Interim Decision #1311 

MATTER of Pnur.Anaimplr 

In DEPORTATION Proceedings 

A-6705791 

Decidedby Board December 10,1963 

(1) An illegitimate child could not derive U.S. citizenship under section 314 of 

the Nationality Act of 1940. 

(2) Although both his admission to the United States for permanent residence 

and his mother's naturalization as a U.S. citizen occurred while he was under 

16 years of age, an illegitimate child born January 1, 1932 in Finland, did not 

derive U.S. citizenship under section 321(a) (3) of the Immigration and 

Nationality Act, since he was over 10 years of age on December 24, 1952, the 

effective date of the Act. 

(3) Since conviction within the meaning of section 241(a) (4), Immigration 

and Nationality Act, exists when the•following elements are present: (1) if 

there has been a Judicial finding of guilt, (2) the court takes action which 

brings the case in the category of those which are pending for consideration by 

the court—the court orders that the defendant be fined or incarcerated or the 

court suspends the imposition of sentence, and (3) the action of the court is 

considered a con-victim by the state court for at least some purpose, an auen 

convicted on a plea of guilty of the crime of simple robbery by a Colorado court 

which ordered imposition of sentence suspended and placed him on probation 

for 5 years has been convicted. 

CHARGE : 

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

two crimes after entry, to wit, simple robbery and statutory rape. 

The case comes forward on appeal from the decision of the special 

inquiry officer dated May 23, 1963 ordering respondent deported to 

Finland on the charge contained in the order to show cause. 

The first issue is that of alienage. The respondent was born out 

of wedlock on January 1, 1932 in Finland. The respondent's mother 

was naturalized on January 15, 1945 in the United States District 

Court at New York. The respondent was admitted to the 'United 

States for permanent residence on June 16, 1947. At the time of his 

admission to the United States he was under 16 years of age, being 15 

years and five months old. Since the mother's naturalization and the 

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Interim Decision *1311 

respondent's lawful admission for permanent residence occurred subsequent to the effective date of the Nationality Act of 1940 on January 

18, 1941, the respondent could not acquire United States citizenship 

under the provisions of section 2172 of the Revised Statutes of the 

United States. 

Counsel urges that respondent is a United States citizen under 

section 314(a) or section 314(b) of the Nationality Act of 1940 or, 

in any event, under section 321 (a) (3) of the Immigration and Nationality Act. Section 314 of the Nationality Act of 1940 provides 

that a child born outside the United States of alient parents, or of 

an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen upon fulfillment of the 

following conditions : 

(a) The naturalization of both parents; or 

(b) The naturalization of the surviving parent if one of the parents 

is deceased; * * * 

(e) The naturalization of the parent having legal custody of the 

child when there has been a legal separation of the parents; and if- 

( d) Such naturalization takes place while said child is under the age 

of eighteen years; and 

(e) Such child * * * thereafter begins to reside permanently in the 

United States while under the age of eighteen years. 

Counsel concedes that the respondent is an illegitimate child and 

that there has never been any adjudication of paternity. He argues 

that in this case the mother is to be considered as the parent or that 

there should be a presumption of death of the putative father and that 

the surviving parent is the mother. He cites several cases dealing with 

legitimate children where the surviving parent was divorced with the 

right of custody which was sufficient for derivation of citizenship and 

another case involving a widowed mother who became a citizen while 

her legitimate child was a minor residing in the United States. 1 

It may be pointed out that the cited cases involve legitimate children 

and there is no evidence in the instant case that the mother is the 

surviving parent or that the putative father has died. 2In the report of 

the Committee on the Judiciary pursuant to Senate Resolution 137 it 

was recognized that under the 1940 Act a child born out of wedlock 

and never legitimated could not derive United States citizenship either 

through the naturalization of the putative father or through his 

1Petition of Boasky, 77 F. Supp. 832 (S.D. Mich., 1948) ; In re Graf, 277 F. 969 

(D. Md., 1922). 

Matter of D —W—M—, 9 L & N. Dee. 633 involved an adopted child and is 

not pertinent. 

