Interim Decision #2619

MATTER OF YEUNG

In Deportation Proceedings
A-16031948
Decided by Board October 12, 1977
When an alien, in deportation proceedings, submits an application for preference status
under section 203(a)(7) of the Immigration and Nationality Act in conjunction with an
application for adjustment of status under section 245 of the Act, the decision as to
whether the alien should be granted preference status is made by the District Director,
and the immigration judge acted improperly in denying the section 245 application
before the alien had received written notification of the denial of his petition.
CHARGE:

Order. Act of 1952—Section 241(a)(2) t8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained
longer
ON BEHALF OF SERVICE:
Paul C. Vincent

ON BEHALF OF RESPONDENT:
Jules E. Coven, Esquire
Lebenkott & Coven
One East 42nd Street
New York, New York 10017

Appellate Trial Attorney

BY: Milhollan, Chairman; Wilson, Maniatis, Appleman, and Maguire, Board Members

In a decision dated November 15, 1976, an immigration judge found

the respondent deportable under section 241(a)(2) of the Immigration
and Nationality Act as a nonimmigrant hi transit who had remained
longer than authorized, ordered him deported, but granted him the
privilege of voluntary departure in lieu of deportation. He also denied
the respondent's application for adjustment of status pursuant to section 245 of the Act. The respondent has appealed from that denial. The
record will be rernanded.

The respondent is a 29-year-old native and citizen of China who last
entered the United States on or about January 31, 1975, as an alien in
transit with a visa authorized to remain in the United States until March
1, 1975. He remained beyond that time. At the deportation hearing the
respondent admitted that the allegations of fact in the Order to Show
Cause were true, but denied that he was deportable as charged. The
innnigration judge however found that, based upon his admission of the
truth of the allegations of fact, his deportability as charged had been
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Interim Decision #2619
established by clear, convincing, and unequivocal evidence. We agree.
The hearing was then continued so that the respondent could submit an
application for adjustment of status pursuant to section 245 of the Act as
a refugee under section 203(a)(7).
In order to establish eligibility for adjustment; of status under section
245 of the Act, a respondent must establish both that he is admissible to
the United States and that there is an immigrant visa immediately
available to him. Although the Department of State Visa Availability
Bulletin indicated that there were seventh-preference visas available at

the time of the reconvened hearing, the respondent's petition for refugee status had not been approved and the Government trial attorney
stated that the District Director had denied the petition and the decision
was being mailed to the respondent. The immigration judge told the
respondent that he -would proceed with the hearing on the application
for adjustment of status; however, he also stated that he would reopen
the proceedings on his own motion if the application was later approved
by the District Director.
On the Notice of Appeal, Form I-290A, the respondent gave several
issues upon which he was basing his appeal. However, at oral argument

before this Bo'ard he stated that he was appealing only from the fact that
the immigration judge denied his application for adjustment of status
before he had received written notification of the denial of his petition
for seventh-preference status. The respondent stated that he believed
that a petition for preference status under section 203(a)(7) of the Act
could not be considered unless an application for adjustment of status
was pending and that, therefore, the immigration judge should not have
denied the section 245 application until the respondent had received
written notification of the denial of his petition for the seventh-preference status. The respondent stated at oral argument that he had still not
received a copy of that decision.
The Code of Federal Regulations specifies that an applicant for adjustment of status under section 245 of the Act who claims to be entitled
to preference status under section 203(a)(7) of the Act should execute
and attach to his application for adjustment of status a Form I-590A,
Application for Classification as a Refugee under the Proviso to section
203(a)(7), Immigration and Nationality Act. See 8 C.F.R. 245.4. The

determination as to whether an alien is entitled to this preference is
made by the District Director. The Immigration and Naturalization
Service Operations Instructions provide for the processing of such application, and under these instructions if the District Director finds that
an alien should not be granted preference status under section 203(a)(7)
of the Act, he is to notify the alien applicant on a Form I-290C of this
finding and certify the case to the Regional Commissioner (Operations
Instructions 245.8(b)(5)).
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Interim Decision #2619
The respondent, in the present case, claims never to have been
notified that his application for preference status under section 203(a)(7)
was denied by the District Director and the record contains no evidence
of such a denial or that the case was certified to the Regional Commissioner as required. Since there is nothing in the record which indicates
that the respondent was informed that his application for preference

status under section 203(a)(7) of the Act was denied or that other
required procedures were followed, we shall remand the case to the
immigration judge so that he may hold the case in abeyance until such
time as all necessary procedures have been completed, and can then
hold a new hearing.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with this decision.

