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The record also shows that the applicant's mother abandoned her permanent resident status. The testimony established that although she had returned with her husband to Mexico, she made no attempt to return to the United States even after the husband had abandoned the family. This occurred in 1970, although the husband had been living with someone else in Tijuana for five years. She testified that she could not return without documents, but apparently made no attempt to find the ones the family had, or obtain any, although she was in a border town (Tr. pp. 36-47). The immigration judge found her testimony to be implausible and not worthy of belief. As the trier of fact, his judgment in this regard cannot lightly be set aside. Vasquez-Mondragon v. INS, 560 F.2d 1225, 1226 (5 Cir. 1977). We are satisfied that given both the mother's version of events and the immigration judge's evaluation of her testimony, that she did in fact abandon her permanent resident status. Since the parents' abandoment occurred when the applicant was about six years of age, and under their control and custody, this abandonment can be imputed to the applicant in turn. Matter of Winkens, Interim Decision 2429 (BIA 1975). His testimony that he, when he was so young, intended to return and work in the United States is not credible.

The second finding of excludability is grounded on a violation of section 212(a)(23) of the Act. The immigration judge concluded that the applicant was a trafficker in marihuana. We agree with the immigration judge that the applicant was a conscious participant in an attempt to smuggle a kilogram of marihuana into the United Staes (Tr. pp. 53-57). The quantity was sufficient to find that the applicant was a trafficker, although he appears to have made a single attempt to smuggle marihuana into the United States. Matter of Rico, Interim Decision 2576 (BIA 1977); Matter of P—, 5 I. & N. Dec. 190 (BIA 1953).

We also do not agree with the applicant that this finding subverts the Congressional intent behind the Federal Youth Corrections Act. The theory behind the applicant's contention is basically that when a person is brought within this Act, not only the conviction but the underlying acts are incorporated into any possible expungement under 18 U.S.C. 5021(b) and that such expungement destroys the conviction as a basis for deportation or exclusion. He contends that since this is the case, the exclusion proceedings should have been deferred under Operations Instruction 242.1(a)(26) while the possibility of expungement still existed (Tr. pp. 49-50). This Operations Instruction states in part:

When the district director determines that there is a probability that an expungement certification will be issued under the Federal Youth Corrections Act . . . he shall, for the period during which the expungement certificate may be issued, defer institution of deportation proceedings based on the conviction for which expungement is being sought in anticipation that the certification will issue.

It is clear from this that if the conviction is the basis of the charge of

deportability, proceedings may be deferred. In this instance, the conviction, which was for violation of 18 U.S.C. 542, entry of goods by means of false statements, did not constitute the basis for the charge under section 212(a)(23) of the Act. This section classifies as excludable a person convicted of narcotics violations or ". . . any alien who the consular officer or immigration officers know or have reason to believe is or has been an illicit trafficker in any of the aforementioned drugs." It was under this latter provision that the applicant was found excludable. This provision by its clear terms is entirely distinct from the provision requiring conviction for deportability to be established.

While the applicant has expressed the view that the enactment of the Federal Youth Corrections Act showed Congressional interest in not branding youthful offenders for life, it is equally apparent that Congress has shown a strong intent to combat marihuana and narcotics traffic and has imposed harsh sanctions in the immigration law against aliens convicted for, or believed to have been engaged in, this activity. Sections 212(a)(23), (a)(11), 241(b), 244(a) and 244(e) of the Act. While this policy has been attacked as unduly harsh, it has been upheld in the deportation context as not without rational justification. Guan Chow Tok v. INS, 538 F.2d 36, 38 (2 Cir. 1976). Given the apparent purpose behind these provisions-which nowhere include provisions for different treatment depending on the age of the alien-this Board has held that even where a criminal complaint has subsequently been dismissed, an alien could be excluded under section 212(a)(23) of the Act as a trafficker when the immigration officer had reason to believe that the alien was a trafficker. Matter of Rico, supra. As we pointed out there, the criminal action against the applicant was a separate judicial matter and the administrative decision in an exclusion proceeding is predicated upon a review of the evidence of record and the application of the appropriate immigration law.

We do not find the present situation substantially distinguishable. In Rico, supra, prosecution was dropped. In this case prosecution and conviction were had for an offense not necessarily including a finding of illicit trafficking in marihuana, but simply entering goods by false statements. We found that the lack of a conviction in Rico did not foreclose a finding that the alien was a trafficker, in keeping with the purpose of the immigration law sections dealing with the control of narcotics and marihuana. In this case, the conviction was for an offense not related to marihuana per se. To require the Service to forego proceedings because the conviction exists would be inconsistent with the purpose of the trafficking provision. We find that the trafficking provision of section 212(a)(23) was meant to forestall any such result through its plain language, although the consequences are severe. See Jay v. Boyd, 351 U.S. 345, 357 (1956).

