Interim Decision #1632 

MATTER or RoarArrnrA-Hanisnos 

In Deportation Proceedings 

A-3925805 

Decided by Board August OR, 1986 

Since Article IV of the Federal Penal Code of Mexico provides for the prosecution in Mexico of crimes committed in foreign territory by a national' 

of Mexico where uie violation of law would also be a crime in Mexico, 

respondent's conviction in Mexico of possessing morphine and codeine, in 

violation of Article 194 .of. the Federal Penal Code of Mexico, constitutes 

a conviction within the meaning of section 241(a),(11) of the Immigration 

and Nationality Act, as amended, notwithstanding the crime of which he 

was convicted wasvommitted in the United States. . 

CHARGES: 

Order: 'Act of 1952—Section 241(a) (2) [8 U.S.Q. 1251(a)'(2)3—Entered 

without inspection. (1) 

Lodged: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)3—Excludable at time of entry—convicted of issuing a check 

without sufficient funds. (2) 

Act or x982—Section 241(a) (11) its U.S.C. 1251(a) (11)3—Convicted of violating narcotics law. (3) 

Act of 1952—Section 241(a) (I) [8 U.S.C. 1251(a) (1)1—Excludable at time of entry—convicted of robbery. (4) 

Act of 1052--Section 251(a) (1) IS 1251(a) (1)] Excludable 

at time , of entry—convicted of crime involving 

moral turpitude, to wit, robo. (5) 

Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable 

at time of entry—No Immigrant visa. (5) 

The case comes forward on appeal from 'the order 'of the special 

inquiry officer dated April 7, 1966 ordering that the respondent be 

deported from the United States to Mexico on all of the charges 

shown in the caption, except charges (2) and (4). 

The respondent was born on January 13, 1913 at Guaymas, Sonora, Mexico, the illegitimate child of Francisco Lopes Romandia and 

Catalina Herreros (Ex. 8). He was admitted to the United States 

for permanent residence on May 1926 and last entered the United 

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Interim Decision #1632 

States on July 15, 1959 after replying in the affirmative to the 

inspecting immigration officer's question of -whether he was an "American." The special inquiry officer, who had an opportunity to observe 

the demeanor of the respondent while answering and was the best 

judge of credibility, refused to accept his explanation that by stating 

he was an American he did not intend to represent that he was a 

citizen of the United. States but meant that he was not an African 

or European, found the respondent was aware that he was using 

the term "American" in the vernacular sense and was in fact asserting that he was an American citizen. 

The special inquiry officer, in his order of October 23, 1903 found 

the respondent deportable on the charge stated in the order to show 

cause; and also found the respondent deportable under section 241 

(a) (11) of the Immigration and Nationality Act because of his 

conviction on December 14, 1957 in the First District Court of the 

State of Jalisco, Mexico of possessing morphine and codeine in 

violation of Article 194 of the Penal Code of Mexico for which he 

was sentenced one year and eight months in the penitentiary. The 

offense of which he was convicted was actually committed in the 

United States and on January 13, 1955, while living in Sacramento, 

California, respondent was indicted in Superior Court in and for 

the County of kteramento on two counts under section 11500 of the 

Health and Safety Code for unlawfully possessing codeine and for 

unlawfully possessing morphine; however, while out on bail, he left. 

for Mexico and extradition proceedings instituted by the State of 

California were unsuccessful because he was a Mexican national. 

The special inquiry officer found, despite the respondent's denial, 

that the record showing conviction. on March 28, 1057 in the Fifth 

Criminal Court, Guadalajara, Jalisco, Mexico of the crime of "Robe", 

and sentence to seven months in the penitentiary and fine of 200 

pesos related to the respondent because of the identifying information contained in the record of conviction. However the special 

inquiry officer did. find him not deportable on. the robbery charge at 

that time inasmuch as he was not able to determine whether the 

respondent was convicted of burglary, theft or larceny. In addition, 

the special inquiry officer did not sustain the charge based upon conviction of issuing a check without sufficient funds in the State of 

California because of the expungement of the record of conviction 

under section 1203.4 of the California Civil Code. 1 

1 Since we iind the respondent otherwise deportable, we deem it unnecessary 

to dwell upon this point 
Interim Decision #1632 

Subsequent -to the order of the special inquiry officer on October 

23, 1963 counsel for the respondent filed' a. motion raising for 'the 

first time respondent's claim to United States citizenship and questioning whether the order of deportation can be sustained as a matter 

of law based upon the Mexican conviction of violating the narcotics 

law. On April 10, 1964 the special inquiry officer denied the motion 

to reopen. On. June 26, 1964 we withdrew the outstanding order of 

the special inquiry officer and ordered the proceedings reopened to 

explore the issue as to citizenship and to examine the ground of 

deportability based upon the foreign conviction for a crime committed in the United States. 