372


Cite as 27 I&N Dec. 251 (BIA 2018)

Interim Decision #3923

Matter of Jose MARQUEZ CONDE, Respondent
Decided April 6, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The Board of Immigration Appeals’ holding in Matter of Pickering, 23 I&N Dec. 621
(BIA 2003), rev’d on other grounds, Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006),
regarding the validity of vacated convictions for immigration purposes, is reaffirmed, and
the decision is modified to give it nationwide application. Renteria-Gonzalez v. INS, 322
F.3d 804 (5th Cir. 2002), not followed.
FOR RESPONDENT: Belinda Arroyo, Esquire, Fort Worth, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Dan Gividen, Deputy Chief
Counsel
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; MANN and KELLY,
Board Members.
ADKINS-BLANCH, Vice Chairman:

In a decision dated May 24, 2017, an Immigration Judge found the
respondent removable under section 212(a)(6)(A)(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as an alien who is
in the United States without being admitted or paroled, and pretermitted
his application for cancellation of removal under section 240A(b)(1) of the
Act, 8 U.S.C. § 1229b(b)(1) (2012). The respondent has appealed from
that decision. The Department of Homeland Security (“DHS”) and the
respondent have filed a joint brief in support of the appeal. The appeal will
be sustained, and the record will be remanded to the Immigration Judge.
The respondent is a native and citizen of Mexico who entered the United
States at an unknown time and place. On June 14, 2016, he was convicted
of a theft offense in Texas, but he subsequently filed a motion for a new trial,
which was granted. On February 14, 2017, the State’s motion for permission
to dismiss the criminal action was granted and the case was dismissed.
In a hearing before the Immigration Judge, the respondent conceded
removability and applied for cancellation of removal. Counsel for the
respondent and the DHS filed a joint brief arguing that the respondent’s
conviction had been vacated based on a substantive defect in the underlying
criminal proceeding and was therefore no longer a “conviction” for
immigration purposes. Notwithstanding the arguments of the parties and the
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Interim Decision #3923

evidence they presented, the Immigration Judge found the respondent to be
statutorily ineligible for cancellation of removal under section 240A(b)(1)(C)
of the Act because his conviction was for an offense under section
212(a)(2)(A)(i)(I). The Immigration Judge relied on Renteria-Gonzalez
v. INS, 322 F.3d 804, 812–13 (5th Cir. 2002), in concluding that a vacated
conviction remains valid for immigration purposes regardless of the reason
for the vacatur.
In Renteria-Gonzalez, the United States Court of Appeals for the Fifth
Circuit reasoned that because Congress was silent regarding vacated
convictions when it defined the term “conviction” in section 101(a)(48)(A)
of the Act, 8 U.S.C. § 1101(a)(48)(A) (2000), it did not intend to include an
exception for vacated convictions. Id. at 813. However, as the parties have
noted on appeal, Judge Benavides issued a concurring opinion in
Renteria-Gonzalez, stating that he disagreed with the majority’s analysis
because it “paint[ed] with too broad a brush with respect to whether a vacated
conviction falls within the purview of the definition” of a conviction. Id. at
820 (Benavides, J., specially concurring). Although he agreed with the
result, Judge Benavides asserted that “any indication in the majority opinion
that a conviction vacated based on the merits constitutes a conviction under
[section 101(a)(48)(A) of the Act] is entirely dicta in that the case at bar did
not involve such a vacatur.” Id. at 823 n.4. He therefore concluded that he
would distinguish the vacatur in that case “from cases involving convictions
vacated because of a defect in the criminal proceedings.” Id. at 822.
Subsequent to Renteria-Gonzalez, we issued our decision in Matter of
Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other grounds, Pickering
v. Gonzales, 465 F.3d 263 (6th Cir. 2006), where we held that if a court
vacates an alien’s conviction because of a procedural or substantive defect,
rather than for reasons solely related to rehabilitation or immigration
hardships, the conviction is eliminated for immigration purposes. In this
regard, we concluded that
there is a significant distinction between convictions vacated on the basis of a
procedural or substantive defect in the underlying proceedings and those vacated
because of post-conviction events, such as rehabilitation or immigration hardships.
Thus, if a court with jurisdiction vacates a conviction based on a defect in the
underlying criminal proceedings, the respondent no longer has a “conviction” within
the meaning of section 101(a)(48)(A). If, however, a court vacates a conviction for
reasons unrelated to the merits of the underlying criminal proceedings, the
respondent remains “convicted” for immigration purposes.