We consequently conclude that the applicant is excludable under section 212(a)(23) of the Act on the evidence presented in the record, as the immigration officer could reasonably believe that the applicant was an illicit trafficker in marihuana. Hamid v. INS, 538 F.2d 1389, 1391 (9 Cir. 1976). The appeal will accordingly be dismissed. ORDER: The appeal is dismissed.

MATTER OF TAUSINGA

In Deportation Proceedings

A-22450962

Decided by Board June 6, 1979

(1) A respondent, seeking to adjust her status as a nonpreference immigrant exempt from the labor certification requirements of section 212(a)(14) of the Immigration and Nationality Act, 8 U.S. C. 1182(a)(14), must establish that she does not intend to enter the labor market in the United States and that she will not have to seek employment in the foreseeable future.

(2) An alien's age and health, her financial status and that of her supporting family, and the closeness of the family relationship, are all relevant to whether an aged, handicapped, or otherwise dependent relative who is a member of the household of a United States citizen or a lawful permanent resident may be able to establish exemption from the labor certification requirements of section 212(a)(14).

(3) Where a person is of an age or physical condition which would not preclude working, there is a presumption that employment will occur and the burden will be on the respondent to overcome this presumption.

(4) As the respondent—a widow without independent means, living with her married son, and dependent upon his earnings and those of her daughter-in-law-who is in good health and employable for years to come, failed to overcome presumption that employment will occur, the application for adjustment of status was properly denied based on her failure to establish an exemption from the labor certification requirements of section 212(a)(14) of the Act.

CHARGE:

Order: Act of 1952-Section 241(a(2) [8 U.S.C. 1251(a)(2)—Nonimmigrant visitorremained longer

ON BEHALF OF RESPONDENT: Donald L. Ungar, Esquire

515 Washington Street, #302

San Francisco, California 94111

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

The respondent appeals from a decision of an immigration judge, dated October 27, 1978, finding her deportable as charged, denying her application for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, and granting her the privilege of voluntary departure. The appeal will be dismissed.

The respondent, a widow, is a 56-year-old native and citizen of Tonga.

She was admitted to the United States as a nonimmigrant visitor in 1975, and lived with her daughter and son-in-law until August 1976 when her daughter became "mad" at her because she would not convert to her daughter's religion. She then moved into her son's apartment and lived with him, his wife, and their child. In May 1977, the District Director denied the respondent's application for status as a permanent resident. In August 1978 an Order to Show Cause was issued charging the respondent with being deportable under section 241(a)(2) of the Act, 8 U.S.C. 1251(a)(2), as an "overstayed" visitor.

At the deportation proceeding held in October 1978, the respondent conceded deportability, but applied for adjustment of status as a nonpreference immigrant exempt from the labor certification requirements of section 212(a)(14) of the Act as one not entering the United States for the purpose of performing skilled or unskilled labor. In support of this position, the respondent indicated that her son and daughter-in-law were providing virtually all of her support. Her son held two jobs and worked some 80 hours a week and his wife worked full time. The respondent shared their one-bedroom apartment and helped care for her grandchild. The respondent's son testified at that time it was not hard for him to support his mother as well as his family. He also stated that he did not think his mother would get a job because she was "too old" and not capable of finding employment.

Although the respondent stated that she had never previously worked, the immigration judge found that she was in good health and potentially employable. He also expressed doubts as to how long the respondent's son could continue with his present working hours and continue providing for the full support of his mother. Analogizing the facts in this case to those in issue in Matter of Fulgencio, Interim Decision 2588 (BIA 1977), the immigration judge concluded that the respondent had failed to meet her burden of establishing that she would not perform skilled or unskilled labor in the United States. He, therefore, determined that she was neither exempt from the labor certification requirements of section 212(a)(14), nor presently eligible for adjustment of status under section 245.

On appeal, the respondent, through counsel, states that the rationale underlying the decision in Matter of Fulgencio, supra, is inapplicable here. Counsel submits that the fact that the respondent was married in Fulgencio and, if admitted, could have sought to bring her husband to the United States (also without a labor certification) was the principal reason for denying adjustment to that respondent. Because the respondent here is a widow, it is urged that adjustment should be granted.

The fact that the respondent in Fulgencio was married was a consideration in the resolution of that case. Of more significance, however, was the fact that the respondent therein failed to establish that she

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