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Volume 19
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Laureano, ID#2951, 19 I&N Dec. 1 (BIA 1983) (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 (3) Where a visa petition has once been withdrawn based on an admission by a party that the marriage was solely entered into to bestow an immigration benefit, any subsequently filed visa petition involving the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. |
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Cardoso, ID#2952, 19 I&N Dec. 5 (BIA 1983) (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. |
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Hernandez , ID#2953, 19 I&N Dec. 14 (BIA 1983) (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. |
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Torre, ID#2954, 19 I&N Dec. 18 (BIA 1984) (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. |
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Bennett, ID#2955, 19 I&N Dec. 21 (BIA 1984) (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). |
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Cherismo, ID#2956, 19 I&N Dec. 25 (BIA 1984) (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). |
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Mangaser, ID#2957, 19 I&N Dec. 28 (BIA 1984) 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. |
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Shirdel, ID#2958, 19 I&N Dec. 33 (BIA 1984) (1) Afghan nationals
who arrived in the United States with fraudulent Turkish passports as (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 for (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. |
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Breninzon, ID#2959, 19 I&N Dec. 40 (BIA 1984) (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. |
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Matti, ID#2960, 19 I&N Dec. 43 (BIA 1984) (1) The Board of Immigration
Appeals denied an application for a waiver of deportation under (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. |
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Kazemi, ID#2961, 19 I&N Dec. 49 (BIA 1984) (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. |
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Dilla, ID#2962, 19 I&N Dec. 54 (BIA 1984) 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. |
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Fedorenko, ID#2963, 19 I&N Dec. 57 (BIA 1984) (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. |
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Alejandro, ID#2964, 19 I&N Dec. 75 (BIA 1984) 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. |
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Carrillo, ID#2965, 19 I&N Dec. 77 (BIA 1984) 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. |
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Chu, ID#2966, 19 I&N Dec. 81 (BIA 1984) (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. |
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McMullen, ID#2967, 19 I&N Dec. 90 (BIA 1984) (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, ID#296, 19 I&N Dec. 101 (BIA 1984) 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, ID#2969, 19 I&N Dec. 105 (BIA 1984) (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. |
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Chicas, ID#2970, 19 I&N Dec. 114 (BIA 1984) 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). |
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Repuyan, ID#2971, 19 I&N Dec. 119 (BIA 1984) 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. |
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Allied Fidelity Insurance Company, ID#2972, 19 I&N Dec. 124 (Comm. 1984) (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. |
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Correa, ID#2973,19 I&N Dec. 130 (BIA 1984) (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. |
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Leon-Orosco and Rodriguez-Colas ID#2974, 19 I&N Dec. 136 (BIA 1984; AG 1984) (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. |
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Khatoon, ID#2975, 19 I&N Dec. 153 (BIA 1984) (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. |
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Connelly, ID#2976, 19 I&N Dec. 156 (BIA 1984) (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. |
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Shuen, ID#2977, 19 I&N Dec. 161 (BIA 1984) (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. |
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Pereira, ID#2978, 19 I&N Dec. 169 (BIA 1984) (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. |
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Benitez, ID#2979, 19 I&N Dec. 173 (BIA 1984) (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. |
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Wadud, ID#2980, 19 I&N Dec. 182 (BIA 1984) 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. |
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Waldei, ID#2981, 19 I&N Dec. 189 (BIA 1984) (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. |
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Portugues Do Atlantico Information Bureau, Inc., ID#2982, 19 I&N Dec. 194 (Comm. 1984) (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. |
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Kekich, ID#2983, 19 I&N Dec. 198 (BIA 1984) (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. |
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Ching and Chen, ID#2984,19 I&N Dec. 203 (BIA 1984) 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. |
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Rodriguez-Coto, ID#2985, 19 I&N Dec. 208 (BIA 1985) (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. |
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Acosta, ID#2986, 19 I&N Dec. 211 (BIA 1985) (1) Construction of the
provisions the United Nations Protocol Relating to the Status of (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. |
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Golden Dragon Chinese Restaurant, ID#2987, 19 I&N Dec. 238 (Comm. 1984) (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. |
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Cantec Representatives, Inc., ID#2988, 19 I&N Dec. 241 (Comm. 1984) (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
for |
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Ngai, ID#2989, 19 I&N Dec. 245 (Comm. 1984) 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. |
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United Investment Group, ID#2990, 19 I&N Dec. 248 (Comm. 1984) (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. |
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Viado, ID#2991, 19 I&N Dec. 252 (Comm. 1985) (1) Receipt of Supplemental
Security Income ("SSI") constitutes receipt of public assistance
and is sufficient cause to breach a public charge bond, even in the (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. |
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Barocio, ID#2992, 19 I&N Dec. 255 (Comm. 1985) (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 warrant |
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Patel, ID#2993, 19 I&N Dec. 260 (BIA 1985) (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
to |
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Tayabji, ID#2994, 19 I&N Dec. 264 (BIA 1985) (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. |
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Garcia, ID#2995, 19 I&N Dec. 270 (BIA 1985) (1) Although Article
42.12, section 3d of the Texas Code of Criminal Procedure is not a first (2) Where there has been
no affirmative showing that the trial judge lacked authority under |
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Sanchez and Escobar, ID#2996, 19 I&N Dec. 276 (BIA 1985) (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 a well-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. |
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Kumah, ID#2997, 19 I&N Dec. 290 (BIA 1985) (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. |
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Zaidan, ID#2998, 19 I&N Dec. 297 (BIA 1985) (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. |
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Sano, ID#2999, 19 I&N Dec. 299 (BIA 1985) (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. |
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Linnas, ID#3000, 19 I&N Dec. 302 (BIA 1985) (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. |