Id. at 624. Moreover, noting that the majority opinion in Renteria-Gonzalez
“indicates that a vacated federal conviction remains valid for purposes of
the immigration laws irrespective of the reasons why the conviction was
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Interim Decision #3923

vacated,” we declined to adopt the Fifth Circuit’s reasoning in cases arising
outside of its jurisdiction. Id. at 624 n.2; see also Matter of Adamiak, 23 I&N
Dec. 878, 880 (BIA 2006).
Significantly, with the exception of the Fifth Circuit, our interpretation of
the term “conviction” and our approach to determining whether a vacated
conviction remains valid for immigration purposes has been adopted by
every court that has addressed the issue. See Viveiros v. Holder, 692 F.3d 1,
3 (1st Cir. 2012) (noting that circuit courts have “uniformly” followed this
rationale); see also Andrade-Zamora v. Lynch, 814 F.3d 945, 948 (8th Cir.
2016); Dung Phan v. Holder, 667 F.3d 448, 452–53 (4th Cir. 2012); Saleh
v. Gonzales, 495 F.3d 17, 21–25 (2d Cir. 2007); Nath v. Gonzales, 467 F.3d
1185, 1188–89 (9th Cir. 2006); Pickering, 465 F.3d at 266; Cruz v. Att’y Gen.
of U.S., 452 F.3d 240, 245 (3d Cir. 2006); Alim v. Gonzales, 446 F.3d 1239,
1249–50 (11th Cir. 2006); Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1128–29
(10th Cir. 2005); Ali v. Ashcroft, 395 F.3d 722, 728–29 (7th Cir. 2005).
Moreover, as the respondent and the DHS have argued on appeal, the
Fifth Circuit has expressed concerns over its decision in Renteria-Gonzalez.
The majority in that case maintained that “five circuits, including this court,
have concluded that a vacated or otherwise expunged state conviction
remains valid” for purposes of the immigration laws. Renteria-Gonzalez,
322 F.3d at 814. However, in Discipio v. Ashcroft, 369 F.3d 472, 474 (5th
Cir. 2004), vacated on reh’g, 417 F.3d 448 (5th Cir. 2005), the court noted
that none of those cases “hold or imply that a conviction vacated because of
procedural or substantive flaws is a conviction under the [Act.] These cases
support the proposition . . . that a conviction vacated for rehabilitative
purposes remains valid under the [Act].” Id. at 474.
Addressing the concern raised in Renteria-Gonzalez that the “unbridled
discretion of federal judges” may threaten the uniform application of the
immigration laws, the court in Discipio noted that “[w]hen a court vacates a
conviction because of defects in the underlying criminal proceeding, . . .
it is not exercising ‘unbridled discretion,’ but enforcing the statutory and
constitutional rights that ensure fair treatment of criminal defendants.” Id. at
475 (quoting Renteria-Gonzalez, 322 F.3d at 814). The court considered the
majority’s interpretation of the term “conviction” in Renteria-Gonzalez to be
so broad that “an immigrant convicted of certain offenses is removable even
if that conviction is vacated by an appellate court for insufficient evidence,
procedural errors, or constitutional violations.” Id. Adding that “a person
completely exonerated by the courts may nonetheless face removal as a
convicted criminal,” the court concluded that it “should interpret statutes to
avoid results so patently absurd and constitutionally questionable.” Id.
(citations omitted); accord Alim, 446 F.3d at 1250; Renteria-Gonzalez, 322
F.3d at 822 (Benavides, J., specially concurring). However, the court
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Interim Decision #3923

