Interim Decision #1857 

M.A.r.ebit OF CRUZ-GASTELFrid 

In Deportation Proceedings 

A-13110444 

Decided by Board April Z6, 1968 

In the absence of a record of his claimed admission, a presumption of lawful 

admission for permanent residence pursuant to 8 CFR 101.1(j) is not avaiianle 

to respondent, who claims to have been admitted erroneously as a United States 

citizen in 1948, notwithstanding parole and other evidence establishing a strong 

probability of entry aa claimed. 

OrcaaoS: 

Order : Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)] —, Convicted 

of edam involving moral turpitude within five years 

after entry. 

This case comes forward on certification from the special inquiry 

officer, who found the respondent deportable as charged, ineligible for 

any form of discretionary relief, and ordered him deported to the 

Republic of Mexico. 

Respondent is a 24-year-old single male alien, native and citizen of 

Mexico, who was admitted to the United States for permanent residence, in possession of a nonquota immigrant visa, on August 16, 1962, 

at San Ysidro, California. On October 25, 1965 he was convicted, upon 

his plea of guilty, in the court of the State of California, of the crime 

of burglary, second degree, in violation of section 459 of the Penal Code 

of California, committed on October 24, 1965. He was thereafter sentenced to imprisonment for the term provided by law (not less than one 

year and not more than fifteen years), which in his case was set at two 

years and six months. The crime of burglary in the second degree, in 

violation of section 459 of the Penal Code of the State of California, has 

been held to be a crime involving moral turpitude ; see Matter of 2—, 

5 I. & N. Dec. 283. 

At the initial deportation proceedings held in 1966, at which respondent chose to proceed without counsel, he conceded that the conviction record related to him, and that he had come to the United 

States with an immigrant visa on the date specified, but contended that 

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he had been a lawful permanent resident of the United States for 

many years prior to August 1962. It was 'brought out at the hearing 

that respondent's father was a native born citizen of the United States 

who had resided in this country for slightly more than 20 years prior to 

respondent's birth, but that his residence was two and one-half months 

short of the five years after attaining the age of sixteen that would 

have been necessary for respondent to have acquired citizenship at 

birth abroad under the provisions of section 201(g) of the Nationality 

Act of 1940. There was no further exploration of respondent's claim of 

permanent resident status prior to August 1962. The special inquiry 

officer found respondent to be an alien, deportable as charged, holding 

that the brief absence from the United States in August, 1962 (which 

respondent testified was for the sole purpose of picking up the visa and 

was of less than a day's duration) did not come within the ruling in 

Rosenberg v. Fleuti, 374 U.S. 449, because it was not until the return 

from that absence that respondent was first admitted to the United 

States for permanent residence. 

At the close of the hearing, respondent was asked whether he wished 

to appeal from the special inquiry officer's decision, and he replied that 

. he would accept it. Two months later, however, he wrote •a letter to the 

Immigration and Naturalization Service, stating that he felt he had a 

basis on which to appeal. He wrote that he had first come to the United 

States with his father and had been admitted as the son of a citizen 

upon pre,sentation of his birth certificate; that he had never thereafter 

returned to Mexico to live; that he had registered for the draft in 

1961 and shown proof of his legal status; and that the crime had not 

been committed within five years after his entry because he had been 

residing in the United States for about 18 years at the time of his conviction. When this letter was brought to the special inquiry officer's 

attention some months later, he regarded it as a motion to reopen or 

reconsider, and gave the Service an opportunity to submit a brief in 

opposition, which it chose not to do. The special inquiry officer then 

reviewed the case, held that nothing in the motion warranted a change 

in his earlier decision, and denied the motion. 

