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equal validity to alien dentists." We will, therefore, apply the qualification standards as set forth in 8 CFR 204.2 (e) (2) to the profession of dentistry.

8 CFR 204.2 (e) (2) provides as follows:

An alien physician shall be considered eligible for classification as a member of the professions if he establishes that he was graduated from a medical school in the United States or Canada, or that he was graduated from a foreign medical school and has successfully passed the examination given by the Educational Council for Foreign Medical Graduates, or that he was graduated from a foreign medical school and has obtained a full and unrestricted license to practice medicine in the country where he obtained his medical education. In any other case the District Director may consult the Educational Council for Foreign Medical Graduates or other organizations and experts in the medical field for the purpose of obtaining an advisory opinion of the alien's qualifications as a physician.

It should be noted from the above that there are three possibilities for establishing eligibility for classification as a member of the professions as a physician which Matter of Maher, supra, indicates may be applied to the profession of dentistry-(1) being a graduate of a United States or Canadian medical school; (2) being a graduate of a foreign medical school and having passed the Educational Council for Foreign Medical Graduates (ECFMG) examination; or (3) being a graduate of a foreign medical school and having a full and unrestricted license to practice in the country where he obtained his education.

The appellant, not being a graduate of a United States or Canadian school definitely does not fall into category (1).

A letter dated August 18, 1969 by the Dean of the Faculty of Dentistry, Trisakti University, states:

In order to obtain the "Doctorgigi" (dentist) degree, students of the Faculty of Dentistry of the TRISAKTI UNIVERSITY have to pass a state examination in accordance with Decree Nr. 74, 1967 Directorate General of High Education, Minister of Education.

Enclosed copies of transcripts and other information concerning examinations passed by Mr. The Bian Tjing as signed by former Dean of the Faculty of Dentistry of RES PUBLICA UNIVERSITY, Dr. Tjia Soen Lee, are found to be correct.

Mr. The Bian Tjing has already passed the final examination of said Faculty of Dentistry, however has not yet passed above mentioned State examination.

This letter indicates that while the appellant may be a graduate he has not yet passed the necessary State examination so officially has no degree and does not have a "full and unrestricted license to practice" in Indonesia where he obtained his medical education. He, therefore, does not meet the requirements of category (3).

The remaining possibility is category (2), graduate from a foreign medical school and passing the ECFMG examination. A letter dated June 25, 1970 from the Director, Special Student Program, University of Southern California, Los Angeles, states:

Dr. Bian The's credentials have been examined by the Admissions Office at the University of Southern California and have been found in order. This is a specific prerequisite for our Special Student Program. He must be a graduate from dental school and our Admission office found this to be true.

We will honor the finding of the Director, Special Student Program, to the effect that the appellant is a graduate of a dental school. The final issue is to determine if the appellant has passed the ECFMG examination or its equivalent.

The record shows that the appellant has passed the "Science Achievement Examination for Dentistry" given by the American Dental Association. Counsel's principal argument on appeal is that the passing of this examination is the equivalent of passing the ECFMG examination, and having passed such examination the appellant meets the requirements of category (2) of 8 CFR 204.2 (e) (2) and cites Matter of Maher, supra. Maher, however, was a graduate and had a full and unrestricted license to practice. In the case before us the appellant, while we will consider him to be a graduate, failed to take the required State examination and has not obtained a full and unrestricted license to practice. In the case before us we must now determine if the passing of the "Science Achievement Examination for Dentistry" is the equivalent of passing the ECFMG examination.

On February 26, 1971 the Executive Director of the ECFMG by letter advised the Service that "The purpose of the ECFMG program is to determine whether graduates of foreign medical schools are qualified to start a graduate medical training program as intern or resident in approved United States hospital." (Emphasis supplied.)

A pamphlet entitled "Science Achievement Examination for Dentistry," published by the Division of Educational Measurements, Council on Dental Education, American Dental Association, states: "The science achievement examination is intended to provide dental education programs with an evaluation of the basic science competency of the foreign dental graduate seeking admission to either the undergraduate D.D.S. or D.M.D. degree program or some type of advanced dental education" and "Therefore, the Science Achievement Examination for Dentistry was developed to provide an accurate evaluation of the candidate's

knowledge in the basic sciences. This is one of the major criteria used to determine the proper level of placement for the prospective degree candidate."