determined that it could not “revisit Renteria-Gonzalez” because “no
subsequent panel may overrule the decisions of another panel or hold that a
prior decision applies only on the limited facts set forth in that opinion.”
Discipio, 369 F.3d at 475.
In response to the alien’s petition for rehearing en banc in Discipio, the
Government advised the court that it was “prepared to modify its position,”
apply Matter of Pickering, and terminate the proceedings “because [the
alien’s] conviction was undisputedly vacated for procedural and substantive
defects.” Discipio, 417 F.3d at 449–50. The court therefore granted the
Government’s motion to remand for the purpose of terminating the
proceedings. The court also noted that “[w]ith respect to other deportation
proceedings arising or within the jurisdiction of this Court or that may be
pending on appeal,” the Government was “undertaking a policy review to
determine how it will proceed in those cases.” Id. at 450.
Subsequently, in Gaona-Romero v. Gonzales, 497 F.3d 694, 694 (5th Cir.
2007) (per curiam), the Fifth Circuit noted that, pursuant to its policy review,
the Government had “concluded that it would not seek that removal decisions
be upheld pursuant to Renteria, but rather would request remand to the
[Board] so that the government could take action in accord with Pickering.”
The court therefore acceded to the request of both parties and remanded the
record so the Government could “follow through on its pledge to withdraw
the charge of removability” pursuant to Pickering. Id. at 695.
However, because the Fifth Circuit has not overruled or modified its
holding in Renteria-Gonzalez, the danger of inconsistent decisions persists.
See Garcia-Maldonado v. Gonzales, 491 F.3d 284, 291 (5th Cir. 2007)
(acknowledging that Renteria-Gonzalez is inconsistent with the holdings of
the circuits that apply Matter of Pickering but declining to follow our
decision in that case because it “is not the law in this circuit”). Under these
circumstances, we find it appropriate to consider whether to continue to
follow Renteria-Gonzalez in the Fifth Circuit.
As noted, the majority in Renteria-Gonzalez, 322 F.3d at 813, found that
Congress’ silence regarding vacated convictions in section 101(a)(48)(A) of
the Act “strongly implies” that it that did not intend to include any exception
for a vacated conviction in the statutory definition. However, it does not
appear that the court considered the language in section 101(a)(48)(A)
as plain on its face in this regard. Id. at 812 (“Although it may seem
counterintuitive, the text, structure and history of the [Act] suggest that a
vacated federal conviction does remain valid for purposes of the immigration
laws.” (emphasis added)); see also id. at 822 (Benavides, J., specially
concurring) (agreeing with the majority “[t]o the extent this statement
acknowledges that the plain language of [section 101(a)(48)(A)] does not

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Interim Decision #3923

provide that a conviction vacated on the merits remains valid for immigration
purposes”).
The Supreme Court has held that where a statute is silent or ambiguous,
an agency’s interpretation should be given deference if it is based on a
permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc. (“Chevron”), 467 U.S. 837, 843 (1984). The Court
has emphasized that the Chevron principle of deference must be applied to
an agency’s interpretation of ambiguous statutory provisions, even where a
court has previously issued a contrary decision and believes that its
construction is the better one, provided that the agency’s interpretation
is reasonable. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.
(“Brand X”), 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction
of a statute trumps an agency construction otherwise entitled to Chevron
deference only if the prior court decision holds that its construction follows
from the unambiguous terms of the statute and thus leaves no room for
agency discretion.”); see also Holder v. Martinez Gutierrez, 566 U.S. 583,
591–98 (2012); Matter of M-H-, 26 I&N Dec. 46, 49 (BIA 2012).
Pursuant to Chevron and Brand X, we find that section 101(a)(48)(A) of
the Act, which defines the term “conviction” for immigration purposes, is
silent regarding the effect of a vacated conviction on an alien’s immigration
status. Therefore, we will reaffirm our holding in Matter of Pickering
and reiterate that we interpret the definition of a “conviction” to include
convictions that have been vacated as a form of post-conviction relief—for
example, for rehabilitative purposes—and we will continue to give them
effect in immigration proceedings. However, we consider convictions that
have been vacated based on procedural and substantive defects in the
underlying criminal proceeding as no longer valid for immigration purposes.
In addition, to promote national uniformity in the application of the
immigration laws, we will now respectfully apply Matter of Pickering, which
we have applied in every circuit except for the Fifth Circuit, on a nationwide
basis. In this regard, we modify Pickering insofar as it exempts the
application of its holding in cases arising in the Fifth Circuit. See Matter of
Pickering, 23 I&N Dec. at 624 n.2. Accordingly, the respondent’s appeal,
with which the DHS concurs, will be sustained. The record will be remanded
to the Immigration Judge for consideration of the respondent’s application
for cancellation of removal and any other form of relief or protection from
removal for which he may be eligible.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

