO ATLANTICO INFORMATION BUREAU, INC., 19 I&N Dec. 194 (Comm. 1984)

ID 2982 (PDF)

(1) The proposition that experience is the same as or generally can be substituted for the normal educational requirements for a particular position is erroneous.

(2) Individuals lacking the particular degrees normally prerequisite to professional practice in their fields of endeavor may be classified as professionals in rare instances where they occupy clearly professional positions, have substantially completed normal educational requirements for the position they occupy, are recognized and permitted to practice as professionals. Case law also accommodates those instances where individuals attain professional standing through directed experience and specialized instruction recognized by appropriate professional bodies as a form of preparation for the practice of particular professions, e.g., "reading" law.

(3) A professional position is one which requires a standard and at least baccalaureate level of university education for practice, in which that education is applied, and which requires extensive autonomous application of individual professional knowledge to particular fact situations.


KEKICH, 19 I&N Dec. 198 (BIA 1984)

ID 2983 (PDF)

(1) Where expatriation is in issue, commission of any of the acts specified in section 349(a) of the Immigration and Nationality Act, 8 U.S.C. § 1481(a) (1982), may be viewed as highly persuasive evidence of an intent to abandon United States citizenship; and under section 349(c), the Government satisfies its evidentiary burden by showing by a preponderance of the evidence that the citizen has committed an intentional expatriating act. Matter of Wayne, 16 I&N Dec. 248 (BIA 1977), overruled (as to evidentiary standard to be applied).

(2) Citizenship will not be lost when the citizen commits an expatriating act under circumstances involving duress, mistake, or incapacity negating a free choice; however, a presumption exists under section 349 that an expatriating act is voluntary unless rebutted.

(3) Where the petitioner failed to distinguish between coercion and motivation, the Board of Immigration Appeals concluded that her naturalization in Venezuela was not the result of coercion, but rather the result of personal choice, and consequently voluntary.


CHING AND CHEN, 19 I&N Dec. 203 (BIA 1984)

ID 2984 (PDF)

Aliens who were refused admission and subsequently escaped from carrier custody while awaiting removal thereby "entered" the United States and so are subject only to deportation proceedings. Matter of A-, 9 I&N Dec. 356 (BIA 1961), followed. Matter of Lin, 18 I&N Dec. 219 (BIA 1982), distinguished.


RODRIGUEZ-COTO, 19 I&N Dec. 208 (BIA 1985)

ID 2985 (PDF)

(1) The phrases "particularly serious crime" and "serious non-political crime" in sections 243(h)(2)(B) and (C) of the Immigration and Nationality Act, 8 U.S.C. §§ 1253(h)(2)(B) and (C) (1982), respectively, cannot be interpreted in a manner that would vary dependent on the nature of the evidence of persecution an alien introduces.

(2) The modifiers "particularly serious" and "serious" in sections 243(h)(2)(B) and (C) of the Act relate only to the nature of the crime itself.


ACOSTA, 19 I&N Dec. 211 (BIA 1985)

ID 2986 (PDF)

(1) Construction of the provisions the United Nations Protocol Relating to the Status ofRefugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268, is left by that agreement to each state that is party to the Protocol; accordingly, the various international interpretations of the Protocol, including the Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees published by the Office of the United Nations High Commissioner for Refugees, are useful tools in construing our obligations under the Protocol, but they are neither binding upon the United States nor controlling as to construction of the Refugee Act of 1980.

(2) An alien in an exclusion or deportation proceeding who seeks to demonstrate eligibility for either asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1982), or withholding of deportation under section 243(h) of the Act, 8 U.S.C. § 1253(h) (1982), must make two related showings: he must meet his evidentiary burdens of proof and persuasion as to the facts, and he must meet the statutory standards of eligibility set out by the pertinent provisions in the Act.

(3) It is the alien who bears the burdens of proof and persuasion in asylum and withholding of deportation cases and he must establish the facts by a preponderance of the evidence.

(4) In order to meet the statutory standard of eligibility for asylum, an alien must satisfy each of the following four elements in the definition of a refugee created by section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982): (1) the alien must have a "fear" of "persecution"; (2) the fear must be "well founded"; (3) the persecution feared must be "on account of race, religion, nationality, membership in a particular social group, or political opinion"; and (4) the alien must be unable or unwilling to return to his country of nationality or to the country in which he last habitually resided because of persecution or his well-founded fear of persecution.

(5) The statutory standard for asylum requires the facts to show that an alien's primary motivation for requesting refuge in the United States is "fear," i.e., a genuine apprehension or awareness of danger in another country; no other motivation will suffice.

(6) The term "persecution" in the definition of a refugee under the Act means harm or suffering that is inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome; the word does not encompass the harm that arises out of civil or military strife in a country.

(7) The requirement of a "well-founded fear of persecution" in section 101(a)(42)(A) of the Act means that an individual's fear of persecution must have its basis in external, or objective, facts that show there is a realistic likelihood he will be persecuted upon his return to a particular country; this requires an alien to show that his fear has a solid basis in objective facts or events and that it is likely he will become the victim of persecution.

(8) In order for an alien to show that it is likely he will become the victim of persecution, his evidence must demonstrate that (1) the alien possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could easily become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien.

(9) The well-founded fear standard for asylum and the clear probability standard for withholding of deportation are not meaningfully different and, in practical application, converge.

(10) "Persecution on account of membership in a particular social group" refers to persecution that is directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic, i.e., a character- istic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.

(11) In order for an alien to show persecution on account of "political opinion" within the meaning of the Act, it is not sufficient to show that a persecutor's conduct furthers his goals in a political controversy; rather, the alien must show that it is his own, individual political opinion that a persecutor seeks to overcome by the infliction of harm or suffering.

(12) The requirement that an alien must be unable or unwilling to return to a particular country because of persecution or a well-founded fear of persecution requires an alien to do more than show a threat of persecution in a particular place or abode within a country -- he must show that the threat of persecution exists for him country-wide.


GOLDEN DRAGON CHINESE RESTAURANT, 19 I&N Dec. 238 (Comm. 1984)

ID 2987 (PDF)

(1) In proceedings pursuant to section 101(a)(15)(H)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(ii) (1982), the role of the Department of Labor is strictly advisory and temporary labor certification determinations by the Department of Labor are not binding on the Immigration and Naturalization Service.

(2) Petitions pursuant to section 101(a)(15)(H)(ii) of the Act for a class or type of employee for which the petitioner has a permanent need where the petitioner makes attempts to establish the temporariness of its need for the beneficiary's services by stipulating that the beneficiary will function as a trainer or instructor rather than in a productive capacity must be accompanied by evidence of the existence of a training program, by evidence that the petitioner has recruited or hired trainees, and by evidence that the petitioner can viably employ a full-time instructor and can viably simultaneously operate a training program and a commercial or other enterprise.


CANTEC REPRESENTATIVES, INC., 19 I&N Dec. 241 (Comm. 1984)

ID 2988 (PDF)

(1) An incumbent in a Schedule A, Group IV position does not have to meet the exact minimum job qualifications specified by the employer in the application for a blanket labor certification submitted to obtain third-preference visa status because an employer may stipulate a minimum educational qualification for such a position which it regards as equivalent to an incumbent's experience or occupational training.

(2) However, the minimum job qualifications are relevant to consideration of the visa petition because they will establish whether or not the position falls within the definition of a "profession" for the purpose of section 203(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(3) (1982).

(3) Similarly, despite the fact that the incumbent need not meet the express minimum job qualifications, it must be established that the incumbent is classifiable as a professional forpurposes of section 203(a)(3) of the Act.


NGAI, 19 I&N Dec. 245 (Comm. 1984)

ID 2989 (PDF)

Approval of an application for a waiver of a bar to admission pursuant to section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (1982), is dependent in part upon a showing of extreme hardship, and thus only in cases of great actual or prospective injury to a qualifying party will the bar be removed.


UNITED INVESTMENT GROUP, 19 I&N Dec. 248 (Comm. 1984)

ID 2990 (PDF)

(1) Neither a sole proprietorship nor a partnership is a legal entity apart from its owner or owners.

(2) For the purpose of a visa petition, the actual partnership which existed when the job offer was made and certified must continue and intend to employ the beneficiary as certified. A separately entered partnership or newly constituted partnership may not be a successor of interest for this purpose.


VIADO, 19 I&N Dec. 252 (Comm. 1985)

ID 2991 (PDF)

(1) Receipt of Supplemental Security Income ("SSI") constitutes receipt of public assistance and is sufficient cause to breach a public charge bond, even in theabsence of a demand for repayment.

(2) Ignorance on the part of the obligor that receipt of SSI may result in a public charge bond breach does not render such action insubstantial.


BAROCIO, 19 I&N Dec. 255 (Comm. 1985)

ID 2992 (PDF)

(1) An alien who has violated a lawful order of deportation by failing to report to the Immigration and Naturalization Service following notification that his deportation has been scheduled does not merit the favorable exercise of discretion required for reopening of deportation proceedings.

(2) Notice of a decision of the Board of Immigration Appeals sent to an alien's attorney of record constitutes notice to the alien.

(3) The unsupported claim that the respondents' failure to depart voluntarily was due to their unawareness of the Board's decision does not demonstrate a compelling reason to warrantreinstatement of voluntary departure where the record reflects that notice of the decision was sent to counsel.


PATEL, 19 I&N Dec. 260 (BIA 1985)

ID 2993 (PDF)

(1) Where an alien had notice of his hearing, had an opportunity to attend, and showed no reasonable cause for his failure to appear, the hearing may properly be held in absentia.

(2) The submission of a motion for a continuance does not relieve an alien or his attorney of the responsibility to attend a deportation hearing of which they have been given notice.

(3) Unless a motion for a continuance has been granted prior to the hearing, the alien remains obligated to appear before an immigration judge at the appointed date and time to plead to the factual allegations and the charge of deportability stated in the Order to Show Cause and Notice of Hearing (Form I-221).

(4) The immigration judge properly conducted the respondent's hearing in absentia where no reasonable cause was offered for the respondent's absence and counsel's own failure toappear.


TAYABJI, 19 I&N Dec. 264 (BIA 1985)

ID 2994 (PDF)

(1) The favorable recommendation of the Secretary of State is a necessary prerequisite to approval of an application for waiver of the 2-year foreign residence requirement under section 212(e) of the Immigration and Nationality Act, 8 U.S.C. § 1182(e) (1982).

(2) An immigration judge has full authority in rescission proceedings under section 246 of the Act, 8 U.S.C. § 1256 (1982), to determine whether a section 212(e) waiver application, on which an alien's adjustment of status had been premised, was approved in error; a preliminary revocation of such waiver by the Immigration and Naturalization Service is neither necessary nor contemplated.

(3) An alien's adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1982), is properly rescinded where his application for a section 212(e) waiver, upon which such adjustment had been premised, was approved in error due to the absence of the required favorable recommendation of the Secretary of State.

(4) A district director's approval of an alien's section 212(e) waiver application in excess of his authority does not operate to estop the Government from enforcing the congressionally imposed residency requirements of sections 212(e) and 245 of the Act.


GARCIA, 19 I&N Dec. 270 (BIA 1985)

ID 2995 (PDF)

(1) Although Article 42.12, section 3d of the Texas Code of Criminal Procedure is not a firstoffender statute, a person sentenced to probation under that statute has not been convicted for immigration purposes because adjudication of guilt has been withheld by the trial court.

(2) Where there has been no affirmative showing that the trial judge lacked authority underTexas law to order a new trial and resentence the respondent, the Board of Immigration Appeals will not question the judge's jurisdiction to so act.


SANCHEZ AND ESCOBAR, 19 I&N Dec. 276 (BIA 1985)

ID 2996 (PDF)

(1) The United States Court of Appeals for the Ninth Circuit has concluded that the "well-founded fear" standard for asylum and the "clear probability" standard for withholding of deportation are meaningfully different and that the former is "more generous" than the latter.

(2) In describing the amount and type of evidence required to establish that a fear of persecution is "well founded," the Ninth Circuit has held that an alien must point to specific, objective facts that support an inference of past persecution or risk of future persecution; that the necessary objective facts may be established through the credible and persuasive testimony of the alien; and that only after objective evidence sufficient to suggest a risk of persecution has been introduced do the alien's subjective fears become relevant.

(3) The term "persecution" as it appears in section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1982), requires that the alien demonstrate awell-founded fear that he would be targeted for harm or suffering on the basis of one of the enumerated grounds within the Act for which asylum may be granted.