Respondent appealed the denial to the Board. Upon consideration 

of all of the factors in this case, the Board sustained the appeal and 

remanded the case for exploration of the possibility that respondent 

might come within the provisions of section 101.1 (j) of Title 8, OFR, 

and be entitled to the benefit of the presumption that he had been lawfully admitted for permanent residence in 1948, if a, record of his admission as the child of a citizen existed. The Board also pointed out 

that if it should be found respondent was entitled to the presumption 

of lawful admission provided for in section 101.1 (j), then a. departure 

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Interim Decision 4t1857 

made on the basis of a legal or factual misapprehension as to the 

need for a visa (the sole reason for the trip to Mexico)? might possibly bring the return within the exception set forth in Rosenberg v. 

Fleuti,supra. 

A reopened hearing was held on April 10, 1967. Respondent, who was 

free on parole, still chose to proceed without counsel. At that hearing, 

respondent's father testified not only as to hia own citizenship, but as 

to the circumstances surrounding his bringing of respondent to the 

United States in the early part of 1948, and respondent's admission as 

the citizen son of a citizen father, after presentation of birth certificates and other requested documentation. 

The special inquiry officer has stated : 

I believe that the re:vandal:it's father teRtifled truthfullv that he and the 

respondent were Inspected and were admitted to the United States as citizens 

at the time of their entry in 1948 * ". (Decision, p. 9) 

Exhibit 1t-14 establishes that respondent was definitely in the 

United States in 1948; it is an extract from the official records of the 

Los Angeles City Board of Education showing that he attended kindergarten at the Twenty-Eighth Street School in Los Angeles from 

September 13, 1948 to January 24, 1949. The special inquiry officer has 

further held that there is no evidence that fraud or misrepresentation 

was practiced in connection with respondent's admission into the 

United States at that time, and that although neither he nor his father 

was in possession of a United States passport, it would not have been 

required of them as United States citizens coining from Mexico. However, no record of respondent's admission as a citizen, in or about 1948 

or at any time, can be found (see Ex. R-1) , the only admission record 

pertaining to him being the one showing his entry on August 16, 1962 

in possession of the nonquota immigrant visa he left the country to 

obtain (see Ex. R-2). 

8 CFR 101.1 provides: 

Presumption of lawful admission. A member of the following classes shall 

be presumed to have been lawfully admitted for permanent residence even though 

a record of his admission cannot be found, except as otherwise provided in this 

section, unless he abandoned his lawful permanent resident status or subse- 

'Respondent and two sisters applied for certificates of citizenship in 1961, and 

it was during the course of processing of these applications that they were 

advised they bad not become citizens at birth because of the insufficiency in 

their father's residence. They were told that because they had not been entitled 

to enter as citizens, and bad never entered as immigrants, they were in the 

United States illegally, and were advised to apply for immigrant visas at a 

Consulate in Mexico, which they did. It appears that this advice was given to 

them by an officer or officers of the Immigration and Naturalization Service. 

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quently lost that status by operation of law : * * *. (Textual emphasis 

supplied.) 

Although seven of the ten subdivisions of section 101.1 do not require that there be a record of admission, subsection (j), -which covers 

respondent's situation, is one in which it is "otherwise provided." That 

subsection, in pertinent part, reads as follows : 

Erroneous admission 58 United States citizens or as children, of citizens. 

(1) (1) An alien for whom there eats a record of admission prior to September 

11, 1957, as a United States citizen who establishes that at the time of such admission he was the child of a United States citizen parent; he was erroneously 

issued a United States passport or included in the United States passport of his 

citizen parent accompanying him or to whom he was destined; no fraud or misrepresentation was practiced by him in the issuance of the passport or in gaining admission ; he was otherwise admissible at the time of entry except for 

failure to meet visa or passport requirements ; and he has maintained a residence in the United States since the date of admission, or (II) an alien whomeets all of the foregoing requirements except that if he were, in fact, a citizen 

of the United States a passport would not have been required, or it had been 

individually waived, and was erroneously admitted as a United States citizen. 

by a Service officer. • • *" (Textual emphasis supplied.) 

Thus, as the special inquiry officer has pointed out, while respondent 

meets all of the other conditions, he cannot meet the initial requirement 

of the regulation, that he be "an alien for whom there exists a record of 

admission prior to September 11, 1957, as a United States citizen." It 

was the special inquiry officer's considered opinion that although he 

believed respondent's father's testimony that respondent was in fact 

admitted to the United States as a citizen in 1948, the testimony alone 

did not satisfy the requirement that there be a record of that admission. In this we must concur. 