255


Interim Decision #2611

MATTER OF MARTINEZ

In Deportation Proceedings
A-22380631
Decided by Board August 26, 1977
(1) Respondent conceded deportability under section 241(a)(2) of the Immigration and
Nationality Act, but contested #le immigration judge's denial of his application for
voluntary departure.
(2) On May 4, 1976, respondent was convicted of a violation of 18 U.S.C. 473. A necessary
element for a conviction under 18 U.S.C. 473 is intent to defraud, and in a crime in
which fraud is an ingredient, moral turpitude attaches.
(3) By virtue of this conviction, respondent falls within the class of persons described in
section 212(a)(9) of the Act and he cannot establish that he has been a person of good
moral character for the period required in section 101(f)(3) of the Act. Therefore, he is
statutorily ineligible for voluntary departure under section 244(e) of the Act.
CI HA R 41P.•

Order Act of 1952—Section 241(a)(2) [8 U.S. C. 1251(a)(2))—Entry without inspection
ON BEHALF OF RESPONDENT: Pro se
/3Y: Milhollan, Chairman; Wilson, Appleman, and Maguire, Board Members

The respondent appeals from a decision of an immigration judge dated
October 7, 1976. In his decision the immigration judge found the respondent deportable under section 241(a)(2) of the Immigration and
Nationality Act, denied his application for voluntary departure and
ordered his deportation to Ecuador.
The respondent is a native and citizen of Ecuador. He entered the
United States without inspection_ He was convicted on May 4, 1976, of
violating 18 U.S.C. section 473.
18 U.S.C. section 473 provides:

"Whoever buys, sells, exchanges,
transfers, receives, or delivers any false, forged, counterfeited, or altered obligation or other security of the United States, with the intent
that the same be passed, published, or used as true and genuine, shall
b e fined not more than $5,000 or imprisoned not more than ten years, or
b oth." The respondent was found guilty of the offense described in this
section because he aided, abetted, counseled, commanded, procured and
induced the transfer and delivery of 210 counterfeit ten dollar Federal
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Reserve notes with the intent that the same be passed, published and
used as true and genuine knowing the same to be forged.
At the hearing the respondent admitted the allegations of fact and
conceded deportability. The only issue on appeal is the denial of the
respondent's application for voluntary departure.
The immigration judge properly found the respondent statutorily
ineligible for the privilege of voluntary departure. The respondent is
barred from showing good moral character during the period of time
required by section 244(e) of the Act.
Section 101(f)(3) of the Act prevents any alien from being regarded as
a person of good moral character if he falls within the class of persons
described in section 212(a)(9) of the Act, if the offense described therein,
for which such alien was convicted, was committed during the period for
which good moral character must be established.
A necessary element for a conviction under 18 U.S.C. section 473 is
intent to defraud. United States v. Wilkerson, 469 F.2d 963 (5 Cir.
1972), cert. denied 410 U.S. 986 (1973). Moral turpitude attaches to
crimes where fraud is an ingredient. Jordan v. De George, 341 U.S. 223
(1951). Accordingly, the respondent was convicted of a crime involving
moral turpitude and he fails within the class of persons excludable under
section 212(a)(9) of the Act. He is unable to establish good moral character during the five-year period required by section 244(e) of the Act
since he committed that crime on January 19, 1976. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.