(4) Our conclusion that the harm resulting from country-wide civil strife and anarchy is not persecution is based not only on the pre-1980 construction of the word "persecution" but also on the fact that Congress specifically rejected a definition of "refugee" in section 101(a)(42)(A) of the Act that would have included "displaced persons," i.e., individuals who flee wide-spread conditions of indiscriminate violence resulting from civil war or military strife in a country.

(5) Throughout these proceedings the respondents have argued that they have a well-founded fear of persecution if returned to El Salvador on the basis of their "membership in a particular social group," comprised of young (18 to 30 years of age), urban, working-class males of military age who have not served in the military or otherwise affirmatively demonstrated their support for the Government of El Salvador; however, the respondents have not established the existence of a "particular social group" which is persecuted on account of the group's specific identifying characteristics and whose treatment based on those characteristics is distinct from the general population.

(6) While the respondents have shown statistically that many of those being killed in El Salvador are young males, a purely statistical showing is not by itself sufficient proof of the existence of a persecuted group; additionally, it is not enough to simply identify the common characteristics of a statistical grouping of a portion of the population at risk, but in the context of the asylum and withholding provisions related to "membership in a particular social group" under the Act there must be a showing that the claimed persecution is on account of the group's identifying characteristics.


KUMAH, 19 I&N Dec. 290 (BIA 1985)

ID 2997 (PDF)

(1) A court decree confirming a nonjudicial divorce under Ghanaian customary law issued by an appropriate Ghanaian court is accepted as evidence both that a customary marriage was dissolved by a customary divorce and that the customary divorce is regarded as valid by the Ghanaian Government.

(2) A Ghanaian court decree which either grants or confirms a Ghanaian customary divorce is an essential element of proof in substantiating a claimed customary divorce in that if the petitioner is unable to persuade Ghanaian court officials that the decree should be issued because the questions relating to the tribal affiliations of the parties concerned, the customary divorce law of that tribe, or the conformance to the pertinent ceremonial procedures, then that petitioner cannot satisfy his burden of proving the claimed customary divorce for purposes of the United States immigration laws. Matter of DaBaase, 16 I&N Dec. 720 (BIA 1979), aff'd, DaBaase v. INS, 627 F.2d 117 (8th Cir. 1980) (per curiam); Matter of DaBaase, 16 I&N Dec. 39 (BIA 1976); and Matter of Akinola, 15 I&N Dec. 359 (BIA 1975), modified.

(3) A Ghanaian court decree confirming a nonjudicial divorce under Ghanaian customary law is not deemed to be conclusive proof of the facts certified therein because of the potential for fraud or error in their issuance: fraud or mistake may be reasonably suspected where the facts recited on the decree of confirmation are contradicted by other evidence and the discrepancies have not been satisfactorily explained by the petitioner or where there is an absence of sufficient corroborating evidence.


ZAIDAN, 19 I&N Dec. 297 (BIA 1985)

ID 2998 (PDF)

(1) The parameters of the appellate jurisdiction of the Board of Immigration Appeals are circumscribed by the regulations which are set forth in 8 C.F.R. § 3.1(b) (1985).

(2) Under 8 C.F.R. § 3.1(b)(5) (1985), the Board's authority to review decisions regarding visa petition revocation is limited to that accorded by 8 C.F.R. §§ 205.1 and 205.2 (1985).

(3) Since there is no provision for appellate review when a visa petition is automatically revoked under 8 C.F.R. § 205.1 (1985), the Board lacks jurisdiction over appeals dealing with the automatic revocation of a petition.


SANO, 19 I&N Dec. 299 (BIA 1985)

ID 2999 (PDF)

(1) An appeal from the denial or revocation of a visa petition may be filed only by the petitioner.

(2) Since the appellate jurisdiction of the Board of Immigration Appeals is defined by the regulations set forth in 8 C.F.R. § 3.1(b) (1985), the Board has no jurisdiction over a particular matter unless it has been affirmatively granted by the regulations.

(3) Under 8 C.F.R. § 3.1(b)(5) (1985), the Board's authority to review decisions on visa petitions is limited to that accorded by Part 204 of the regulations, which provides only for an appeal by the petitioner.

(4) Since the Board's jurisdiction over decisions on visa petitions is limited to appeals by the petitioner, the Board lacks jurisdiction to address an appeal by the beneficiary from the denial of a visa petition. Matter of Varela, 13 I&N Dec. 453 (BIA 1970), modified.

(5) The regulation at 8 C.F.R. § 3.1(c) (1985), which grants the Board power to certify cases, permits certification only to matters within the Board's appellate jurisdiction as set forth in 8 C.F.R. § 3.1(b) (1985).

(6) Since the Board lacks authority to review an appeal by a beneficiary from the denial of a visa petition, such an appeal also may not be reviewed upon certification. Matter of Arteaga-Godoy, 14 I&N Dec. 226 (BIA 1972), overruled.


LINNAS, 19 I&N Dec. 302 (BIA 1985)

ID 3000 (PDF)

(1) The term "country," used to describe a place of deportation under section 243(a) of the Immigration and Nationality Act, 8 U.S.C. § 1253(a) (1982), means, at a minimum, a foreign place with "territory" in a geographical sense and a "government" in the sense of a political organization that exercises power on behalf of the people subjected to its jurisdiction.

(2) Offices maintained in New York City on behalf of the Republic of Estonia do not qualify under section 243(a) of the Act as a "country" of deportation.

(3) When an alien who is a native of Soviet-occupied Estonia steadfastly rejects allegiance to the Soviet Union, that country does not constitute a country of which the alien is a "subject, national, or citizen" within the meaning of section 243(a) of the Act.

(4) When no other country but the Soviet Union is willing to accept a deportable alien into its territory, then the Soviet Union properly may be designated as the country of deportation under the provision in section 243(a)(7) of the Act authorizing deportation of an alien to any country that is willing to accept him.


GHARADAGHI, 19 I&N Dec. 311 (BIA 1985)

ID 3001 (PDF)

(1) An alien who circumvents the orderly procedures for obtaining refugee status abroad may be granted asylum as a matter of discretion if he establishes sufficient countervailingequities.

(2) Generally, it will be necessary to balance the positive and negative factors in each case where an alien's circumvention of the orderly refugee procedures does not involve a finding of fraud under section 212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(19) (1982). Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984); and Matter of Salim, 18 I&N Dec. 311 (BIA 1982), clarified.


KULLE, 19 I&N Dec. 318 (BIA 1985)

ID 3002 (PDF)

(1) The term "persecution" as used in section 241(a)(19) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(19) (1982), includes the confinement of political prisoners, Jehovah's Witnesses, Protestant and Catholic clergy, Jews, and other opponents of the Nazi regime in the Nazi work camp at Gross-Rosen.

(2) Those persons who actively participated in the management of Nazi concentration camps which included the supervising and training of concentration camp guards engaged in persecution as defined under section 241(a)(19) of the Act.

(3) The respondent, a concentration camp guard at Gross-Rosen, assisted in the persecution of prisoners who, because of their religious and political beliefs, were singled out for harsher treatment.

(4) The respondent was found to have assisted in the persecution of prisoners under section 241(a)(19) of the Act notwithstanding the absence of evidence that his activities were the result of political or religious motivation.

(5) The respondent, who claimed that he merely obeyed orders and was denied a transfer from the Gross-Rosen concentration camp, did assist in persecution and is deportable under section 241(a)(19) of the Act, notwithstanding his claim that his actions were involuntary.

(6) The respondent materially misrepresented his wartime military service to immigration authorities and thus is deportable as excludable at entry under sections 212(a)(19) and (20) of the Act, 8 U.S.C. §§ 1182(a)(19) and (20) (1982).

(7) An alien deportable under section 241(a)(19) of the Act is ineligible for relief from deportation under sections 241(f) and 244(a) and (e) of the Act, 8 U.S.C. §§ 1251(f) and 1254(a) and (e) (1982).


GRAVES, 19 I&N Dec. 337 (BIA 1985)

ID 3003 (PDF)

(1) It is not possible to construe the uninterrupted physical presence requirement of section 316(b) of the Act, 8 U.S.C. § 1427(b) (1982), to allow departures from the United States. INS v. Phinpathya, 464 U.S. 183 (1984), followed; INTERP. 316.1(c)(3) overruled.

(2) The effect of Rosenberg v. Fleuti, 374 U.S. 449 (1963), cannot be extended to statutory schemes which include a requirement of uninterrupted or continuous physical presence.

(3) An applicant's failure to establish that he or she has been present in the United States for an uninterrupted period of 1 year after lawful admission for permanent resident bars eligibility for preservation under section 316(b).

(4) Any departure from the United States for any reason or period of time bars a determination that an alien has been continuously physically present in the United States or present in the United States for an uninterrupted period during the period including the departure.


TUAKOI, 19 I&N Dec. 341 (BIA 1985)

ID 3004 (PDF)

(1) An alien who did not come to the United States to receive graduate medical training, but who was admitted to the United States as an exchange alien under section 101(a)(15)(J) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(J) (1982), would not be barred from applying for suspension of deportation if he was not subject to the 2-year requirement of section 212(e) of the Act, 8 U.S.C. § 1182(e) (1982), or if he had fulfilled the requirement, or if he had obtained a waiver thereof.

(2) The respondent, who came to the United States to obtain a college degree and not to obtain a graduate medical education, is subject only to the provisions of section 244(f)(3) of the Act, 8 U.S.C. § 1254(f)(3) (1982); hence, the facts in this case are distinguishable from those in Matter of Mangaser, 19 I&N Dec. 28 (BIA 1983), in which we held that the alien, who was a physician coming to the United States to receive graduate medical training, was subject to the provisions of section 244(f)(2) of the Act and, therefore, ineligible for suspension of deportation regardless of whether he was subject to or had fulfilled the 2-year residence requirement of section 212(e) of the Act. Matter of Mangaser, supra, distinguished.

(3) The respondent, who was reinstated to exchange visitor ("J-1") status after admission to the United States and at his own request in 1979, became subject to the requirements of the Act and regulations in effect on the date of his reinstatement and, therefore, the 2-year foreign residence requirement applies to him. Matter of Baterina, 16 I&N Dec. 127 (BIA 1977), followed.

(4) Assuming arguendo that the doctrine of estoppel is applicable against the Government in immigration cases, the respondent has failed to establish affirmative misconduct on the part of the Government or reasonable reliance upon the decision of an immigration inspector.


NAULU, 19 I&N Dec. 351 (BIA 1985)

ID 3005 (PDF)

A derivative beneficiary "accompanying or following to join" a principal alien under section 203(a)(8) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(8) (1982), cannot precede the principal alien to the United States as an immigrant; however, once the principal alien acquires permanent resident status, his spouse or child is not barred as a matter of law from adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (1982), by reason of having preceded the principal alien to this country as a nonimmigrant. Matter of Khan, 14 I&N Dec. 122 (BIA 1972), aff'd sub nom. Santiago v. INS, 526 F.2d 488 (9th Cir. 1975), cert. denied, 425 U.S. 971 (1976), distinguished.


VALENCIA, 19 I&N Dec. 354 (BIA 1986)

ID 3006 (PDF)

Where the respondent presented a generalized statement on the Notice of Appeal (Form I-290A), failed to express the specific rational for his conclusory assertions, filed no separate written brief, and did not seek oral argument to further explain the alleged error, his appeal is summarily dismissed pursuant to 8 C.F.R. § 3.1(d)(1-a)(i) (1985) for failure to adequately specify the reasons for the appeal.


CARBALLE, 19 I&N Dec. 357 (BIA 1986)

ID 3007 (PDF)

(1) An alien is barred from the relief of withholding of deportation if he, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of theUnited States.

(2) Once a finding is made that an alien has been finally convicted of a particularly serious crime, it necessarily follows that the alien is a danger to the community of the United States.

(3) Because the proper focus is on the serious nature of the crime and not on the likelihood of future serious misconduct on the part of the alien, the contention that the statute requires twoseparate and distinct findings as to "seriousness of the crime" and "danger to the community" is rejected.

(4) If an applicant is statutorily ineligible for withholding of deportation because he is a danger to the community of the United States, having been finally convicted of an inherently particularlyserious crime, e.g., armed robbery, background evidence including the circumstances of the crime is not relevant to the determination of statutory eligibility.


SIEMENS MEDICAL SYSTEMS, INC., 19 I&N Dec. 362 (Comm. 1986)

ID 3008 (PDF)

(1) Where each of two corporations (parents) owns and controls 50 percent of a third corporation (joint venture), the joint venture is a subsidiary of each of the parents for purposes ofsection 101(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) (1982). Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982) clarified.