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Gharadaghi, ID#3001, 19 I&N Dec. 311 (BIA 1985) (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 countervailing (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. |
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Kulle, ID#3002, 19 I&N Dec. 318 (BIA 1985) (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). |
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Graves, ID#3003, 19 I&N Dec. 337 (BIA 1985) (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. |
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Tuakoi, ID#3004, 19 I&N Dec. 341 (BIA 1985) (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. |
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Naulu, ID#3005, 19 I&N Dec. 351 (BIA 1985) 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. |
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Valencia, ID#3006, 19 I&N Dec. 354 (BIA 1986) 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. |
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Carballe, ID#3007, 19 I&N Dec. 357 (BIA 1986 (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 the United 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 two separate 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 particularly serious crime, e.g., armed robbery, background evidence including the circumstances of the crime is not relevant to the determination of statutory eligibility. |
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Siemens Medical Systems, Inc., ID#3008, 19 I&N Dec. 362 (Comm. 1986) (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 of section 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 over 50 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. |
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Amornvootiskul, ID#3009, 19 I&N Dec. 366 (BIA 1986) (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)], an alien 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 section 203(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 qualified investor; 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 may be 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. |
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Torres, ID#3010, 19 I&N Dec. 371 (BIA 1986) (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 in exclusion 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. |
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Velasquez, ID#3011, 19 I&N Dec. 377 (BIA 1986) (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 of egregious 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 of record 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 the attorney's concession of deportability in a pleading filed in regard to another matter, for there is no "limited" appearance of counsel in immigration proceedings. |
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American Paralegal Academy, Inc., ID#3012, 19 I&N Dec. 386 (BIA 1986) (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 something existing 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 by law 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 to service; 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 who cannot. |
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A. Dow Steam Specialities, Ltd., ID#3013, 19 I&N Dec. 389 (Comm. 1986) 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 in the United States. Only a U.S.-based branch office, affiliate, or subsidiary of the foreign organization may file such a petition. |
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Faith Assembly Church, ID#3014,19 I&N Dec. 391 (Comm. 1986) (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 accorded Schedule 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 for Schedule 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 a religious denomination. |
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Patel, ID#3015, 19 I&N Dec. 394 (BIA 1986) (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 is modified to preclude a further grant of voluntary departure where the original grant has expired. |
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Martinez-Anguiano, ID#3016, 19 I&N Dec. 397 (BIA 1986) (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 for suspension 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. |
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Silver Dragon Chinese Restaurant, ID#3017, 19 I&N Dec. 401 (Comm. 1986) (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, (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 for invalidation of an approved labor certification under 20 C.F.R. § 656.30(d) (1986). |
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Garcia-Alzugaray ID#3018, 19 I&N Dec. 407 (BIA 1986) (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 to section 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 the meaning 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 a prior determination that such alien is inadmissible, following his examination under oath by an immigration officer. |
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Harry Bailen Builders, Inc., ID#3019, 19 I&N Dec. 412 (Comm. 1986) 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 ceases to 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. |
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Garcia, ID#3020, 19 I&N Dec. 416 (BIA 1986) (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 that he had a residence or domicile in New Jersey prior to the beneficiary's 18th birthday. |
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Pradieu, ID#3021, 19 I&N Dec. 419 (BIA 1986) 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 under the 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 filed with an application for adjustment of status. |
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Garcia-Garrocho, ID#3022, 19 I&N Dec. 423 (BIA 1986) (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 an (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 including physical injury or potentially life threatening acts. |
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Atembe, ID#3023, 19 I&N Dec. 427 (BIA 1986) 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 section 101(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 the child, 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 (BIA 1982); and Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), followed. |
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Nafi, ID#3024, 19 I&N Dec. 430 (BIA 1987) 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 his admissibility and has abandoned any application for asylum and order him excluded and deported. |
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Perez-Andrade, ID#3025, 19 I&N Dec. 433 (BIA 1987) (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. |
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Lin Lee, ID#3026, 19 I&N Dec. 435 (BIA 1987) An extract of household registration records is acceptable evidence of family relationships in Taiwan. |
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Teklay, ID#3027, 19 I&N Dec. 437 (BIA 1987) 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 initial acceptance 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. |
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Mogharrabi, ID#3028, 19 I&N Dec. 439 (BIA 1987) (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 meaningfully different, 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." |
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Estime, ID#3029, 19 I&N Dec. 450 (BIA 1987) (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 any explanation 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 Naturalization Service after receipt of a properly issued notice of intention to revoke. |
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Hosseinian, ID#3030, 19 I&N Dec. 453 (BIA 1987) 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. |
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Aurelio, ID#3031, 19 I&N Dec. 458 (BIA 1987) (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 pursuant to 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 in exclusion 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 exercise reasonable diligence in ascertaining its effect on her immigration status. |
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Tomas, ID#3032, 19 I&N Dec. 464 (BIA 1987) (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 to present 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 to insure 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 Kanjobal language of Guatemala where the respondents, who spoke no English and little or no Spanish, could not adequately present their case through |