337


Interim Decision #2574

MATTER OF QUISPE
In Visa Petition Proceedings
A-18R80757

Decided by Board March 30, 1977
(1) In order for a child (petitioner) to confer immigration benefits on a parent (beneficiary),
petitioner must first qualify as a child under section 101(b)(1) of the Immigration and
Nationality Act, and beneficiary must qualify as a parent under section 101(b)(2) of the
Act.
(2) Petitioner was born out of wedlock but his father acknowledged him within a few
weeks of his birth in 1939 as provided in Article 350 of the Peruvian Civil Code.
However, petitioner's parents never married_ Article 314 of the Peruvian Civil Code
provides that legitimation of children born out of wedlock takes place by subsequent
marriage of the parents or by judicial declaration after a petition has been filed by the
legitimating parent. Legitimation and illegitimate paternal filiation are two separate
procedures under the Peruvian Civil Code which have different legal consequences.
Article 762 of the Peruvian Civil Code distinguishes between legitimate and illegitimate
children for purpoece of inheritance. Acknowledgment of paternity before a civil regio

trar does not appear to convert the status of an illegitimate child to that of a legitimate
one. Under these circumstances petitioner was never legitimated under the law of Peru
and cannot qualify as a child under section 101(b)(1)(C) of the Act.
(3) Petitioner cannot qualify as an adopted child under section 101(b)(1)(E) of the Act
because he was over the age of 14 when the beneficiary adopted him.
(4) Since the petitioner cannot qualify as the child of the beneficiary as required by the
Act, the visa petition filed in behalf of his father was properly denied.
OM BEHALF OF PETITIONER: Joseph A. Bonis, Esquire
8630 Fenton Street
Silver Spring, Maryland 20910
BY: Milhollan, Chairman; Wilson, Maniatis, and Appleinan, Board Members

The United States citizen petitioner has appealed from an order of the
District Director, dated March 16, 1976, denying a visa petition on
behalf of his alleged natural father. The appeal will be dismissed.
'The beneficiary is a 72-year-old male, native and citizen of Peru. He
evidently supported the petitioner until the petitioner achieved financial
independence. The petitioner, a 38-year-old male native of Peru, has
submitted a translation of a document which states that the beneficiary
a-ppeared before a civil registrar in Peru and acknowledged the petitioner as his illegitimate son. This acknowledgment of paternity oc174

Interim Decision #2574
curred on December 1, 1939, several weeks after the birth of the
petitioner. It is undisputed that the beneficiary and the mother of the
petitioner never married. As additional evidence of the claimed relationship, the petitioner has submitted a certified copy of an adoption
order issued by the Circuit Court of Montgomery County, Maryland, and
dated June 10, 1975, which states that the beneficiary has adopted the
petitioner as his heir at law and next of kin.
One who seeks immigration benefits on behalf of a parent must establish that he, the petitioner, qualifies as a child under the Act. Section
101(b)(2) of the Act. The petitioner is concededly not a legitimate child;
therefore, he must show that a parent-child relationship exists by virtue
of adoption or legitimation.
It is apparent that the petitioner cannot qualify as the adopted child of
the beneficiary since he was adopted when he was over the age of 14
years. See section 101(b)(1)(E) of the Act.
Under section 101(b)(1)(C), a child legitimated before the age of 18
years according to the law of the child's or the father's residence or
domicile qualifies as a child for the purposes of the Act. The child must
also have been in the legal custody of the legitimating parent or parents
at the time of legitimation.
The issue here is whether the act of acknowledging paternity of an
illegitimate child constitutes legitimation under the law of Peru. The
petitioner has submitted a translation of the provisions of the Civil Code