(2) Each parent, through ownership and control of 50 percent of the voting shares of the joint venture, has the power to prevent action by that company through exercise of its veto power;hence, each parent "negatively" controls that company.

(3) All agreements between the parents relating to voting of the shares, distribution of profits, management and direction of the subsidiary, and similar factors which affect actual control over50 percent of the subsidiary must be identified. Unless such agreements restrict the actual control of one parent, the 50-percent ownership will be deemed per se control.


AMORNVOOTISKUL, 19 I&N Dec. 366 (BIA 1986)

ID 3009 (PDF)

(1) Under the pertinent provisions of section 19 of the Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116, 95 Stat. 1611 [codified at 8 U.S.C. § 1151 (1982)], analien is not subject to the numerical limitations of the Act if he was present in the United States on or before June 1, 1978, and was qualified as a nonpreference immigrant under section203(a)(8) of the Act, 8 U.S.C. § 1153(a)(8) (1982); was exempt from the labor certification requirement of section 212(a)(14) of the Act, 8 U.S.C. § 1182(a)(14) (1982), as a qualifiedinvestor; and properly filed an application for adjustment of status to that of an alien lawfully admitted for permanent residence, which is still pending.

(2) Section 19 of the 1981 Amendments to the Act has been interpreted by the Immigration and Naturalization Service in its regulations to mean that an application for adjustment of status maybe approved after June 1, 1978, provided that the applicant has a priority date on or before June 1, 1978, and meets the other requirements of section 19.


TORRES, 19 I&N Dec. 371 (BIA 1986)

ID 3010 (PDF)

(1) In holding that an applicant for adjustment of status who is returning to the United States pursuant to a grant of advance parole under 8 C.F.R. § 212.5(d)(2) (1986) is properly placed inexclusion proceedings, the Board of Immigration Appeals specifically declined to follow Joshi v. District Director, INS, 720 F.2d 799 (4th Cir. 1983), and Patel v. Landon, 739 F.2d 1455 (9th Cir.1984), outside of the courts' respective circuits.

(2) The applicants, who no longer derive protection from the dissolved injunction in Silva v. Bell, 605 F.2d 978 (7th Cir. 1979), were properly placed in exclusion proceedings and, hence, were not entitled to apply for suspension of deportation.


VELASQUEZ, 19 I&N Dec. 377 (BIA 1986)

ID 3011 (PDF)

(1) There is a strong presumption that an attorney's decision to concede an alien's deportability in a motion for change of venue was a reasonable tactical decision, and, absent a showing ofegregious circumstances, such a concession is binding upon the alien as an admission.

(2) It is immaterial whether an alien actually authorized his attorney to concede deportability in a motion for change of venue, for so long as the motion was prepared and filed by an attorney ofrecord on behalf of his alien client, it is prima facie regarded as authorized by the alien and is admissible as evidence.

(3) An allegation that an attorney was authorized to represent an alien only to the extent necessary to secure a reduction in the amount of bond does not render inadmissible theattorney's concession of deportability in a pleading filed in regard to another matter, for there is no "limited" appearance of counsel in immigration proceedings.


AMERICAN PARALEGAL ACADEMY, INC., 19 I&N Dec. 386 (BIA 1986)

ID 3012 (PDF)

(1) "Nominal charges," as set forth in 8 C.F.R. § 292.2(a) (1986), are not defined in terms of specific dollar amounts but have been interpreted to mean a very small quantity or somethingexisting in name only as distinguished from something real or actual.

(2) The applicant, whose charges for services exceed amounts which can be construed as "nominal," may not rely upon the notion that its fees are substantially less than those charged bylaw firms or that its fees are one of the means by which it is able to fund itself.

(3) The applicant's detailed fee schedule and its statement that it will provide free services as funds become available from contributions suggest that payment is in fact a prerequisite toservice; therefore, the applicant's characterization of the amounts it requests in payment for services as "donations" is not persuasive in a determination of "nominal charges."

(4) "Nominal charges," as contemplated by 8 C.F.R. § 292.2(a) (1986), were not intended as a means by which those who are able to pay for assistance help offset the expenses of those whocannot.


A. DOW STEAM SPECIALITIES, LTD., 19 I&N Dec. 389 (Comm. 1986)

ID 3013 (PDF)

In occupational preference visa petition proceedings a petitioner, having no location in the United States, is not an employer and, therefore, cannot offer to permanently employ an alien inthe United States. Only a U.S.-based branch office, affiliate, or subsidiary of the foreign organization may file such a petition.


FAITH ASSEMBLY CHURCH, 19 I&N Dec. 391 (Comm. 1986)

ID 3014 (PDF)

(1) An alien classifiable as a special immigrant pursuant to section 101(a)(27)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27)(C)(i) (1982), may not be accordedSchedule A, Group III labor certification.

(2) Any minister, who for the previous 2 years has been or will be engaged in part-time ministerial employment involving more than 50 percent of his or her working time, may qualify forSchedule A, Group III labor certification but is precluded from special immigrant classification, which requires the minister to have been and intend to be engaged solely as a minister of areligious denomination.


PATEL, 19 I&N Dec. 394 (BIA 1986)

ID 3015 (PDF)

(1) The legitimate purpose recognized in Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977), of protecting the alien's right to appeal by avoiding a forced election between a grant of voluntary departure and the filing of an appeal is not served where, as here, the alien's appeal is determined to be frivolous or filed solely for the purpose of delay.

(2) To the extent that Matter of Chouliaris requires a further order granting voluntary departure in appeals determined to be frivolous or filed solely for the purpose of delay, it is disapproved and ismodified to preclude a further grant of voluntary departure where the original grant has expired.


MARTINEZ-ANGUIANO, 19 I&N Dec. 397 (BIA 1986)

ID 3016 (PDF)

(1) The Supreme Court's holding in INS v. Phinpathya, 464 U.S. 183 (1984), may be applied retroactively to cases pending at the time the Court rendered its decision.

(2) The Supreme Court held in INS v. Phinpathya that the continuous physical presence requirement of section 244(a) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a) (1982),must be literally construed and that any absence from the United States during the 7-year period, however brief, casual, or innocent, breaks the continuity of physical presence required forsuspension of deportation; therefore, the Court's decision is not limited to cases where the alien engaged in fraud in order to reenter the United States following a departure.


SILVER DRAGON CHINESE RESTAURANT, 19 I&N Dec. 401 (Comm. 1986)

ID 3017 (PDF)

(1) An occupational preference petition may be filed on behalf of a prospective employee who is a shareholder in the corporation. The prospective employee's interest in the corporation,however, is a material fact to be considered in determining whether the job being offered was really open to all qualified applicants.

(2) A shareholder's concealment, in labor certification proceedings, of his or her interest in the petitioning corporation constitutes willful misrepresentation of a material fact and is a ground forinvalidation of an approved labor certification under 20 C.F.R. § 656.30(d) (1986).


GARCIA-ALZUGARAY, 19 I&N Dec. 407 (BIA 1986)

ID 3018 (PDF)

(1) An alien conditionally admitted to the United States as a refugee under section 207 of the Immigration and Nationality Act, 8 U.S.C. § 1157 (1982), has not been paroled pursuant tosection 212(d)(5) of the Act, 8 U.S.C. § 1182(d)(5) (1982).

(2) The sole basis for terminating the status of an alien admitted to the United States as a refugee under section 207 of the Act is a determination that he was not a refugee within themeaning of section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (1982), at the time of his admission.

(3) Absent the proper termination of his status, an alien who has been admitted as a refugee under section 207 of the Act may not be placed in exclusion proceedings until there has been aprior determination that such alien is inadmissible, following his examination under oath by an immigration officer.


HARRY BAILEN BUILDERS, INC., 19 I&N Dec. 412 (Comm. 1986)

ID 3019 (PDF)

A labor certification issued by the Department of Labor applies only to a specific job opportunity. When the job offer is filled by the arrival of an alien or for any other reason, the job offer ceasesto exist. Therefore, an alien who abandons residence after being admitted for permanent residence to take up the certified job offer cannot use the same labor certification again.


GARCIA, 19 I&N Dec. 416 (BIA 1986)

ID 3020 (PDF)

(1) In order to accord preference status to the beneficiary as his unmarried son under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(2) (1982), a petitioner must establish that the beneficiary qualified as his "child" within the meaning of section 101(b)(1) of the Act, 8 U.S.C. § 1101(b)(1) (1982).

(2) Under the New Jersey Parentage Act, effective May 21, 1983, all children and parents have equal rights with respect to each other regardless of the marital status of the parents. N.J. Stat.Ann. §§ 9:17-38 to -59 (West 1983). Matter of Clarke, 18 I&N Dec. 369 (BIA 1983), modified.

(3) To qualify as a legitimated "child" under section 101(b)(1)(C) of the Act, a beneficiary must be under 21 years of age and must have been legitimated before reaching the age of 18 years.

(4) Where the petitioner seeks to establish that the beneficiary was legitimated under the New Jersey Parentage Act within the meaning of section 101(b)(1)(C) of the Act, he must prove thathe had a residence or domicile in New Jersey prior to the beneficiary's 18th birthday.


PRADIEU, 19 I&N Dec. 419 (BIA 1986)

ID 3021 (PDF)

Where a spouse visa petition is filed in the New York District Office of the Immigration and Naturalization Service, it must be adjudicated in compliance with the procedures set forth underthe final consent judgment entered in Stokes v. INS, No. 74 Civ. 1022 (S.D.N.Y. Nov. 10, 1976), regardless of whether the visa petition has been submitted individually or simultaneously filedwith an application for adjustment of status.


GARCIA-GARROCHO, 19 I&N Dec. 423 (BIA 1986)

ID 3022 (PDF)

(1) Section 243(h)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2)(B) (1982), provides that withholding of deportation shall not apply to analien who, having been convicted of a particularly serious crime, constitutes a danger to the community.

(2) A particularly serious crime is one that, by its nature, represents a danger to the community.

(3) Crimes that are inherently "particularly serious" satisfy, on their face, the requirements of the exclusionary bar under Section 243(h)(2)(B) of the Act.

(4) A New York State conviction for residential burglary in the first degree is per se a "particularly serious" crime because the statute involves one or more aggravating circumstances includingphysical injury or potentially life threatening acts.


ATEMBE, 19 I&N Dec. 427 (BIA 1986)

ID 3023 (PDF)

Notwithstanding the fact that an illegitimate child may qualify for immigration purposes as the "child" of his or her natural father following the amendment on November 6, 1986, of section101(b)(1)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(D) (1982), provided paternity is established and the father "has or had a bona fide parent-child relationship" with thechild, a visa petition filed prior to the effective date of the amendment may not be used to obtain preference status for the beneficiary under section 203(a) of the Act, 8 U.S.C. § 1153(a) (1982),because approval of the visa petition would give the beneficiary a priority date to which he or she was not entitled at the time the visa petition was filed. Matter of Drigo, 18 I&N Dec. 223 (BIA1982); and Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), followed.


NAFI, 19 I&N Dec. 430 (BIA 1987)

ID 3024 (PDF)

When an applicant for admission has notice of his exclusion hearing and fails to appear, the immigration judge may, in his discretion, find that the applicant has failed to establish hisadmissibility and has abandoned any application for asylum and order him excluded and deported.


PEREZ-ANDRADE, 19 I&N Dec. 433 (BIA 1987)

ID 3025 (PDF)

(1) A request for a continuance was properly denied by the immigration judge because the respondents did not show good cause for a continuance.

(2) A deportation hearing was properly held in absentia where the respondents, without reasonable cause, failed to appear for the hearing.

(3) In the absence of a brief in support of their appeal, a reasonable explanation for the respondents' failure to appear for the hearing or a demonstration that they were prejudiced in any manner, a summary dismissal of the appeal pursuant to 8 C.F.R. 3.1(d)(1-a)(iv) (1987) is appropriate.


LIN LEE, 19 I&N Dec. 435 (BIA 1987)

ID 3026 (PDF)

An extract of household registration records is acceptable evidence of family relationships in Taiwan.


TEKLAY, 19 I&N Dec. 437 (BIA 1987)

ID 3027 (PDF)

Orders of the Board of Immigration Appeals which provided that applications for legalization would have to be "filed within 30 days of the date designated by the Attorney General for the initialacceptance of applications" are clarified to provide that the 30-day filing period is only required as specifically mandated by the Immigration and Naturalization Service's final rules.