Although we are aware of no reported decisions squarely in point 

Matter of C—, 8 I. & N. Dec. 421, involving section 101.1(j) in an 

earlier form, is somewhat analogous to the situation before us. There 

a child born in Canada of a native born United States citizen mother 

(who did not have sufficient United States residence before the child's 

birth to enable the child to acquire citizenship at birth under the controlling law) and an alien father, was erroneously admitted as the citizen child of a United States citizen parent when brought to this country at 21 months of age. Neither she nor her mother had a. United States 

passport; passports were not required of United States citizens seeking 

entry from Canada. The child, when applying for a certificate of citizenship, claimed that she had derived citizenship at the time of herfather's naturalization in 1949, and was faced with the problem of 

establishing that she had been lawfully admitted for permanent residence, a prerequisite to citizenship derivation. It was her contention 

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that she was entitled to a presumption of such lawful admission under 

the provisions of 8 CFR 101.1 (j ), which did not then contain the 

exception to the passport requirement presently set forth in subsection 

(j) (1) (ii). This point was dealt with as follows: 

Applicant meets all the requirements of this portion of the regulations except 

that she had not been erroneously issued a passport or included in the United 

States passport of her citizen mother. As pointed out above, neither tee subject 

nor her mother bad a passport Absent this essential requirement, this portion of 

the regulations affords no benefit to the applicant. 

It is urged that the passport requirement has no application to the instant 

case for the reason that passports were not required under the circumstances of 

the applicant's entry from Canada. This contention must be rejected. The 

language of Part 101.1(j) is dear and unambiguous. No exceptions or deviations 

are set forth. Literal compliance therewith is necessary in order that an entry 

may be presumed lawful for permanent residence. 

We believe that the above rationale applies equally to the situation 

before us. Section 101.1(j), 8 CFR, is not merely a codification of 

previously existing law or interpretations; nor does the presumption 

therein set forth logically and automatically arise from the factual 

situation described. The presumption of lawful admission was created 

by the adoption of that regulation, which specifically sets forth the 

conditions that must be met before the presumption will come into 

being. These conditions, as has been pointed out, are clear and unambiguous; such exceptions as are permitted are specifically set forth 

in the text of the subsection itself. 

In the case before us, in spite of the strongly established. probability 

that respondent was admitted at the time and place and in the manner 

testified to by his father, he has been unable to present any documentary evidence of such admission, and search of the record centers 

of the Immigration and Naturalization Service has failed to uncover 

a record of his admission, prior to September 11, 1957, as a United 

States citizen. Thus, he cannot meet an essential condition of section 

101.1(j), and cannot benefit from the presumption that he was lawfully admitted for permanent residence in 1948. He must, therefore, be 

deemed to have first entered for lawful permanent residence when he 

returned from Mexico with a nonquota immigrant visa on 

August 16, 1962. 

In view of the above, we uphold as correct the finding of the special 

inquiry officer that respondent's return in 1962 was an entry, not 

excused by the exception set forth in Rosenberg v. Alma, supra. It 

must flow from this that respondent's conviction in October 1965, 

for a crime involving moral turpitude, for which he was sentenced to 

imprisonment for a term exceeding one year, was within five years of 

his entry, and he is therefore, deportable as charged. 

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The special inquiry officer, having in mind that respondent has 

lived in the United States continuously since the age of four, and has 

all of his family here, has carefully explored every possible type of 

discretionary relief from deportation, and has correctly concluded 

that respondent cannot qualify for any form of relief. He has accordingly ordered deportation to the Republic of Mexico. His decision 

must be affirmed. 

ORDER: It is ordered that the decision heretofore entered herein 

by the special inquiry officer on April 10, 1967, and certified to this 

Board, be and the same is hereby in all respects affirmed. 

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