In deportation proceedings a person claiming United States citizenship. who admits he was born abroad is prima fade an alien and 

must meet the burden of proof in establishing his claim to citizenship? The respondent's mother testified that she married the respondent's father in Mexico on March 18, 1910 (no documentary 

evidence of marriage) ; that her husband was born in. Florence,. 

Arizona and always claimed to have been a native born citizen, but 

she was unable to find documentary evidence of his birth in Arizona. 

She testified she and her husband had always told the respondent 

that his father was born in Florence, Arizona. The respondent 

testified -that he had often heard his mother: and father say that 

his father was born in the United States. He admitted however that 

he had never told anybody that his father was born in this country_ 

The Service introduced sworn statements taken from the respondent on September 1, 1914 and October 2, 1961' in which he stated 

that his father was born in Mexico. The immigrant visa which the 

respondent presented when he was admitted to the United States for 

permanent residence on May 29,1926 contains the respondent's birth . 

certificate and shows that in registering the respondent's birth his 

father stated that he himself was born in Guaymas, Sonora, Mexico. 

The mother's immigration visa with which she was admitted for 

permanent residence on May '29, 1926 with the respondent states 

that she was a widow and that her husband. had been born at 

Guaymas, Sonora, Mexico. 

The special inquiry officer finds it unbelievable that the respondent 

would have consistently stated to the Service that his father was 

born in Mexico if he lam-, as he claims he has known for a long 

time, that his father was born in the United States. The mother's 

testimony that her husband told her he was born in the United States 

was refuted by the statement appearing in. 'her immigration visa. 

. - 

'Matter of A—M--, 7i. &N. Dec. 332. 

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Interim Decision #1682 

The respondent has not been able to produce any documentary or 

other evidence of his father's birth in the United States aside from 

the testimony of his mother. The special inquiry officer stated that 

he carefully observed the respondent and mother while they were 

testifying and it was obvious from their demeanor that they were 

lying. The finding of credibility by the trier of facts of the case 

who has had the opportunity of observing the witnesses is entitled 

to great weight. The allegation that the respondent's father was 

deported from Mexico to the United States about 1917 as a United 

States -citizen could not be verified inasmuch as a search of the 

immigration records was negative. Counsel's complaint, regarding 

the destruction and subsequent unavailability of Service records is 

an internal Immigration, Service matter and not properly before 

this Board. In view of the evidence in Service records showing the 

father was born in Mexico as against the uncorroborated testimony 

of the respondent and his mother, which the special inquiry officer 

has found incredible, it is concluded that alienage has been established. 

Counsel contends that the respondent's conviction in Mexico for 

an offense that was committed in the United States constitutes a 

conviction in absentla. The record. relating to the conviction of the 

respondent' on December 4, 1957 in the First District Court of the 

State of Jalisco, Mexido of possessing morphine and codeine in 

violation of Article 194 of the Federal Penal Code of Mexico shows 

that the Court had personal jurisdiction of the respondent. The 

conviction therefore can not be regarded as a conviction fin, absentia 

in which the convicting court does not have jurisdiction over the 

respondent.' The respondent was convicted in Mexico after a trial 

at which he was present with counsel. Article IV of the Federal 

Penal Code of Mexico provides for the prosecution in Mexico of 

crimes committed in foreign territory by a national of Mexico where 

the violation of laws' would also be a crime in Mexico. We conclude 

that the respondent was properly convicted in Mexico and that the 

Mexican conviction constitutes a ground of deportability under section 241(a) (11) of the Immigration and Nationality Act.* 

The special inquiry officer has found that the respondent was convicted in Mexico on March 28, 1957 of the crime of "Robe". Upon 

reexamination of the record of conviction,' t was established. that 

spare vehicle parts had been stolen from Casa Ford, that respondent 

had entered the Ford establishment, that the missing parts were 

Gee Ela panto Scorner, 1743 Pea. 408 (R D. Wash. 1909). 

' Cf. Matter of Aciatno, 10 I. & N. Dec. 593. 

775 
Interim Decision *1632 

found in the back of a restaurant he operated and that he had been 

offering them for sale (Ex. 5, "0" and "P"; Ex. 6). The offense 

of "Bobo" has been translated in the record of conviction as robbery. 

Under the circumstances in the ease we agree with the conclusion of 

the special inquiry officer that the conviction of "Bobo" is a conviction of a crime involving moral turpitude and that he is deportable 

on the fifth lodged charge. We also concur in the finding of deportability upon the sixth lodged charge. 

The respondent is a. long time resident of the United. States, having been admitted for permanent residence on May 29, 1926. The 

respondent is married to a, United States citizen and has one child 

of this marriage. He hid previously been married in 1936 and had 

. six children as a result of this marriage. Respondent's -wife is employed as a waitress while he is employed as a cook. He claims that 

he has a heart condition and has had four or five heart attacks. In 

addition to the crimes previously discussed and set forth in the order 

to show cause, the respondent has been convicted of battery; contempt of court, drunk driving and failure to provide. Upon the 

record, discretionary relief is not available to the respondent. The 

appeal will be dismissed. 

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

dismissed. 

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