MOGARRABI, 19 I&N Dec. 439 (BIA 1987)

ID 3028 (PDF)

(1) In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), the United States Supreme Court held that the "clear probability" of persecution standard employed for withholding of deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h) (1982), does not converge with, and may not be equated with, the "well-founded fear" of persecution standard used for asylum under section 208, 8 U.S.C. § 1158 (1982). Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), is therefore overruled insofar as it held that the two standards were not meaningfullydifferent, and in practical application converged.

(2) The well-founded fear of persecution standard used in section 208 of the Act is significantly different from the clear probability standard used in section 243(h).

(3) An applicant for asylum under section 208 of the Act has established a well-founded fear if a reasonable person in his circumstances would fear persecution.

(4) A reasonable person may well fear persecution even where its likelihood is significantly less than clearly probable.

(5) An alien's own testimony in an asylum case may be sufficient, without corroborative evidence, to prove a well-founded fear of persecution where that testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fear.

(6) Matter of Acosta's requirement that an applicant for asylum show, inter alia, that the potential persecutor "could easily become aware" that the applicant possesses a belief or characteristic the persecutor seeks to overcome by some punishment is changed by omitting the word "easily."


ESTIME, 19 I&N Dec. 450 (BIA 1987)

ID 3029 (PDF)

(1) Pursuant to section 205 of the Immigration and Nationality Act, 8 U.S.C. § 1155 (1982), a notice of intention to revoke approval of a visa petition is not properly issued unless there is"good and sufficient cause" and the notice includes a specific statement not only of the facts underlying the proposed action, but also of the supporting evidence.

(2) "Good and sufficient cause" for issuing such a notice exists when the evidence of record at the time of issuance, if unexplained and unrebutted, would warrant a denial.

(3) There is "good and sufficient cause" within the meaning of section 205 of the Act to revoke approval of a visa petition if the evidence of record at the time of the decision, including anyexplanation or rebuttal submitted by the petitioner, warrants a denial based on the petitioner's failure to meet his or her burden of proof.

(4) A decision to revoke approval of a visa petition will not be sustained where the notice of intention to revoke was not properly issued.

(5) A decision to revoke approval of a visa petition will be sustained where a petitioner fails to make a timely explanation or submission of evidence to the Immigration and NaturalizationService after receipt of a properly issued notice of intention to revoke.


HOSSEINIAN, 19 I&N Dec. 453 (BIA 1987)

ID 3030 (PDF)

A foreign divorce is not recognized as valid under California law if both parties to the marriage were domiciled in California at the time the divorce proceeding was commenced. Matter of Kurtin, 12 I&N Dec. 284 (BIA 1967), overruled.


AURELIO, 19 I&N Dec. 458 (BIA 1987)

ID 3031 (PDF)

(1) The immigration judges and the Board lack jurisdiction in exclusion and deportation proceedings to review a decision by the district director that revocation of a visa petition pursuantto 8 C.F.R. § 205.1(a)(3) (1987) is appropriate following the death of the petitioner.

(2) An application for a waiver of inadmissibility under section 212(k) of the Immigration and Nationality Act, 8 U.S.C. § 1182(k) (1982), may be adjudicated by an immigration judge inexclusion proceedings under 8 C.F.R. § 212.10 (1987) without adjournment of the proceedings for consideration of the application by the district director.

(3) A waiver of inadmissibility under section 212(k) of the Act was properly denied where the applicant knew about her father's death prior to issuance of her visa and failed to exercisereasonable diligence in ascertaining its effect on her immigration status.


TOMAS, 19 I&N Dec. 464 (BIA 1987)

ID 3032 (PDF)

(1) The respondents, who have the burden of showing a well-founded fear of persecution to qualify for asylum or withholding of deportation, must be given a reasonable opportunity topresent evidence on their own behalf, including their testimony.

(2) Where the respondents cannot speak English fluently, the presence of a competent interpreter is essential for their meaningful participation in certain phases of the hearing and toinsure the fundamental fairness of the proceedings.

(3) A remand is ordered by the Board of Immigration Appeals for the purpose of conducting a new hearing and obtaining the services of a professional interpreter fluent in the Kanjoballanguage of Guatemala where the respondents, who spoke no English and little or no Spanish, could not adequately present their case through a Spanish interpreter.


PULA, 19 I&N Dec. 467 (BIA 1987)

ID 3033 (PDF)

(1) An alien's manner of entry or attempted entry is a proper and relevant discretionary factor to consider in adjudicating asylum applications.

(2) The circumvention of orderly refugee procedures can be a serious adverse factor in determining whether to grant asylum; however, it should not be considered in such a way thatthe practical effect is to deny relief in all cases.

(3) The circumvention of the immigration laws is only one of a number of factors which should be balanced in exercising discretion, and the weight accorded to this factor may vary dependingon the facts of a particular case.

(4) The circumvention of orderly refugee procedures alone is insufficient to require the most unusual showing of countervailing equities. Matter of Salim, 18 I&N Dec. 311 (BIA 1982)modified.


EGBUNINE, 19 I&N Dec. 478 (BIA 1987)

ID 3034 (PDF)

(1) Pursuant to sections 245(e)(1) and (2) of the Immigration and Nationality Act, 8 U.S.C. § 1255(e)(1) and (2) (Supp. IV 1986), an alien may not adjust his status if he seeks to receive animmigrant visa on the basis of a marriage which was entered into while the alien is facing administrative or judicial proceedings regarding his right to enter or remain in the United States.

(2) At a minimum, administrative proceedings begin with the filing of an Order to Show Cause and Notice of Hearing (Form I-221) with the Office of the Immigration Judge.

(3) Under section 204(h) of the Act, 8 U.S.C. § 1154(h) (Supp. IV 1986), an alien may not be granted immediate relative status by reason of a marriage which was entered into while the alienis facing administrative or judicial proceedings regarding his right to enter or remain in the United States, unless the alien resides outside of the United States for a 2-year period beginning afterthe date of the marriage.

(4) An application for a waiver of excludability should not be submitted by an alien subject to the 2-year residence requirement under section 204(h) of the Act, until the respondent becomeseligible for immediate relative status.


DIAL AUTO REPAIR SHOP, INC., 19 I&N Dec. 481 (Comm. 1987)

ID 3035 (PDF)

(1) In a third- or sixth-preference visa petition involving an individual labor certification, successorship in interest will be recognized only where the Department of Labor has formallyacknowledged the continuing validity of the certification for the employment proposed by the successor entity.

(2) Where a successorship in interest is recognized, the petitioner bears the burden of proof to establish eligibility in all respects as of the date the application for labor certification as originallyaccepted for processing by the Department of Labor.


BATTISTA, 19 I&N Dec. 484 (BIA 1987)

ID 3036 (PDF)

(1) The immigration judge erred in denying the respondent's application for adjustment of status on the ground that he had a preconceived intent to remain in the United States at the time of hisentry as a nonimmigrant where the respondent was eligible for an immigrant visa and his uncontroverted testimony was that he had only intended to visit his family in this country for ashort period at the time of his arrival.

(2) The immigration judge also erred by not weighing the respondent's significant family ties since preconceived intent is only one factor to be considered in the exercise of administrativediscretion.

(3) In accordance with an interim rule promulgated by the Immigration and Naturalization Service, the Board of Immigration Appeals will limit its application of the bar of section 245(c)(2)of the Immigration and Nationality Act, 8 U.S.C. § 1255(c)(2) (1982), as amended by the Immigration Reform and Control Act of 1986, which precludes adjustment of status to any alien,other than an immediate relative, who is not in legal status on the date of filing, to aliens who filed adjustment applications on or after November 6, 1986.


ANDRADE, 19 I&N Dec. 488 (BIA 1987)

ID 3037 (PDF)

(1) In bond redetermination proceedings, the Board of Immigration Appeals may consider the respondent's extensive and recent criminal record in determining the necessity for a bond or theappropriate amount of a bond.

(2) The Board determined that the respondent's numerous convictions indicate a consistent disrespect for the laws of the United States and adversely reflect upon his character.

(3) In setting a substantial bond, the Board took into consideration the respondent's disrespect for the law, his poor character, and the effect of his crimes upon his eligibility for relief fromdeportation.

(4) An alien's early release from prison and transition to a parole status do not necessarily reflect rehabilitation, and, therefore, such facts do not carry significant weight in determiningwhether he is a good bail risk for immigration purposes.


DUCKETT, 19 I&N Dec. 493 (BIA 1987)

ID 3038 (PDF)

A Canadian citizen railroad clerk employed by a Canadian railroad who seeks to enter the United States on a daily basis for a portion of his shift in order to clear his employer's railroadcars for transport from the United States to Canada is admissible to the United States as a visitor for business under section 101(a)(15)(B) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(15)(B) (1982), as the function he performs is a necessary incident to international trade or commerce. Matter of L-, 3 I&N Dec. 857 (C.O., BIA 1950), distinguished.


LODGE, 19 I&N Dec. 500 (BIA 1987)

ID 3039 (PDF)

(1) Oral argument is heard at the discretion of the Board of Immigration Appeals and will not be granted unless the party appealing has specified the reasons for the appeal in some meaningful fashion.

(2) The appealing party is not relieved of the responsibility for meaningfully informing the Board of the reasons for the appeal simply by requesting oral argument in the Notice of Appeal (FormI-290A).

(3) Where the Notice of Appeal is conclusory and does not meaningfully apprise the Board of the issues on appeal, the appeal may be summarily dismissed under 8 C.F.R. § 3.1(d)(1-a)(i)(1987) even in cases where oral argument has been requested.


A-G-, 19 I&N Dec. 502 (BIA 1987)

ID 3040 (PDF)

(1) The respondent's government has the same right as other governments to require military service and to enforce that requirement with reasonable penalities; and, therefore, the exerciseof that sovereign right does not constitute persecution.

(2) Persecution for failure to serve in the military may be established in those rare cases wherea disproportionately severe punishment would result on account of one of the five groundsenumerated in section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1982), or where the alien, as a result of military service required by hisgovernment, would necessarily be required to engage in inhuman conduct condemned by the international community as contrary to the basic rules of human conduct.

(3) The case of Matter of Salim, 18 I&N Dec. 311 (BIA 1982), is distinguishable from the present case because the claimant in that case was refusing to serve, not in an army controlled by hisown government, but in one which was "under Soviet command."


MALDONADO-CRUZ, 19 I&N Dec. 509 (BIA 1988)

ID 3041 (PDF)

(1) A threat to harm or kill a deserter from a guerrilla organization operating in a country does not constitute persecution under the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102.(2) In analyzing a claim of persecution made in the context of a civil war, it is necessary to examine the motivation of the group threatening harm.

(3) The threat to harm a deserter from the guerrilla organization is part of a military policy of that group, inherent in the nature of the organization, and a tool of discipline; thus, the threat is neitheran act of persecution nor evidence of persecution by the guerrilla organization on account of political opinion, or any other ground set forth in the Refugee Act of 1980.

(4) The holding of Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984), is not applied outside of the Ninth Circuit.

(5) It is not persecution for the government of a country to investigate and detain individuals suspected of aiding or being a member of a guerrilla organization.


OBAIGBENA, 19 I&N Dec. 533 (BIA 1988)

ID 3042 (PDF)

(1) A petitioner must be afforded a reasonable opportunity to rebut the derogatory evidence cited in a notice of intention to deny his visa petition and to present evidence in his behalf before the district director's decision is rendered.

(2) Reasonable and timely requests for an extension of time tosubmit a rebuttal to the notice of intention to deny a visa petition should be dealt with by the district director in a reasonable andfair manner, particularly when a petition has been pending for a prolonged period or where the notice of intention to deny contains extensive investigative findings or factual allegations.

(3) To be considered "reasonable," a request for an extension of time to submit a rebuttal must state with specificity the reasons for the request and be limited to a finite period, and it must notbe for the purpose of obtaining documents which should have initially been submitted with the petition by regulation.

(4) Where a petitioner fails to timely and substantively respond to the notice of intention to deny or to make a reasonable request for an extension, the Board of Immigration Appeals will notconsider any evidence first proffered on appeal as its review is limited to the record of proceeding before the district director; for further consideration, a new visa petition must be filed.


NOLAN, 19 I&N Dec. 539 (BIA 1988)

ID 3043 (PDF)

(1) The pardon issued automatically to the respondent as a first felony offender pursuant to Article 4, section 5(E)(1) of the Constitution of the State of Louisiana of 1974 upon completion of his sentence does not satisfy the requirements of section 241(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1251(b)(1) (1982), and therefore does not excuse deportability under section 241(a)(4) of the Act, because the pardon is neither full nor unconditional and because it was not issued by the Governor or an otherwise constitutionally-recognized executive body of Louisiana.

