Interim Decision #1992 

MATTER OF NAND 

In Deportation Proceedings 

A-17955476 

Decided by Board July 24, 1.969 

A foreign record of respondent's conviction in Fiji, signed and attested to by 

the clerk of court as a certified true copy, accompanied by a cerLifickilion 

of signature and position of the clerk of court made by an American 

vice-consul, is properly authenticated under Rule 44(a) (2) of the Federal 

Rules of Civil Procedure, as amended December 31, 1967, so as to support 

an order of deportation based on such criminal conviction. 

CHARGE: 

Order: Ac of 1052—Section 241 (a) (1) [8 U.S_C. 1251(a) (1)1—Excludable at time of entry—crime conviction: breaking, 

entering and larceny in violation of sections 

327 (a) and 288 (1) of the Penal Code of Fiji. 

ON BEHALF OF RESPONDENT: 

Emanuel P. Razeto, Esquire 

1414 Central Building 

Oakland, California 04617 

(Brief filed) 

ON BEHALF OF SERVICE: 

Irving A. Appleman 

Appellate Trial Attorney 

Stephen M. Suffin 

Trial Attorney 

(Brief filed) 

The case comes forward on appeal from the order of the special inquiry officer entered January 8, 1969 finding the respondent 

deportable on the charge stated in the order to show cause, denying the respondent's application for permanent resident status 

under section 245 of the Immigration and Nationality Act, granting voluntary departure in lieu of deportation on or before February 8, 1969 with the further order that if the respondent failed 

to depart when and as required, he be deported to Canada, alternatively, to Fiji. 

The record relates to a native of Fiji, a subject of Great 

Britain, 33 years old, male, married, who last entered the United 

States at Blaine, Washington on March 24, 1967 as a temporary 

visitor. On January 14, 1958 the respondent was convicted by , the 
Interim Decision #1992 

Magistrate Court of the First Class at Suva, Fiji, of breaking, 

entering and larceny committed January 12, 1958 and was sentenced to 12 months imprisonment. His appeal on the ground that 

the sentence was too severe for the crime committed was dismissed on February 10, 1958 (Ex. 4). 

The crime of breaking, entering and larceny is a crime involving moral turpitude. Inasmuch as the punishment actually 

imposed was more than six months, the crime is not classifiable 

as a petty offense under the provisions of section 1.3 of Title 18 

of the United States Code.' The respondent is deportable as 

charged in the order to show cause. The respondent has been convicted of a crime involving moral turpitude not classifiable as a 

petty offense, and since he is not eligible for a waiver thereof 

under section 212 (h) because of the lack of the required familial 

tics in the United States, he is ineligible for adjustment of status 

to that of a permanent resident. His application for that relief 

was properly denied. However, the special inquiry officer has 

granted the respondent voluntary departure in lieu of deporta 

tion. The Service is not opposed to that grant. The grant of voluntary departure will be approved. 

Counsel in his brief and at oral argument contends that the 

proof of conviction adduced at the hearing (Ex. 4) is insufficient 

to support an order for deportation inasmuch as it is not accompanied by a certificate showing that the attesting officer had custody of the record as required by Rule 44 of the Federal Rules of 

Civil Procedure. In support of this contention he cites Chew v. 

Boyd, 309 F.2d 857 (9 Cir., 1962), and McNeil v. Kennedy, 289 

F.2d 323 (D.C. Cir., 1962). 

Rule 44 of the Federal Rules of Civil Procedure as amended 

December 31, 1967 (Title 28, Appendix, Fed. R. Civ. P., 1964 ed. 

Supp. III 1965-1967) deals with authentication of two types of 

official records. Rule 44(a) (2) made a change in the requirement 

for authentication of foreign official records as contrasted with 

authentication of domestic records, governed by Rule 44(a) (1). 

which adhered to the rule previously set forth in Chew v. Boyd, 

309 F.2d 857. The requirement relating to authentication of foreign 

official records now merely requires an official publication thereof, 

or a copy thereof, attested to by a person authorized to make the 

attestation, and accompanied by a final cerification as to the genuineness of the signature and official position (i) of the attesting 

person, or (ii) of any foreign official whose certificate of genuine- 

, 

1Matter of G----A—, 7 I. & N. Dec. 274, 375; Matter of M—, 8 I. & N. 

Dee. 453, 455. 

337 
Interim Decision # 1992 

Magistrate Court of the First Class at Suva, Fiji, of breaking, 

entering and larceny committed January 12, 1958 and was sentenced to 12 months imprisonment. His appeal on the ground that 

the sentence was too severe for the crime committed was dismissed on February 10, 1958 (Ex. 4). 