From the above it is evident that the two programs, ECFMG examination and Science Achievement Examination for Dentistry, do not serve the same purpose and that the passing of the Science Achievement examination cannot be equated with the purpose of the ECFMG examination as set forth in 8 CFR 204.2 (e) (2). The ECFMG examination determines if the foreign medical graduate is qualified to start a graduate medical training program as an intern or resident. The Science Achievement examination is to evaluate the basic science competency of the foreign dental graduate and to determine the level of placement in a dental school, undergraduate or graduate, where the alien will enroll. In the present case the record shows that the appellant's level of placement was given as "3RD YR. (TENT)" and has been accepted as a third year student at the University of Southern California Dental School.

Considering all the factors discussed herein we find that the appellant cannot at this time be found to qualify as a member of the professions as a dentist under section 203 (a) (3) of the Act. Matter of Brantigan, 11 I. & N. Dec. 493, holds that the burden of proof to establish eligibility for a desired preference rests with the appellant. That burden has not been met. The appellant has failed to establish that he is eligible for the classification he seeks. The appeal will be dismissed.

Denial of the petition, however, is without prejudice to the consideration of a new petition for sixth preference classification should the appellant obtain a definite offer of employment from a prospective employer in this country seeking his services and an appropriate certification be issued by the Department of Labor pursuant to section 212 (a) (14) of the Act, as amended. ORDER: It is ordered that the appeal be dismissed.

MATTER OF GERONIMO

In Deportation Proceedings

A-18924288

Decided by Board March 5, 1971

(1) Determination as to the institution of deportation proceedings against a deportable alien lies within the province of the District Director. Where deportation proceedings have been instituted, it is not within the province of the special inquiry officer, nor the Board of Immigration Appeals on appeal, to review such action but to determine whether deportability is established by evidence which is clear, convincing and unequivocal. (2) Allegations of misconduct against Service personnel and respondent's former attorney made on appeal in deportation proceedings and based on matters outside the administrative record, should not be casually asserted but should be specified and stated under oath.

CHARGE:

Order: Act of 1952-Section 241 (a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmigrant visitor-remained longer than permitted.

This is an untimely appeal from a decision of a special inquiry officer, finding the respondent deportable on the above-stated charge and granting her the privilege of voluntary departure. We shall consider the case on certification under 8 CFR 3.1 (d).

Respondent is a 24-year-old unmarried female, native and citizen of the Philippines, who was admitted to the United States as a nonimmigrant visitor for pleasure on October 4, 1969 and has remained longer than permitted. At a deportation hearing on January 22, 1971, at which she was represented by counsel, she admitted the factual allegations of the order to show cause and conceded deportability. On the same day, the special inquiry officer granted her the privilege of departing voluntarily on or before February 22, 1971. Respondent thereafter retained present counsel, whose notice of appeal in her behalf, though dated January 29, 1971, was not filed until February 5, 1971.

In his notice of appeal and supporting brief, present counsel seeks reversal on the basis of factual allegations outside the ad

ministrative record. In substance, the brief asserts that respondent obtained her visitor's visa through travel agents in the Philippines who, without her knowledge, had falsified her visa application and passport; that following entry, on April 1, 1970 respondent filed a third preference visa petition, which has been approved by the District Director; that respondnet, on interview by Service investigators, gave a detailed statement as to her visitor's visa; that the District Director, contrary to his usual policy, declined to permit respondent to remain in the United States until a quota number became available, but instead instituted these deportation proceedings against her. The brief asserts that respondent's former counsel failed at the deportation hearing to raise a defense based on the allegedly improper actions of the District Director and the Service investigator.

The assertion that the District Director abused his discretion in refusing to permit the respondent to remain in the United States after approval of her visa petition presents no defense cognizable in these deportation proceedings. It is within the District Director's prosecutive discretion whether to institute deportation proceedings against a deportable alien or temporarily to withhold such proceedings. Where such proceedings have been begun, it is not the province of the special inquiry officer (or of this Board on appeal) to review the wisdom of the District Director's action in starting the proceedings, but to determine whether the deportation charge is sustained by the requisite evidence. Our review of this record satisfies us that deportability has been established by evidence which is clear, convincing and unequivocal. The allegations which present counsel now makes with respect to the District Director raise no proper defense to the deportation charge. Respondent's former attorney was not remiss in not attempting to put forward such an untenable defense.

The second point asserted in the notice of appeal is that the respondent's failure to develop at the hearing the facts of her victimization by the Philippine travel agents deprived her of the opportunity to leave voluntarily. Since the special inquiry officer did in fact grant respondent the privilege of voluntary departure, we fail to see how she has been prejudiced by the failure of her former attorney to burden the record with the irrelevant details of her alleged deception by her travel agents.

The third ground for appeal in the notice of appeal is stated thus: "Immigration Service through their threats and misleading statements to induce alien and her former counsel to present no real defense to the charges in the hearing." This statement is not

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