of Peru prepared by the counsel for the Embassy of Peru in the United
States, relating to paternal illegitimate filiation. See Appendix A.
We have received a memorandum from the Library of Congress,
dated March 8, 1977, in which the provisions of the Civil Code of Peru
relating to legitimation are explained and set forth. See Appendix B.
Article 350 of the Civil Code states that recognition and statement of
paternity are the only means of proof of illegitimate paternal filiation.
Article 354 provides that recognition of illegitimate children shall be
filed in the birth registry or by public writing or by will. If an illegitimate child is acknowledged by the father in this manner he is entitled to
bear the father's name according to Article 361.
The provisions of the Peruvian law dealing with legitimation are set
forth elsewhere in the Civil Code. Article 314 of the Civil Code provides
that legitimation of children born out of wedlock is accomplished either
by the subsequent marriage of the parents or by judicial declaration
after a petition has been filed by the legitimating parent.
It is evident that legitimation and illegitimate paternal filiation are
two separate procedures under Peruvian law which have different legal
consequences. The Civil Code does distinguish between legitimate and
illegitimate children and with regard. to inheritance from a common

parent. See Article 762 of the Civil Code of Peru (Appendix A). Acknowl175

Interim Decision #2574
edgment of paternity before a civil registrar apparently does not convert the status of an illegitimate child to that of a legitimate one
according to the Civil Code of Peru. Compare Matter of Sinclair, 13 I. &
N. Dec. 613 (BIA 1970). We conclude that the petitioner has not been
legitimated in accordance with the law of Peru.
Since the petitioner has failed to establish that he qualifies as a child

under the Act, the beneficiary cannot receive immigration benefits as
his parent. While recognizing the sympathetic aspects of this case, we
must agree with the District Director's decision denying the petition.
Although we are dismissing the appeal, we note that, in view of the
beneficiary's advanced age, he may not be required to comply with the
labor certification requirement if he wishes to apply for an immigrant

visa. See Matter of Gomez, Interim Decision 2545 (BIA December 20,
1976).
ORDER: The appeal is dismissed.
APPENDIX A
TRANSLATION

Peruvian Civil Code
Art. 348. Children born out of wedlock are considered to be illegiti-

mate .
Art. 350. Recognition and statement of paternity are the only means
of proof of illegitimate paternal filiation.
Art. 354. Recognition of illegitimate children shall be filed in the birth
registry or by public writing or by a will.
Art. 361. An illegitimate child will bear the father's or the mother's
name, according to who recognizes him, or the father's name if both
recognize the child.
Art. 761. If all children are legitimate or if all children are illegitimate,
they shall inherit in equal parts.
Other descendents, solely or together with children shall inherit according to lineage.
Art. 762. If there are legitimate and illegitimate children, each of the
latter shall receive one-half of what each legitimate child receives.
APPENDIX B
TRANSLATION

Peruvian Civil Code*
Art. 314. Legitimation of children born out of wedlock takes place:
M. Balarezo Gamarra, C6digo Civil Peruano (Editorial Juris, Lima, 1974).

176

Interim Decision #2574—Appendix
1. By the subsequent marriage of the parents, in which case legitimation of the affected children takes place ipso jure.
2. By judicial declaration.
Art. 316. The subsequent marriage of the parents legitimates their
children even when such marriage is void, provided that at least one of
the spouses married the other in good faith.
Art. 319. To obtain legitimation by judicial declaration, the following
requirements must be met:
1. Legitimation by subsequent marriage is not possible;

2. The petitioner—either the father or the mother—must not have
legitimate children of his or her own, children legitimated by subsequent marriage of the parents, or descendants thereof;
3. The father must have no other acknowledged children or descendants thereof by the same mother, unless he legitimates all of them.
Art. 320. Children older than 18 years of age shall not be legitimated
by judicial declaration without their consent.
Art. 321. The petition for legitimation by judicial declaration may be
filed by one or both parents.
Also a child whose mother or father has died nr has become disabled
may file the petition for legitimation by himself, provided that said
father or mother has stated previously in a will or public instrument his
or her intention to legitimate the child.