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mother? 'However, in granting naturalization to a foreign born 

illegitimate child, who was born on July 13, 1944, was admitted to the 

United States for permanent residence on July 26, 1947 and whose 

mother became naturalized on September 1, 1950 petitioned for her 

illegitimate child under section 322 of the 1952 Act, the court by 

granting such naturalization indicated that automatic derivative 

citizenship would. not have been available to such a child under the 

1940 Act.4 

Counsel also urges that the respondent derived citizenship under the 

provisions of section 321(a) (3) of the Immigration and Nationality 

Act. This section provides for acquisition of citizenship upon the 

naturalization of the mother if the child was born out of wedlock and 

the paternity of the child has not been established by legitimization 

and if such naturalization takes place while such child is under the age 

of 16 years; and such child is residing in the United States pursuant to 

a lawful admission for permanent residence at the time of the naturalization of such parent or thereafter begins to reside permanently in the 

United States while under the age of 16 years. 

In Matter of L—,7 I. & N. Dec. 512, after first noting that under the 

Nationality Act of 1940 a child born out of wedlock did not derive 

citizenship through its mother, the facts were that the subject was 

born out of wedlock on April 1, 1938 in Martinique, the mother was 

naturalized on November 20, 1951 and the subject was admitted for 

permanent residence on December 4, 1953. In analyzing section 321(a) 

of the Immigration and Nationality Act, the following basic requirements were set forth: (1) that the parent or parents be naturalized; 

(2) that such naturalization take place while the child is under the 

age of 16 years; and (3) that the child take up lawful permanent residence in the United. States before reaching the age of 16 years. It was 

held that the subject acquired United Stales citizenship upon his 

lawful admission to the United States for permanent residence on 

December 4, 1953. Likewise, in Matter of T—, 7 L & N. Dee. 679, a 

child born out of wedlock was held to have acquired citizenship under 

section 321(a) of the Immigration and Nationality Act when she 

reentered the United States as a returning resident in 1955 prior to 

her 16th birthday, her mother having been naturalized a United States 

citizen in November 1952. It was held that the law in effect when the 

'Senate Report No. 1515, 81st Cong., 1st Sess., 708. Under section 102(h) of 

the 1940 Act (8 U.S.C. 502(h), 1942 ed.) the term "child" included a child legitimated -under the law of the child's residence or domicile whether in the United 

States or elsewhere; also a child adopted in the United States, provided such 

legitimation or adoption takes place before the child reaches the age of 16 years 

and the child is in the legal custody of the legitimating or adopting parent or 

parents. 

•.7a re Howard's Petition,147 F. Supp 676 (W.D. Mo. W.D., 1956). 

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last material condition is met is controlling; that one of the conditions 

of section 321 set forth in subsection (5) is that the child must begin 

to reside permanently in the United States or must have been lawfully 

admitted to the United States for permanent residence while under 

the age of 16 years. The original entry of the applicant in 1948, prior 

to the Immigration and Nationality Act. of 1952, did not operate to 

confer upon her any derivative citizenship under section 321(a) of 

the Act. However, her reentry in 1955 while she was still under 16 

years of age operated to confer derivative citizenship under section 

321(a) of the 1952 Act. 

In. Matter of L—, 8 I. & N. Dec. 272, the respondent, an illegitimate 

child, was born in Jamaica on September 21, 1938. He was lawfully 

admitted to the United States for permanent residence on June 2,1949 

when about 10 years of age. His mother was naturalised on December 

12, 1949 when respondent was 11 years of age. The Board quoted with 

approval the special inquiry officer's order that there was no doubt that 

under the law in effect at the time the respondent entered the United 

States and at the time of his mother's naturalization, section 314 of 

the Nationality Act of 1940 did not provide for derivation of United 

States citizenship through the naturalization of his mother because he 

was an illegitimate child. The Board then went on to restate the holding in Matter of L—, 7 I. & N. Dee. 512, that the basic requirements 

of section 321. of the 1952 Act were that: (1) the parents or parent 

be naturalized.; (2) such naturalization take place while the child is 

under the age of 16 years; and (3) the child takes up lawful permanent 

residence in the United States before reaching the age of 16 years. 

It was not necessarily the passage of the Act which was the last material condition but the fact that number two of the three material 

conditions is an. "open condition", a continuing situation, permitting 

the statute to bestow citizenship on respondent so long as he was under 

the age of 16 when the law was passed. The Board referred to the case 

of Espiadola v. Barber, 152 F. Supp. 829 (N.D. Cal., 1957), as not a 

binding precedent because Espindola was past 16 when the 1952 Act 

became effective and clearly could not have brought himself within 

the terms of section 321 of the Immigration and Nationality Act. 

The case of Espinclola v. Barber, supra, involved an alien illegitimate son, born. October 22, 1935 whose mother became a naturalized 

citizen on March 7, 1950. The plaintiff was lawfully admitted to the 

United States for permanent residence on September 4, 1943. The 

court then cited the legislative history contained in Senate Report No. 