(2) The availability or unavailability of a pardon under state or federal law, or the existence or nonexistence of a qualifying pardoning authority, is not determinative of whether an offenseconstitutes a "crime" within the ambit of section 241(a)(4) of the Act. Matter of Cevallos, 12 I&N Dec. 750 (BIA 1968), overruled.


OZKOK, 19 I&N Dec. 546 (BIA 1988)

ID 3044 (PDF)

(1) A conviction exists for immigration purposes where an alien has had a formal judgment of guilt entered by a court or, if adjudication of guilt has been withheld, where all of the followingelements are present: (1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty, (2) thejudge has ordered some form of punishment, penalty, or restraint on the person's liberty to be imposed, and (3) a judgment or adjudication of guilt may be entered if the person violates theterms of his probation or fails to comply with the requirements of the court's order, without availability of further proceedings regarding his guilt or innocence of the original charge. Matter ofGarcia, 19 I&N Dec. 270 (BIA 1985); Matter of Zangwill, 18 I&N Dec. 22 (BIA 1981); Matter of Seda, 17 I&N Dec. 550 (BIA 1980); Matter of Robinson, 16 I&N Dec. 762 (BIA 1979); Matter ofVaragianis, 16 I&N Dec. 48 (BIA 1976); Matter of Pikkarainen, 10 I&N Dec. 401 (BIA 1963); and Matter of L-R-, 8 I&N Dec. 269 (BIA 1959), overruled in part.

(2) A conviction for a crime involving moral turpitude may not support an order of deportation if it has been expunged. Matter of Gutnick, 13 I&N Dec. 672 (BIA 1971); Matter of Ibarra-Obando, 12 I&N Dec. 576 (BIA 1966; A.G. 1967); Matter of G-, 9 I&N Dec. 159 (BIA 1960; A.G. 1961), followed.

(3) A conviction for a narcotics or marihuana violation is final regardless of the possibility of expunction. Matter of A-F-, 8 I&N Dec. 429 (BIA, A.G. 1959), followed.

(4) The respondent, whose adjudication of guilt was stayed and whose proceedings were deferred after his plea of guilty to possession of cocaine and who was ordered to complete 3 years of probation and 100 hours of volunteer community service pursuant to a state statute which allowed the court to enter judgment and proceed with disposition of the person upon viola-tion of probation as if probation had not been ordered, has a final conviction sufficient to support an order of deportation under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C.§ 1251(a)(11) (1982).


ENRIQUEZ, 19 I&N Dec. 554 (BIA 1988)

ID 3045 (PDF)

(1) The interpretation that administrative proceedings are still "pending," as that term is used in subsection 245(e)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1255(e)(2) (Supp. IV 1986), until the respondent's departure from the United States, furthers the objective of the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, which is to ensure that immigration benefits are not obtained through marriage fraud.

(2) A respondent in deportation proceedings is not eligible for adjustment of status under section 245(a) of the Immigration and Nationality Act if his marriage to a United States citizen occurs after an administratively final deportation order has been issued by the immigration judge, but before his deportation has been effected.


MICHAEL HERTZ ASSOCIATES, 19 I&N Dec. 558 (Comm. 1988)

ID 3046 (PDF)

An industrial designer who has a baccalaureate degree in industrial design from an accredited college or university in the United States or a degree from a foreign college or university which is evaluated as equivalent to the United States degree is a member of the professions within the meaning of section 101(a)(32) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(32)(1982), and is eligible for classification as a person of distinguished merit and ability pursuant to section 101(a)(15)(H)(i) if the job offered requires such a professional. Matter of Huckenbeck, 13 I&N Dec. 118 (R.C. 1969), overruled.


GUTIERREZ, 19 I&N Dec. 562 (BIA 1988)

ID 3047 (PDF)

(1) An immigration judge may permit an alien in exclusion proceedings to withdraw his application for admission; however, an alien may not be permitted to withdraw his application for admission unless he satisfies the immigration judge that factors directly relating to the issue of his admissibility indicate that "justice may best be served" by permitting withdrawal and that he possesses both the intent and the means to depart immediately from the United States.

(2) A balancing of the equities test is not an appropriate method by which to determine whether an alien merits permission to withdraw an application for admission.

(3) It was never contemplated that the withdrawal of an application for admission would become a nonstatutory form of "relief" from excludability which an applicant could apply for after excludability became apparent.

(4) Once the exclusion hearing has been conducted and the issues of excludability have been resolved, such permission should ordinarily only be granted with the concurrence of the Service.


HILAIRE, 19 I&N Dec. 566 (BIA 1988)

ID 3048 (PDF)

A petitioner may submit a certified copy of a document in support of a visa petition in accordance with 8 C.F.R. § 204.2(j)(l) (1988); however, if the Immigration and Naturalization Service requests the original document in order to determine that document's authenticity, the petitioner must comply with that request under 8 C.F.R. § 204.2(j)(3) (1988).


ARIAS, 19 I&N Dec. 568 (BIA 1988)

ID 3049 (PDF)

(1) A decision to revoke approval of a visa petition can only be grounded upon, and the petitioner is only obliged to respond to, the factual allegations specified in the notice of intention to revoke.

(2) Observations of the consular officer that are conclusory, speculative, equivocal, or irrelevant to the bona fides of the claimed relationship between the petitioner and the beneficiary do not provide "good and sufficient cause" for the issuance of a notice of intention to revoke approval of a visa petition and cannot serve as the basis for revocation, notwithstanding the petitioner's failure to timely respond to the notice of intention to revoke.


VIGIL, 19 I&N Dec. 572 (BIA 1987)

ID 3050 (PDF)

(1) The group of young, male, urban, unenlisted Salvadorans does not constitute a "particular social group" within the meaning of sections 101(a)(42)(A) and 243(h)of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42)(A) and 1253(h) (1982).

(2) An alien who merely testifies at his deportation hearing that he wishes to remain neutral in the midst of the civil conflict in his native country does not thereby establish a well-founded fear of persecution on account of a political opinion pursuant to section 208(a) of the Act, 8 U.S.C. §1158(a) (1982).

(3) The forcible recruitment of young males by a guerrilla organization does not constitute persecution within the meaning of the Act.

(4) A sovereign government does not engage in persecution when it drafts its citizens in order to raise an army and protect the country.

(5) An alien's testimony that he fears persecution in his native country because he applied for asylum in the United States is insufficient to establish eligibility for asylum under section 208(a) of the Act, where the alien has not shown that persons in his native country are harmed because they applied for asylum here.

(6) An immigration judge is not required to make credibility findings in every case.

(7) An immigration judge is required to admit the Department of State Bureau of Human Rights and Humanitarian Affairs advisory opinion into evidence in an asylum case, pursuant to 8 C.F.R. § 208.10(b) (1988).

(8) Evidence of conditions in an alien's native country is admissible in support of an asylum application, but the ultimate test for asylum eligibility is whether the particular alien has good reasons to fear persecution.


HO, 19 I&N Dec. 582 (BIA 1988)

ID 3051 (PDF)

(1) The petitioner bears the burden in visa petition revocation proceedings of establishing that the beneficiary qualifies for the benefit sought under the immigration laws. Matter of Cheung, 12 I&N Dec. 715 (BIA 1968), reaffirmed.

(2) Approval of a visa petition vests no rights in the beneficiary of the petition but is only a preliminary step in the visa or adjustment of status application process, and the beneficiary is not, by mere approval of the petition, entitled to an immigrant visa or to adjustment of status.

(3) The realization by the district director that he made an error in judgment in initially approving a visa petition may, in and of itself, be good and sufficient cause for revoking the approval, provided the district director's revised opinion is supported by the record.

(4) Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.

(5) Evidence serving as the basis of a notice of intention to revoke approval of a visa petition need not have been previously unavailable or undiscoverable.

(6) It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice.


CHURCH SCIENTOLOGY INTERNATIONAL, 19 I&N Dec. 593 (Comm. 1988)

ID 3052 (PDF)

(1) A person seeking a Schedule A, Group IV, labor certification must meet all eligibility requirements for "L-1" classification as a manager or executive, including those relating to a qualifying relationship between the entities for which the person has been and would be employed.

(2) In view of congressional intent that the "L-1" provisions be used for personnel transferred by international businesses, any religious personnel who are able to meet all the same "L-1"requirements which apply to business or other personnel may be granted "L-1" visas or Schedule A, Group IV, labor certifications.

(3) Ownership and control are the factors for establishing a qualifying relationship between entities for purposes of "L-1" classification.

(4) Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control.

(5) Control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity.


BALIBUNDI, 19 I&N Dec. 606 (BIA 1988)

ID 3053 (PDF)

(1) When a hearing is scheduled to consider an application for relief by a respondent and the respondent fails to appear at the hearing, the application should be deemed abandoned.

(2) As the regulations specifically require that an applicant be examined in person prior to the adjudication of his applications for asylum and withholding of deportation, his applications should not be considered on the merits upon his failure to appear at his hearing.


BARCENAS, 19 I&N Dec. 609 (BIA 1988)

ID 3054 (PDF)

(1) An alien who raises the claim questioning the legality of evidence must come forward with proof establishing a prima facie case before the Immigration and Naturalization Service will be called upon to assume the burden of justifying the manner in which it obtained evidence. Matter of Burgos, 15 I&N Dec. 278 (BIA 1975), followed.

(2) Where an alien wishes to challenge the admissibility of a document, the mere offering of an affidavit is not sufficient to sustain his burden.

(3) If the affidavit is such that the facts alleged, if true, could support a basis for excluding the evidence, then the claims must also be supported by testimony.


HERNANDEZ-PONCE, , 19 I&N Dec. 613 (BIA 1988)

ID 3055 (PDF)

(1) The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, amended sections 241(a)(11) and 212(a)(23) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(11) and 1182(a)(23) (1982), and significantly broadened the types of drug offenses which render an alien deportable or excludable.

(2) Section 241(a)(11) of the Act, which previously rendered deportable only those aliens convicted of illicit possession of or traffic in narcotic drugs or marihuana, now refers to "any law or regulation" relating to a controlled substance; and therefore, the immigration judge properly found deportable an alien twice convicted of the crime of use and being under the influence of phencyclidine ("PCP"), a controlled substance.

(3) The Board's construction of the former statute, which distinguished a conviction for unlawful use of a proscribed drug from a conviction for its unlawful possession, was based on the clearly different language of the former statute and is clearly incompatible with the plain meaning of the amended statute. Matter of Sum, 13 I&N Dec. 569 (BIA 1970), superseded.


AWWAL, 19 I&N Dec. 617 (BIA 1988)

ID 3056 (PDF)

(1) A steprelationship under section 101(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(B) (1982), must be based on a marriage that was at some point a valid one.

(2) A sham marriage is invalid from its inception and cannot under any circumstances be the basis of a steprelationship under section 101(b)(1)(B) of the Act.

(3) Even where there is an ongoing actual family relationship between a stepparent and a stepchild, that relationship cannot be recognized under section 101(b)(1)(B) of the Act where the marriage creating the steprelationship was a sham. Matter of Teng, 15 I&N Dec. 516 (BIA 1975), clarified.


BADALAMENTI, 19 I&N Dec. 623 (BIA 1988)

ID 3057 (PDF)

(1) An alien who is extradited to the United States and paroled for the purpose of prosecution does not automatically become an applicant for admission upon termination of parole.

(2) If the parole of an alien who has been extradited to the United States is terminated, he must be given a reasonable opportunity to depart unless there is evidence that he is an applicant for admission.

(3) An extradited alien's failure to depart from the United States within the 7 days granted by the district director does not by itself establish that the alien is an applicant for admission.

(4) Where an alien who is extradited to the United States denies that he is an applicant for admission, claims that he made every effort to depart within the time granted by the district director, and contends that the Government impeded his efforts to depart, the record will be remanded to the immigration judge to allow the alien to submit evidence regarding these matters.

(5) If upon remand it is established that the Government impeded the alien's efforts to depart, such evidence shall weigh against a finding that he was given a fair and reasonable opportunity to depart.


BUSCEMI, 19 I&N Dec. 628 (BIA 1988)

ID 3058 (PDF)

(1) One or more of the adverse discretionary factors noted in Matter of Marin, 16 I&N Dec. 581 (BIA 1978), may ultimately be determinative of whether section 212(c) relief is granted in an individual case.

(2) The necessity of demonstrating unusual or outstanding equities as part of an application for section 212(c) relief is not exclusively triggered by serious crimes involving controlled substances, such as the trafficking or sale of drugs, but rather, the gravity of the offense, per se, must be examined.

(3) The need to show unusual or outstanding equities in a section 212(c) case may be mandated because of a single serious crime or because of a succession of criminal acts which together establish a pattern of serious criminal misconduct.