The crime of breaking, entering and larceny is a crime involving moral turpitude. Inasmuch as the punishment actually 

imposed was more than six months, the crime is not classifiable 

as a petty offense under the provisions of section 1.3 of Title 18 

of the United States Code.' The respondent is deportable as 

charged in the order to show cause. The respondent has been convicted of a crime involving moral turpitude not classifiable as a 

petty offense, and since he is not eligible for a waiver thereof 

under section 212 (h) because of the lack of the required familial 

ties in the United States, he is ineligible for adjustment of status 

to that of a permanent resident. His application for that relief 

was properly denied. However, the special inquiry officer has 

granted the respondent voluntary departure in lieu of deportation. The Service is not opposed to that grant. The grant of voluntary departure will be approved. 

Counsel in his brief and at oral argument contends that the 

proof of conviction adduced at the hearing (Ex. 4) is insufficient 

to support an order for deportation inasmuch as it is not accompanied by a certificate showing that the attesting officer had custody of the record as required by Rule 44 of the Federal Rules of 

Civil Procedure. In support of this contention he cites Chew v. 

Boyd, 309 F.2d 857 (9 Cir., 1962), and McNeil v. Kennedy, 289 

F.2d 323 (D.C. Cir., 1962). 

Rule 44 of the Federal Rules of Civil Procedure as amended 

December 31, 1967 (Title 28, Appendix, Fed. R. Civ. P., 1964 ed. 

Supp. III 1965-1967) deals with authentication of two types of 

official records. Rule 44(a) (2) made a change in the requirement 

for authentication of foreign official records as contrasted with 

authentication of domestic records, governed by Rule 44(a) (1), 

which adhered to the rule previously set forth in Chew v. Boyd, 

309 F.2d 857. The requirement relating to authentication of foreign 

official records now merely requires an official publication thereof, 

or a copy thereof, attested to by a person authorized to make the 

attestation, and accompanied by a final cerification as to the genuineness of the signature and official position (i) of the attesting 

person, or (ii) of any foreign official whose certificate of genuine-: 

1Matter of G—A—, 7 1. & N. Dec. 274, 375; Matter of M—, 8 I. & N. 

Dec. 453, 455. 

337 
Interim Decision #1992 

ness of signature and official position relates to the attestation or 

is in a chain of certificates of genuineness of signature and official 

position relating to the attestation. A final certificaion may be 

made by a secretary of embassy or legation, consul general, vice 

consul or consular agent of the United States or a diplomatic or 

consular officer of the foreign country assigned or accredited to the 

United States. 

The Notes of the Advisory Committee on Rules states that the 

reference to authentication by "the officer having legal custody of 

the record," hitherto appearing in Rule 44, has been found inappropriate for official records kept in foreign countries where the 

assumed relationship between custody and the authority to attest 

does not obtain. Accordingly it is provided that an attested copy 

may be obtained from any person authorized by the law of the 

foreign country to make the attestation regardless of whether he 

is charged with responsibility for maintaining the record or keeping it in his custody. The Notes of the Advisory Committee go on 

to state that the difficulties are met under the amended rule by 

eliminating' the element of the authority of the attesting foreign 

official from the scope of the certifying process, and by specifically permitting the usage of the chain-certificate method. Under 

this method, it is sufficient if the original attestation purports to 

have been issued by an authorized person and is accompanied by 

a certificate of another foreign official whose certificate may in 

turn be followed by that of a foreign official of higher rank. The 

process continues until a foreign official is reached as to whom 

the United States foreign service official has adequate information on which to base a "final certification." 

In she instant_ case, the conviction record (Ex. 4) is signed by 

the clerk of the court as a certified true copy, followed by the seal 

of the magistrate's court, followed by a certification of an American vice consul that Ilaisa Seru Tulele, whose true signature and 

official seal are subscribed and affixed to the annexed document 

was, on the 24th day of May 1968, the date thereof, the Clerk of 

the Court, duly commissioned and qualified, to whose official acts 

faith and credit are due. Thus the authentication of the foreign 

document conforms fully with the Rule 44 (a) (2) as amended 

February 28, 19.66, effective July 1, 1966. 2 

ORDERED: It is ordered that the appeal be and the same is 

hereby dismissed. 

2 The provisions of 8 CFR 287.6 as amended November 29, 1967, embody 

the same distinction as amended Rule 44 as to uornestic records and foreign 

records. 

338 
Interim Decision #1992 

It is further ordered that, pursuant to the special inquiry 

officer's order, the respondent be permitted to depart from the 

United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by 

the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the specialinquiry officer's order. •