1515, 81st Cong., 1st Sees., 708, for recognition of the fact that under 

the 1940 Act a child born out of wedlock and never legitimated could 

not derive United States citizenship under the naturalization of either 

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his father or mother. Turning to section 321(a) (3) of the Immigration and Nationality Act (8 U.S.C. 1243(a) (3) ), the court stated that 

it was clear that Congress intended to and did change the law in this 

regard in 1952 and did not intend, by the Act of that year, merely to 

restate what it thought the prior law had been. The court held that the 

1952 Act could not be construed as having retroactive effect by the 

broad language of the savings clause set forth in section 405 (Title 8 

U.S.C.A. 1101, note). It held that the language of the savings clause 

was broad enough to apply as well when the Government is relying 

on the provision; that the plaintiff, prior to the 1952 Act, had the 

"status" or "condition" of an alien not eligible to claim derivative citizenship and in view of the savings clause, section 321(a) (3) of the 

1952 Act could not operate to affect that "status" or "condition". The 

court cited United States v. Menaselte, 348 U.S. 528 and other cases 

and held that the savings clause could not operate to affect the plaintiff's "status" or "condition" and that the plaintiff was not a citizen 

of the United States. 

In the instant case the respondent was not eligible for derivative 

citizenship under the 1940 Act or any prior Act. The respondent was 

over 20 years of age when section 321(a) (3) of the Immigration and 

Nationality Act became effective on December 2/1, 1952. The Act had 

no retroactive effect and there was no status or condition to be affected 

by the savings clause inasmuch as the respondent was an alien under 

prior law and could not benefit by the new Act because he was then 

overage. It is concluded that alienage has been established. 

The crimes which form the basis of the specification in the order 

to show cause are simple robbery for which the respondent was convicted in September 1955 in Colorado and statutory rape in violation 

of Conneetieut statutes for which the respondent was convicted on 

March 22, 1900. The crimes were committed respectively on August 

29, 1955 and January 10, 1960. From the very nature of the crimes 

and the interval in time and locale of their commission, it is obvious 

that they did not arise out of a single scheme of criminal misconduct. 

Counsel at oral argument raises the contention that the record of 

the crime in Colorado did not establish a conviction. He does not dispute the fact that the crime involves moral turpitude. However, the 

record of conviction shows that on September 26, 1955 in the District 

Court in and for the City and County of Denver, Colorado the court 

found that the evidence sustained the plea of guilty entered by the 

defendant; that the cause was continued for hearing on the probation 

report; that on September 28, 1955 the court granted the petition of 

the defendant that he be placed on the county work gang for a period 

of 90 days and further ordered that the cause be continued for hearing 

on probation; that on December 21, 1959, the court after hearing and 

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the report of the probation officer, ordered that imposition of sentence 

be suspended -for a period of five years, the court to retain jurisdiction 

until that time, and that defendant be released from custody. 

The main force of counsel's argument is that the action of the court 

in suspending the imposition of sentence for five years and placing 

respondent upon probation did not result in such a finality of conviction as would sustain the order of deportation, citing Pino v. Landon, 

349 U.S. 901 (1955), as well as certain other Colorado eases. At the 

outset it may be noted that the order to show cause is predicated upon 

the second section of section 241(a) (4) which renders deportable an 

alien who at any time after entry is convicted of two crimes involving 

moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of 

whether the convictions were in a single trial. It may be noted that 

the statute, 39-16-6 Colorado Revised Statutes of 1958, empowers the 

court to grant probation and provides that the period of probation 

together with any extension thereof shall not exceed five years. 

The deportation statute does not make confinement the test of deportability but concerns itself with conviction solely. In one of the 

cases cited by counsel 5it was held that in a criminal ease the sentence 

is the judgment and that a. judgment need not be entered upon a 

verdict. 

The matter involved in the hearing has been the subject of previous 

adjudication. In the latest case of Marino Gutierrez v. Immigration 

and Naturalization Service, No. 18565 (9th Cir., October 11, 1968), 

there was involved an alien who was convicted in California on a narcotic charge, was found guilty by the court which ordered a probation 

report and continued proceedings; thereafter the court suspended proceedings and placed the petitioner on probation_ On review the petitioner contended that the Immigration Service erred in determining 

that the appellant had been convicted of a crime which subjected him 

to deportation and erred in. finding that the proceedings upon which 

the appellant was found guilty had reached such finality that an order 

of -deportation could be predicated thereon. The court noted that the 

statute required only a conviction and not a, judgment of conviction 

and that under California law the word "convicted" signified the status 

of a person after entry of a plea of guilty to a criminal charge or 

against whom a verdict of guilty of a criminal charge has been returned by a jury; and the phrase "a judgment of conviction" means the 

imposition of a sentence upon a person who has been convicted of a 

criminal charge after a plea of guilty or the rendition of a guilty 

a Loos v. People, 268 P. 536. 