(4) An alien who demonstrates unusual or outstanding equities, as may be required in a section 212(c) matter, merely satisfies the threshhold test for having a favorable exercise of discretion considered in his case; such a showing does not compel that discretion be exercised in his favor. Matter of Marin, supra, clarified.

(5) Rehabilitation is one of the favorable considerations in the discretionary evaluation with respect to section 212(c) relief; and, in fact, an applicant for relief with a criminal record will ordinarily be required to make a showing of rehabilitation before relief will be considered as a matter of discretion. Matter of Marin, supra, clarified.

(6) Notwithstanding the presence of an unusual or outstanding equity, the Board of Immigration Appeals denied section 212(c) relief in the exercise of discretion, because of the serious nature of the alien's criminal convictions and his failure to establish rehabilitation.


LOZADA, 19 I&N Dec. 637 (BIA 1988)

ID 3059 (PDF)

(1) A motion to reopen or reconsider based upon a claim of ineffective assistance of counsel requires (1) that the motion be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not.

(2) An alien deportable under section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4) (1982), is ineligible for voluntary departure unless he qualifies under the provisions of section 244(a)(2) of the Act, 8 U.S.C. § 1254(a)(2) (1982), which in the case of criminal offenders requires, inter alia, that the alien have been physically present in the United States and a person of good moral character for a continuous period of not less than 10 years following the date of his conviction. Matter of P-, 6 I&N Dec. 788 (BIA 1955), followed.


HAIM, 19 I&N Dec. 641 (BIA 1988)

ID 3060 (PDF)

(1) Where an immigration judge conducts an exclusion or deportation hearing in absentia, an alien can move to have the immigration judge reopen the proceedings when the cause of the alien's failure to appear relates to facts not before the immigration judge at the time of his decision.

(2) When the basis for a motion to reopen is that the immigration judge held an in absentia hearing, the alien must establish that he had "reasonable cause" for his absence from the proceedings.

(3) A party seeking to reopen the proceedings must state the new facts which he intends to establish, supported by affidavits or other evidentiary material.

(4) A motion to reopen proceedings will be granted if the alien had reasonable cause for his failure to appear.


VIZCAINO, 19 I&N Dec. 644 (BIA 1988)

ID 3061 (PDF)

(1) In order to qualify as an illegitimate son or daughter under section 203(a) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a) (1982), one must have once qualified as an illegitimate child under section 101(b)(1)(D) of the Act, 8 U.S.C. § 1101(b)(1)(D) (Supp. IV 1986).

(2) Section 101(b)(1)(D) of the Act, as amended by the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, is applicable to all visa petitions filed after the effective date of the amendment, even if the son or daughter was over 21 at the time the new law went into effect.

(3) Section 101(b)(1)(D) of the Act, as amended, is applicable to all immediate relative petitions filed and pending at the time the change in the statute went into effect.

(4) In all cases where immigration benefits are sought by virtue the relationship of an illegitimate son or daughter to his or her natural father, it must be shown that a "bona fide parent-child relationship" was established when the son or daughter was unmarried and under 21 years of age.

(5) Congress' expansion of section 101(b)(1)(D) to allow illegitimate children to receive or bestow immigration benefits through their natural fathers, provided a "bona fide parent-child relationship" is shown, was clearly intended as a generous provision, and it should be generously interpreted.

(6) In considering whether a "bona fide parent-child relationship" exists under section 101(b)(1)(D), the key is a genuine parent-child relationship in fact, not merely a tie by blood.

(7) To establish a "bona fide parent-child relationship," there should be a showing that the parties at some point actually lived together, or that the father held out the child as his own, or that he provided for some or all of the child's needs, or that in general the father's behavior evidenced genuine concern for and interest in the child.


CORNELL UNIVERSITY, 19 I&N Dec. 650 (Comm. 1987)

ID 3062 (PDF)

Regulations effective March 30, 1987, permit a total period of time in "H-1" classification of only 5 years or, in some extraordinary circumstances, up to a maximum of 6 years. Extraordinary circumstances exist, in the case of a plasma physicist who is a key member of a research team, where it is shown that denial of an extension of stay would result in serious hardship to the petitioner and to research projects of national significance in which the petitioner is involved under contract with United States Government agencies.


AMICO, 19 I&N Dec. 652 (BIA 1988)

ID 3063 (PDF)

(1) "Administrative closing" is merely an administrative convenience which allows the removal of cases from the calendar in certain situations, without the entry of a final order.

(2) Where, after several hearings and continuances, the respondent failed to appear at a rescheduled hearing to pursue an application for relief from deportation, the immigration judge should not have administratively closed the case, but rather should have held a hearing in absentia and entered a final order in the case.


ROSALES, 19 I&N Dec. 655 (BIA 1988)

ID 3064 (PDF)

(1) Where an attorney asks to withdraw from representation of an alien, his request for withdrawal should include evidence that he attempted to advise his client, at his last known address, of the date, time, and place of the scheduled hearing, and he should also provide the immigration judge with the alien's last known address, assuming it is more current than any address previously provided to the immigration judge.

(2) Unless these requirements are met, counsel's withdrawal should be only conditionally granted, that is, granted for all purposes except receipt of service of documents.


FUENTES, 19 I&N Dec. 658 (BIA 1988)

ID 3065 (PDF)

(1) Dangers which arise from the nature of employment as a policeman in an area of domestic unrest (e.g., attacks because they are viewed as extensions of a government's military forces) do not support a claim of a well-founded fear of "persecution" within the scope of section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1982).

(2) If policemen or guerrillas are considered to be victims of persecution based solely on an attack by one against the other, virtually all participants on either side of an armed struggle could be characterized as "persecutors" of the opposing side and would thereby be ineligible for asylum or withholding deportation.

(3) Status as a former policeman is an immutable characteristic, and mistreatment occurring because of such status in appropriate circumstances could be found to be persecution on account of political opinion or membership in a particular social group.

(4) Although an applicant for asylum, who claims he may be subject to persecution because of his status as a former policeman, need not establish the exact motivation of a "persecutor" where different reasons for actions are possible, he does bear the burden of establishing facts on which a reasonable person would fear that the danger arises on account of his race, religion, nationality, membership in a particular social group, or political opinion.

(5) Even if an asylum claim is assumed to be otherwise demonstrated, eligibility for asylum based on nongovernmental action may not be adequately established where the evidence of danger is directed to a very local area in the country of nationality.


JUAREZ, 19 I&N Dec. 664 (BIA 1988)

ID 3066 (PDF)

Except possibly under unusual circumstances not present here, a single conviction for a misdemeanor offense is not a "particularly serious crime" within the scope of section 243(h)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2)(B) (1982).


SANDOZ CROP PROTECTION CORPORATION, 19 I&N Dec. 666 (Comm. 1988)

ID 3067 (PDF)

(1) Specialized knowledge involves proprietary knowledge and an advanced level of expertise not readily available in the United States job market. This knowledge and expertise must be clearly different from those held by others employed in the same or similar occupations. Different procedures are not a proprietary right within this context unless the entire system and philosophy behind the procedures are clearly different from those of other firms, they are relatively complex, and they are protected from disclosure to competition.

(2) A petitioner's ownership of patented products or copyrighted works, in and of itself, does not establish that a particular employee has specialized knowledge. In order to qualify, the beneficiary must himself or herself be a key person with knowledge which is critical for performance of the job duties and which is protected from disclosure through patent, copyright, or company policy.


DANESH, 19 I&N Dec. 669 (BIA 1988)

ID 3068 (PDF)

An aggravated assault against a peace officer, which results in bodily harm to the victim and which involves knowledge by the offender that his force is directed to an officer who is performing an official duty, constitutes a crime involving moral turpitude. Matter of B-, 5 I&N Dec. 538 (BIA 1953), modified.


DIAZ-CHAMBROT, 19 I&N Dec. 674 (BIA 1988)

ID 3069 (PDF)

(1) The effective date of an alien's acquisition of lawful permanent resident status pursuant to section 1 of the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, is 30 months prior to his application for such adjustment of status, or the date of his last arrival in the United States, whichever date is later.

(2) In consideration of an application for a waiver of excludability under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1982), the Board of Immigration Appeals found the respondent statutorily eligible, concluding that the effective date of his acquisition of lawful permanent resident status was governed by the provisions of the Cuban Refugee Adjustment Act of November 2, 1966; in so holding, the Board modified its decision in Matter of Carrillo-Gutierrez, 16 I&N Dec. 429 (BIA 1977), to the extent that it had stated obiter dictum that the retroactivity provisions of the Cuban Refugee Adjustment Act applied solely to residency requirements for naturalization eligibility.


JALIL, 19 I&N Dec. 679 (Comm. 1988)

ID 3070 (PDF)

(1) For the purposes of a section 249 application for creation of record of admission, continuous residence is interrupted when an individual establishes an actual abode abroad, whether or not that individual maintains financial, property, and personal ties in the United States and asserts an intent to continue residence.

(2) It is the nature of the circumstances of the departure(s) which determines an interruption of continuous residence, not the number or duration of departures from the United States.


GONZALEZ, 19 I&N Dec. 682 (BIA 1988)

ID 3071 (PDF)

(1) An applicant in exclusion proceedings who has been convicted in a state court of possession of heroin with intent to deliver is statutorily ineligible for the relief of withholding of exclusion and deportation pursuant to section 243(h)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2) (1982), by virtue of having been convicted of a particularly serious crime.

(2) The Board of Immigration Appeals and immigration judges are not bound by the provisions of 8 C.F.R. § 208.8(f)(1)(iv) (1988) which precludes district directors of the Immigration and Naturalization Service from granting asylum to an alien who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.

(3) While the Board and immigration judges are not precluded from granting the relief of asylum to an alien who is barred from relief under section 243 (h)(2) of the Act as one who has been convicted of a particularly serious crime, we have, as a matter of practice, considered such a bar to be a controlling factor in determining whether an alien warrants a grant of asylum in the exercise of discretion.

(4) The Board now withdraws from the practice of pretermitting asylum applications when the statutory bar is applicable under section 243 (h)(2) of the Act and thus requires a full evidentiary hearing on the merits of the claim in order to determine if asylum should be granted in the exercise of discretion. Matter of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986); Matter of Carballe, 19 I&N Dec. 357 (BIA 1986); Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985); Matter of Salim, 18 I&N Dec. 311 (BIA 1982); Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982); Matter of Doural, 18 I&N Dec. 37 (BIA 1981); Matter of Ballester-Garcia, 17 I&N Dec. 592 (BIA 1980); and Matter of Rodriguez-Palma, 17 I&N Dec. 465 (BIA 1980), modified.


RIVERA, 19 I&N Dec. 688 (BIA 1988)

ID 3072 (PDF)

(1) The grant or denial of a change of venue motion is within the discretion of the immigration judge.

(2) Denial of the respondent's request to change venue from Puerto Rico, the place of his arrest, to New York, the place of his current residence, is upheld where the respondent has not shown how he would be prejudiced by holding the deportation hearing in Puerto Rico, and the Immigration and Naturalization Service could be prejudiced by changing venue, since the only witnesses to his contested unlawful entry were in Puerto Rico.


CASTRO, 19 I&N Dec. 692 (BIA 1988)

ID 3073 (PDF)

(1) In determining whether a conviction comes within the "petty offense" exception of section 212(a)(9) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9) (Supp. IV 1986), as amended by the Comprehensive Crime Control Act of October 12, 1984, Pub. L. No. 98-473, 98 Stat. 1837 (effective Nov. 1, 1987), the focus must be on the actual sentence imposed and not on what punishment an alien could have received under the applicable criminal statute.

(2) Where a criminal court suspends imposition of sentence, no sentence has been "actually imposed" for purposes of the exception in section 212(a)(9) of the Act.

(3) Where the criminal court convicted the respondent of a crime involving moral turpitude and sentenced him to 2 years' imprisonment but suspended execution of the sentence, the "sentence actually imposed" was 2 years' imprisonment and the respondent does not qualify for relief under the exception of section 212(a)(9) of the Act. Matter of Patel, 15 I&N Dec. 212 (BIA 1975); Matter of Piraino, 12 I&N Dec. 508 (BIA 1967); and Matter of T-, 8 I&N Dec. 4 (BIA 1956), distinguished.


CANAS, 19 I&N Dec. 697 (BIA 1988)

ID 3074 (PDF)

(1) Although it provides "significant guidance," the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, 1979) does not have the force of law with respect to the interpretation of the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268.