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verdict" The court also shared the views expressed in ArrellanoFlores v. Hoy, 262 F. 2d 667 (9th Cir., 1958), cert. den. 362 U.S. 921, 

that it was inclined to believe that perhaps here Congress intended to 

do its own defining rather than leave the matter to the variable state 

statutes. Credence for this view can be found in the fact that the 

present statute reads "convicted" while its predecessor read "convicted 

and sentenced." It 'would appear that federal courts have generally 

taken the view that a plea of guilty or finding of guilty, which is in 

repose and remains undisturbed amounts to a conviction. The court 

went on to distinguish the case of Pino v. Landon, 349 U.S. 901, which 

involved a. Massachusetts procedure within which the petitioner had 

the right to a trial de novo in the superior court if he took an appeal 

from the District Court, the District Court suspended the imposition 

for one year and placed the sentence on file with the crucial difference 

that if the court ever removed the case from file to require the petitioner to serve the sentence, be would then he entitled to a de novo 

review on appeal. The court held that under these circumstances, 

especially the availability of the de novo review, there was no adjudication which could be recognized as final in Massachusetts that the 

petitioner had committed any crime. 

In the instant case there was a conviction pursuant to the respondent's plea of guilty which was appealable. It was not necessary that a 

judgment of conviction be entered upon the verdict of guilty. The 

difference from the situation existing in the case of Pino v. Landon, 

supra, is obvious. 

The administrative decision cited by counsel, Matter of J—, 7 1. & N. 

Dec. 580, concerned a case in Florida in which the court had postponed 

imposition of sentence. The decision noted that unlike the cases which 

suspended imposition of sentence which have been held to constitute a 

final conviction, this postponement of imposition of sentence did not 

support a finding of deportability. 

Later administrative decisions have recognized that for deportation 

purposes a conviction exists where the following elements are present: 

(1) if there has been a judicial finding of guilt, (2) the court takes 

action which birings the case in the category of those which are pending 

for consideration by the court—the court orders that the defendant be 

fined or incarcerated or the court suspends the imposition of sentence, 

and (3) the action of the court, is considered a. conviction by the state 

court for at least some purpcise. 7It is concluded that in the instant 

Citing Adams v. United States, 299 F. 2d 327 (9th 01r., 1962) ; HernandezVatensudos v. Rosenberg, 304 F. 2d 639 (9th 01r., 1932) ; Zabanazad v. Rosenberg, 306 F. 2d 861 (9th Mr., 1962). 

Matter of L—R—, 8 L & N. Dec. 209; Matter of M—D—, 9 1. & N. Dec. 172; 

Matter of R—R—, 7 1. & N. Dee. 478. 

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ease the conviction for simple robbery in Colorado meets this test of 

finality of conviction. The second conviction, of statutory rape in 

Connecticut, clearly involves moral turpitude also. It is concluded 

that the charge contained in the order to show cause is sustained. 

The respondent is not eligible for adjustment of status pursuant to 

section 945 of the Immigration and Nationality Act because he was 

originally lawfully admitted for permanent residence and subsequently 

became deportable, a fact which does not vitiate his prior lawful 

entry.2He is ineligible for voluntary departure because the crime 

of rape was committed in January 1960, within the five-year period for 

which good moral character must be established.° 

The respondent has a, citizen wife and two citizen minor children. 

However, he has been separated front his wife for two years. Tho 

separation was caused by respondent's drinking and gambling and his 

wife did not know of his arrest for statutory rape. However, she 

indicates a willingness to give him another chance seven though the 

respondent has contributed but little to her support. However, as has 

already been. pointed out, the respondent is not eligible for discretionary relief. The appeal will be dismissed. 

ORDER : It is ordered that the appeal be and the same is hereby 

dismissed. 

'Matter of Da. gava, Int. Dee. No. 1288. 

° Section 101(f) (3) of the Immigration. and Nationality Act (8 U.S.C. 

1101(f) (3))- 

408