(2) Neither the terms of the Protocol nor the conduct of nations which are signatories to the Protocol is dispositive of the issue of whether conscientious objectors who come from countries with compulsory military service should be regarded as "refugees" under the Protocol.

(3) The Handbook suggests that nations may wish to extend protection to alien conscientious objectors consistent with developments in domestic laws, but this is a policy matter separate from the traditional issue of whether an alien is a "refugee" under the Protocol; such policy questions are outside the jurisdiction of the Board of Immigration Appeals.

(4) The motivation of an alleged persecutor is a relevant and proper consideration when analyzing an alien's eligibility for asylum under the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102.

(5) An alien must demonstrate that there is an objective basis for his fear in order to establish that he has a "well-founded fear of persecution" within the meaning of the Refugee Act.

(6) Absent a showing that his government enacted its conscription laws with the intent of persecuting members of a certain religion, or that the laws are carried out in a persecutorymanner against persons with particular religious beliefs, an alien with religious objections to military service does not establish eligibility for asylum although he may be prosecuted for a refusal to perform military service.


GRIJALVA, 19 I&N Dec. 713 (BIA 1988)

ID 3075 (PDF)

(1) An alien bears the burden of establishing eligibility for a waiver of deportation pursuant to section 241(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(f)(2) (1982), and of showing that he warrants a favorable exercise of discretion.

(2) Where the amount of marihuana that an alien has been convicted of possessing cannot be ascertained from the alien's conviction record, the alien must come forward with credible testimony or other evidence to meet his burden of proving that his conviction related to "30 grams or less of marihuana," and thereby satisfy one of the prerequisites for section 241(f)(2) relief.

(3) Hearsay evidence is admissible in deportation proceedings unless its use is fundamentally unfair to an alien.

(4) As provided by the regulations in 8 C.F.R. § 242.14(c) (1988), an immigration judge may receive into evidence any relevant and material statement made by an alien during a previous investigation.

(5) The admission into evidence of police reports concerning the circumstances of an alien's arrest is especially appropriate in cases involving discretionary relief from deportation, where all relevant factors regarding an alien's arrest and conviction should be considered.


PATRICK, 19 I&N Dec. 726 (BIA 1988)

ID 3076 (PDF)

(1) In order to obtain preference status for the beneficiary as his son under section 203(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1153(a)(1) (1988), a petitioner must establish that the beneficiary once qualified as his "child" within the meaning of section 101(b)(1) of the Act, 8 U.S.C. § 1101(b)(1).

(2) Under the law of New York, the father's residence and domicile, legitimation of a child born out of wedlock requires the marriage of the child's natural parents.

(3) By virtue of the Republic of Trinidad and Tobago Status of Children Act of 1981, enacted on March 1, 1983, all children born in or out of wedlock (after the effective date of the Act) have equal status under the laws of that country. Matter of Archer, 10 I&N Dec. 92 (BIA 1962), modified.

(4) A child who comes within the scope of the Republic of Trinidad and Tobago Status of Children Act is included within the definition of a legitimate or legitimated "child" as set forth in section 101(b)(1) of the Act if paternity is established and the person is under 21 years of age and the legitimation took place before the child reached the age of 18 years.


CESPEDES, 19 I&N Dec. 730 (BIA 1988)

ID 3077 (PDF)

(1) A record of proceeding forwarded to the Board without a transcript of the proceedings pursuant to a motion for summary dismissal of the appeal under Matter of Torre, 19 I&N Dec. 18 (BIA 1984), must include a transcript of the immigration judge's decision in its entirety; the forwarding of the "order" and "further order" portions of the immigration judge's decision alone is insufficient.

(2) The mere statement on a Notice of Appeal (Form I-290A) that a brief will be filed upon receipt of a transcript of the proceeding does not absolve the appealing party of the responsibility of adequately identifying the reasons for appeal on the Notice of Appeal.

(3) Where a motion for summary dismissal of an appeal has been made, the appellant can respond in various manners: (1) argument can be made that the statements in the Notice of Appeal adequately set forth the reasons for the appeal; (2) the statement on appeal can be elaborated upon to meaningfully identify the reasons for appeal; (3) a brief in support of the appeal can be submitted; or, (4) if there are unusual reasons why a more explicit statement of the reasons for appeal cannot be provided until a transcript is prepared, they should be clearly identified. (4) Absent a meaningful statement of the reasons for an appeal or an adequate explanation of why a transcript of the proceedings is necessary before such reasons can be set forth, there is no appropriate reason to extend appellate briefing time beyond the period fixed by regulation.


MEDINA, 19 I&N Dec. 734 (BIA 1988)

ID 3078 (PDF)

(1) Neither the Geneva Convention Relative to the Protection of Civilian Persons in Time of War nor customary international law creates a potential remedy from deportation that can be sought by individual aliens in deportation proceedings over and above that provided by the Immigration and Nationality Act, as implemented by regulation.

(2) Neither an immigration judge nor the Board of Immigration Appeals has authority to grant extended voluntary departure, deferred action, or withholding of deportation of displaced persons to "war refugees"; that is, individuals seeking refuge outside their country of origin because of war, who do not meet the refugee definition of section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (1982).


HUANG, 19 I&N Dec. 749 (BIA 1988)

ID 3079 (PDF)

(1) Where an applicant for admission to the United States has a colorable claim to returning resident status, the burden is on the Immigration and Naturalization Service to show by clear, unequivocal, and convincing evidence that the applicant should be deprived of his or her lawful permanent resident status.

(2) An alien acquires lawful permanent resident status at the time of his initial admission to the United States as a lawful permanent resident, as at that point he attains "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws," and is thus an alien "lawfully admitted for permanent residence" pursuant to section 101(a)(20) of the Act, 8 U.S.C. § 1101(a)(20) (1982).

(3) For purposes of determining whether the applicant has abandoned her lawful permanent resident status, an applicant's absence from the United States due to her husband's having a contract to work and study at a Japanese university cannot be said to be a temporary visit abroad fixed by some early event, where the record does not show a clear demarcation as to when her husband's relationship with the university would end.


N-, 19 I&N Dec. 760 (Comm. 1988)

ID 3080 (PDF)

(1) A student who acquired reinstatement by fraud, by not revealing his unauthorized employment, did not obtain lawful status.

(2) Such student's situation is analogous to that of an alien in the United States illegally who departed and was subsequently admitted to the United States as a nonimmigrant. The Service has held that such alien, if he can demonstrate he reentered to resume his unlawful residence, may qualify for legalization benefits.

(3) Acquisition of reinstatement by fraud renders an alien excludable pursuant to section 212(a)(19) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(19) (1982). A waiver of excludability is provided by 245A(d)(2)(B)(i) of the Act, 8 U.S.C. § 1255a(d)(2)(B)(i) (Supp. IV 1986), to assure family unity.


SORIANO, 19 I&N Dec. 764 (BIA 1988)

ID 3081 (PDF)

(1) Where a visa petition has once been denied based on a finding that the marriage was entered into solely to bestow an immigration benefit, the petitioner bears a heavy burden of proof with respect to any subsequently filed visa petition involving the same beneficiary.

(2) A petitioner may be put on notice of evidentiary requirements by means such as a requirement in the regulations that a particular document be submitted with the visa petition; a notice of intent to deny, letter, or form noting the deficiency or requesting additional evidence; or an oral statement at an interview that additional evidence is required.

(3) Where a visa petition is denied based on a deficiency of proof, the petitioner had not been put on notice of the deficiency and given a reasonable opportunity to address it before the denial, and on appeal the petitioner proffers additional evidence addressing the deficiency, the record will, in the ordinary course, be remanded to allow the Immigration and Naturalization Service to initially consider and address the new evidence.

(4) Where the petitioner was put on notice of the required evidence and given a reasonable opportunity to provide it for the record before the visa petition is adjudicated, evidence submitted on appeal will not be considered for any purpose, and the appeal will be adjudicated based on the record of proceedings before the Service.


IBERIA AIRLINES FLIGHT #IB 951, 19 I&N Dec. 768 (BIA 1988)

ID 3082 (PDF)

(1) Carriers subject to the requirements of section 271(a) of the Immigration and Nationality Act, 8 U.S.C. § 1321(a) (1982), fulfill their responsibilities under that section when they present their alien passengers for inspection at the place of arrival.

(2) The custody requirements of 8 C.F.R. § 235.3(d) only apply to carriers who have entered into a contract with the Attorney General under section 238 of the Act, 8 U.S.C. § 1228 (1982).


PATEL, 19 I&N Dec. 774 (BIA 1988)

ID 3083 (PDF)

(1) Section 204(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1154(a)(2)(A) (Supp. IV 1986), applies retroactively to a spousal second-preference petition which was pending adjudication when the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, became law.

(2) Section 204(a)(2)(A) of the Act sets forth a presumption of a fraudulent prior marriage in any visa petition in which fewer than 5 years will have elapsed between the time a petitioner acquired lawful permanent resident status based on that prior marriage and the time his visa petition for a subsequent spouse is adjudicated.

(3) In order to rebut the presumption of a fraudulent prior marriage set forth in section 204(a)(2)(A) of the Act, the petitioner has the burden of establishing by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading any provision of the immigration laws.

(4) The clear and convincing standard of proof, which requires more than the preponderance of the evidence standard but less than the beyond a reasonable doubt standard, is that degree of proof, though not necessarily conclusive, which will produce in the mind of the trier of fact a firm belief or conviction.

(5) The evidence submitted by a petitioner in an attempt to rebut the presumption of a fraudulent prior marriage set forth in section 204(a)(2)(A) of the Act should not be presumed to be false or contrived, but rather should receive the same fair and reasonable evaluation as that given to evidence in any other visa petition proceeding.

(6) Although a rapid sequence of events in a case arising under section 204(a)(2)(A) of the Act may suggest a lack of bona fide intent at the time of a petitioner's prior marriage, the sequence of events in the instant case was not so rapid as to indicate unequivocally a lack of bona fide intent, and the petitioner has provided evidence which adequately explains the sequence of events in this case.


COPELAND, 19 I&N Dec. 788 (BIA 1988)

ID 3084 (PDF)

(1) Section 315(b)(3) of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, 3439-40, is inapplicable in matters regarding an Application to Preserve Residence for Naturalization Purposes (Form N-470) pursuant to section 316(b) of the Immigration and Nationality Act, 8 U.S.C. § 1427 (1982).

(2) Any departure of an alien from the United States precludes establishment of an uninterrupted period of 1 year after lawful admission for permanent residence and therefore bars eligibility for preservation of residence pursuant to section 316(b) of the Act. Matter of Graves, 19 I&N Dec. 337 (Comm. 1985), followed.


CARON INTERNATIONAL, INC., 19 I&N Dec. 791 (Comm. 1988)

ID 3085 (PDF)

(1) In order to establish a person has preeminence in business, a petitioner must demonstrate that the person has skills and recognition in business substantially above that ordinarily encountered. The fact that a beneficiary is well known for achievements in his or her field is an important aspect of preeminence.

(2) Not every person who owns or manages a business or holds a high position in a business is considered preeminent. Success or outstanding performance in business alone is not the same as preeminence.

(3) General managerial occupations such as those of vice-president are normally not considered to be professional endeavors requiring specific academic degrees. A manager is not considered to be a member of the professions unless he or she is qualified for, and intends to work in, a professional occupation requiring the attainment of such a degree.

(4) Certain occupations may be in transition from nonprofessional to professional status. In such cases, employers may be able to establish a position is professional in nature by demonstrating that the higher standard of a specific baccalaureate-level degree has been consistently required for the more complex positions within their organizations.

(5) Substantial academic course work in a professional field combined with professional experience and achievement may be considered equivalent to a bachelor's degree. While there are a number of colleges and universities in the United States which give credit towards a degree based on experience, none will grant a baccalaureate degree based on a person's experience alone.

(6) The Immigration and Naturalization Service may, in its discretion, use as advisory opinions statements from universities, professional organizations, or other sources submitted in evidence as expert testimony. However, where an opinion is not in accord with other information or is in any way questionable, the Service is not required to accept or may give less weight to that evidence.


KAHY, 19 I&N Dec. 803 (BIA 1988)

ID 3086 (PDF)

(1) Section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (Supp. IV 1986), as amended by the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, applies to aliens who have conspired to enter into a fraudulent marriage or who have sought to obtain an immigration benefit based on a fraudulent marriage.

(2) Where the record contains evidence that a visa petition was previously filed seeking nonquota status for an alien based on a fraudulent marriage, the burden then shifts to the petitioner to prove that the alien did not seek to be accorded nonquota status based on the prior marriage. Section 204(c)(1) of the Act, 8 U.S.C. § 1154(c)(1) (Supp. IV 1986).

(3) A visa petition may be denied pursuant to section 204(c)(2) of the Act, 8 U.S.C. § 1154(c)(2) (Supp. IV 1986), where there is evidence in the record to indicate that an alien previously conspired to enter into a fraudulent marriage.


C-, 19 I&N Dec. 808 (Comm. 1988)

ID 3087 (PDF)

(1) A reason which "comes unexpectedly into being" is an "emergent reason" for the purpose of determining continuous residence under 8 C.F.R. § 245a.1(c)(1)(i) (1988).

(2) Notwithstanding an absence from the United States of 58 days, the applicant maintained continuous residence because she intended to return after 30 days, and her return was unexpectedly delayed by the failure of the postal service to timely deliver a letter containing the necessary travel funds.


RODRIGUEZ-MAJANO, 19 I&N Dec. 811 (BIA 1988)

ID 3088 (PDF)

(1) An alien who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion is barred from the relief of withholding of deportation pursuant to the provisions of section 243(h)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(2)(A) (1982), and from asylum pursuant to the provisions of section 101(a)(42)(B) of the Act, 8 U.S.C. § 1101(a)(42)(B) (1982).

(2) The participation or assistance of an alien in persecution need not be of his own volition to bar him from the relief of withholding of deportation and asylum.

(3) While membership in an organization, even one which engages in persecution, is not sufficient to bar one from the relief of withholding of deportation and asylum, if an alien's action or inaction furthers persecution in some way, he would be ineligible for relief.

(4) Activity related to a civil war or harm which may result from behavior directed toward the overthrow of a government or, alternatively, the defense of that government against an opponent, is not persecution unless it can be established that there is some degree of intent on the part of the persecutor to produce the harm that the applicant fears in order that the persecutor may overcome a belief or characteristic of the applicant.

(5) Regardless of whether the respondent aided the guerrillas voluntarily or not, the only harm or injury he may have inflicted arose as the natural consequence of civil strife and the harm resulting from such generalized civil strife is not persecution.


SEA, INC., 19 I&N Dec. 817 (Comm. 1988)

ID 3089 (PDF)

(1) Substantial academic course work in a professional field combined with professional experience and achievement may be considered equivalent to a bachelor's degree.

(2) Ordinary experience alone cannot be equated with a college degree.

(3) Experience which is substituted for education must include the theoretical and practical application of specialized knowledge required at the professional level of the occupation. It cannot be concluded that any on-the-job experience related to a professional activity may be substituted for academic education.


P-, 19 I&N Dec. 823 (Comm. 1988)

ID 3090 (PDF)

(1) An Application for a Waiver of Grounds of Excludability (Form I-690) pursuant to 8 C.F.R. §245a.2(k) (1988) should be adjudicated separately from an Application for Status as a Temporary Resident (Form I-687) under section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (Supp. IV 1986).

(2) A nonimmigrant alien whose unlawful status is known to the United States Government as of January 1, 1982, is eligible for temporary resident status under section 245A of the Act if otherwise qualified.

(3) A nonimmigrant alien who obtained a social security card, worked without authorization from the Immigration and Naturalization Service, and filed federal income tax returns prior to January 1, 1982, is an alien whose unlawful status as of January 1, 1982, is an alien whose unlawful status as of January 1, 1982, was known to the United States Government for purpose of eligibility under section 245A(a)(2) of the Act.

(4) A nonimmigrant alien who reentered the United States as a nonimmigrant visitor for pleasure subsequent to January 1, 1982, but with an intention to resume an unrelinquished unlawful residence, is an alien who has been continuously residing in the United States in an unlawful status for purpose of eligibility under section 245A(a)(2)(A) of the Act and 8 C.F.R. § 245a.2(b)(9) (1988).

(5) A nonimmigrant alien who reentered the United States subsequent to January 1, 1982, with an intention to resume an unrelinquished unlawful residence and who is an applicant for temporary resident status under section 245A of the Act is excludable pursuant to section 212(a)(19) of the Act, 8 U.S.C. § 1182(a)(19) (Supp. IV 1986), and 8 C.F.R. § 245a.2(b)(10) (1988).

(6) An alien who applies for temporary resident status under section 245A of the Act, but who is excludable on grounds which may be waived, must establish that the waiver should be granted for family unity, humanitarian reasons, or when it is otherwise in the public interest pursuant to section 245A(d)(2)(B)(i) of the Act and 8 C.F.R. § 245a.2(k)(2) (1988).

(7) For purposes of eligibility under section 245A of the Act, permissible waivers of excludability should be granted liberally.

(8) An alien who has contributed to a community financially by creating jobs and through public activities has established it would be in the public interest to grant his application for a waiver of grounds of excludability under section 245A(d)(2)(B)(i) of the Act and 8 C.F.R. § 245a.2(k)(2) (1988).


GARCIA-REYES, 19 I&N Dec. 830 (BIA 1988)

ID 3091 (PDF)

(1) An immigration judge should not grant, sua sponte, a 6-month continuance to enable a respondent to show rehabilitation where it had not been shown that he was eligible for any form of relief from deportation for which rehabilitation would be relevant.

(2) A deportation hearing should be recorded verbatim, except for certain off-the-record statements or where the immigration judge, in his discretion, excludes arguments relating to motions, applications, requests, or objections, in which case briefs may be submitted.

(3) Objections to rulings of the immigration judge should be made on the record, or they cannot be adequately preserved for appeal.


RIVERA-RIOSECO, 19 I&N Dec. 833 (BIA 1988)

ID 3092 (PDF)

(1) The effective date of an alien's acquisition of lawful permanent resident status pursuant to section 1 of the Cuban Refugee Adjustment Act of November 2, 1966, is 30 months prior to his application for such adjustment of status, or the date of his last arrival in the United States, whichever date is later.

(2) For purposes of relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1982), the date of acquisition of lawful unrelinquished domicile by an alien who had his status adjusted pursuant to section 1 of the Cuban Refugee Adjustment Act of November 2, 1966, is 30 months prior to his application for such adjustment of status, or the date of his last arrival in the United States, whichever date is later. Matter of Diaz-Chambrot, 19 I&N Dec. 674 (BIA 1988), followed.


BARRERA, 19 I&N Dec. 837 (BIA 1988)

ID 3093 (PDF)

(1) The applicant's motion to reopen exclusion proceedings is denied where prima facie eligibility for asylum has not been established, and the claim is virtually the same as that of the aliens in Matter of Leon-Orosco and Rodriguez-Colas, 19 I&N Dec. 136 (BIA 1983; A.G. 1984), as it relates to the fate of the Marielitos who were returned from the United States to Cuba.

(2) The situation faced by the Marielitos who attempted to leave Cuba is not materially comparable to that of the Marielitos who left as part of the boatlift; those Marielitos who attempted to leave Cuba were not recipients of the "no reprisal" assurances initially made by the Cuban Government in 1984 and reiterated in 1987.

(3) The Cuban Government's diplomatic assurances of "no reprisals," while not determinative, are meaningful evidence in the evaluation of an applicant's asylum claim.

(4) The Board of Immigration Appeals adopts the official position of the Department of State to the effect that the Cuban Government's actions are consistent with its diplomatic assurances that distinctions in treatment of Marielitos are based on an individual returnee's criminal activities in the United States and not on a returnee's participation in the boatlift or on his exclusion from the United States.

(5) The repatriation agreement entered into between the United States and Cuba has significant evidentiary weight where it represents formal, well-publicized diplomatic assurances by the Government of Cuba; where that government is aware of the impact on international opinion of failure to honor its obligations; and where there is no meaningful evidence of Cuban noncompliance with this agreement first entered into in 1984.


S-, 19 I&N Dec. 851 (Comm. 1988)

ID 3094 (PDF)

(1) An immigrant alien who entered the United States prior to January 1, 1982, is eligible for temporary resident status under section 245A of the Immigration and Nationality Act, 8 U.S.C. §1255a (Supp. IV 1986), if he can establish that he has been residing in the United States in anunlawful status since such date and is otherwise eligible under the statute.

(2) An immigrant alien who has been found deportable by an immigration judge on the grounds that his initial entry prior to January 1, 1982, was obtained by fraud, and who has been residing in the United States since such date, is an alien who has been residing in the United States in an unlawful status within the purview of section 245A(a)(2)(A) of the Act.

(3) An immigrant alien who entered the United States by fraud prior to January 1, 1982, must file an application for waiver of grounds of excludability in order to be eligible for temporary resident status under section 245A of the Act.


ROMAN, 19 I&N Dec. 855 (BIA 1988)

ID 3095 (PDF)

A respondent in deportation proceedings who was excludable under both sections 212(a)(17) and (20) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(17) and (20) (1982), cannot establish combined eligibility for nunc pro tunc permission to reapply for admission and a waiver of inadmissibility pursuant to section 241(f) of the Act, 8 U.S.C. § 1251(f) (1982), where she is not separately eligible for either form of relief.


M-, 19 I&N Dec. 861 (Comm. 1989)

ID 3096 (PDF)

(1) A conviction exists pursuant to section 245A(a)(4)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1255a(a)(4)(B) (Supp. IV 1986), where (1) a judge or a jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere, and (2) the judge has ordered some form of punishment or penalty, including but not limited to a fine or probation.

(2) An alien who pled guilty to a felony and, as a result, was fined $1,000 and placed on probation for 3 years is an alien who has been convicted of a felony within the purview of section 245A(a)(4)(B) of the Act.


A-, 19 I&N Dec. 867 (Comm. 1988)

ID 3097 (PDF)

(1) An applicant for temporary resident status under section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (Supp. IV 1986), who is found excludable and whose grounds of excludability can be waived must be advised by the Immigration and Naturalization Service that he can apply for a waiver of grounds of excludability.

(2) In determining whether an alien is likely to become a public charge under section 212(a)(15) of the Act, 8 U.S.C. § 1182(a)(15) (1982), the Service will consider the totality of the circumstances.

(3) A 33-year-old mother of three children, who is currently employed and is physically able to earn a living, is not likely to become a public charge, notwithstanding the fact that her family received public cash assistance for approximately 4 years.


O-, 19 I&N Dec. 871 (Comm. 1989)

ID 3098 (PDF)

(1) The Legalization Appeals Unit will sua sponte reopen or reconsider a decision under section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (Supp. IV 1986), when it determines that manifest injustice would occur if the prior decision were permitted to stand.

(2) A nonimmigrant exchange visitor is eligible for temporary resident status under section 245A of the Act if he establishes that he was not subject to the 2-year foreign residence requirement of section 212(e) of the Act, 8 U.S.C. § 1182(e) (1982), he fulfilled that requirement, or he received a waiver thereof.

(3) A finding that an applicant is subject to the 2-year foreign residence requirement of section 212(e) of the Act must be supported by the record because not all exchange visitors are subject to this requirement.


TIWARI, 19 I&N Dec. 875 (BIA 1989)

ID 3099 (PDF)

(1) Although the Immigration and Naturalization Service's burden is materially lessened when it submits evidence that an alien has been convicted of bringing other aliens into the United States in violation of section 274(a) of the Immigration and Nationality Act, 8 U.S.C. § 1324(a) (1988), the Service must still establish by clear, unequivocal, and convincing evidence that such an alien acted "for gain" in order to sustain a charge of deportability under section 241(a)(13) of the Act, 8 U.S.C. § 1251(a)(13) (1988).

(2) An inference may not be drawn to prove the "for gain" requirement in section 241(a)(13) of the Act and therefore, in the absence of clear evidence that the alien received remuneration in excess of his expenses or that he anticipated "gain" in exchange for his role in an alien-smuggling conspiracy, deportability is not established.

(3) The offense underlying a conviction under section 274(a) of the Act does not involve the element of fraud or evil intent and therefore the conviction does not render an alien deportable under section 241(a)(4) of the Act as an alien "convicted of a crime involving moral turpitude."


PAZANDEH, 19 I&N Dec. 884 (BIA 1989)

ID 3100 (PDF)

(1) In visa petition appeals involving section 204(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1154(a)(2)(A) (Supp. IV 1986), the Board will not review the issue of the bona fides of the petitioner's prior marriage if 5 years have elapsed since the petitioner obtained her lawful permanent residence.

(2) Where the visa petition was initially approvable subject to the petitioner's meeting a burden which has lapsed with the passage of time, the majority finds the rationale expressed in Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), not applicable. Matter of Atembe, 19 I&N Dec. 427 (BIA 1986); and Matter of Drigo, 18 I&N Dec. 223 (BIA 1982), distinguished.