177


Interim Decision #2536

MATTER OF GONZALEZ

In Deportation Proceedings
A-20997563
Decided by Board October .12, 1976
(1) In this proceeding respondent refused to testify except to give his name, and the
Service introduced a Form 1-130 (Petition to Classify Status of Alien Relative) which
had been submitted on behalf of respondent by his wife. The contents of the form and
accompanying documents were read into the record and the respondent's wife was
called to testify.
(2) The application and documents were admissible because the name thereon was identical with the name of the respondent. Where respondent stood mute at hearing, it was
proper for the immigration judge to permit the wife's testimony on the Form 1-130
application because the wife merely identified the 1-130 application and because the
application and documents may stand alone as evidence even without such identification.
(a) Argument of respondent's counsel that the hearings were improper because the arrest
was illegal and that the evidence adduced at hearing should be suppressed is rejected
where the only evidence introduced was the Form 1-130 and documents submitted
voluntarily prior to respondent's arrest, and the wife's Identifying testimony. Documents in the prior possession of the Service cannot be tainted by any illegality in a
subsequent arrest.
(4) While the burden to establish alienage to establish deportation proceedings is upon the
Government, a person born abroad is presumed to be an alien and must go forward with
the evidence to establish United States citizenship or a legal right to be in the United
States under section 291 of the Immigration and Nationality Act. By his silence,
respondent failed to meet his burden to show the manner of his entry and the presumption arises that he is in the United States in violation of law. Absent evidence to negate
that presumption, the alien is deemed to be in this country in violation of law and the
burden of proof requirements to show deportability by clear, convincing and unequivocal evidence are met.
CEARGE:
Orden Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Entered without inspection
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Laurier B. McDonald, Esquire
P. O. Drawer 54
Edinburg, Texas 78539

Richard M. Casillas, Esquire
Trial Attorney

This is an appeal from the immigration judge's decision of April 18,
1075. The immigration judge refused to terminate the proceedings and

found the respondent deportable_ The appeal will be dismissed.
44

Interim Decision #2536
The record relates to a married male alien, a native and citizen of
Mexico, who is 24 years of age. He is charged with having entered the
United States without inspection near Hidalgo, Texas, on or about
February 15, 1975.
The respondent moved to quash the Order to Show Cause on the basis
that the respondent was arrested without a warrant and that therefore

the proceedings are illegal. His motion was denied. He also requested
that certain witnesses be subpoenaed. His request for subpoenas was
denied.
The respondent refused to testify at the hearing, except to give his
name; he cited the privilege against self-incrimination under the Fifth
Amendment to the United States Constitution. The Service introduced
a Form 1-130 [Petition to Classify Status of Alien Relative] which had
been submitted on behalf of the respondent by his wife. The contents of
the form and accompanying documents were read into the record, and
the respondent's wife was called to testify. The respondent's birth
certificate, which was one of the documents, indicated birth in Mexico.
Counsel objected to the wife's testimony on the ground that spouses
cannot be compelled to testify against one another. The objection was
overruled. In her testimony, the respondent's wife merely identified the
1-130. The Service rested. The immigration judge, relying upon section
291, found that the respondent was deportable. Section 291 provides
that
In any deportation proceeding tinder chapter 5 against any person, the burden of proof
shall be upon such person to show the time, place and manner of his entry into the
United States . . . If such burden of proof is not sustained, such person shall be
presumed to be in the United States in violation of law.

Upon appeal, counsel renews his arguments raised below. He claims
that the proceedings were defective and should have been terminated,
because, he claims, the respondent was arrested -without a warrant.
Exhibit 1 is labelled: Order to Show Cause and Warrant for Arrest of
Alien. There is nothing in the record, and nothing has been offered,
which supports counsel's assertion that a warrant was not obtained

prior to the arrest of the respondent.
Complaint is made that subpoenas were not granted for various
witnesses. One of the individuals for whom a subpoena was sought was
present in the anteroom and was not called as a witness by either side.
The immigration judge ruled correctly that no subpoena was necessary
for that witness. There is no showing that the testimony of other
individuals for whom subpoenas were sought was necessary either.
Counsel stated that he wished to question them concerning whether the
respondent was arrested without a warrant. He does not claim that

their testimony would support his assertion that no warrant was ob45

Interim Decision #2536
tamed. The immigration judge properly refused counsel's request for
subpoenas. It appears that counsel wished to go on a fishing expedition
in his questioning; there is no showing that the testimony of the witnesses requested was necessary in these proceedings.
One who raises a question concerning- the legality of the evidence
must come forward with proof establishing a prima facie case before the
Service will be called upon to assume the burden of justifying the
manner in which it obtained its evidence, Matter of Tang, 13 I. & N. 691
(BIA 1971). Statements in a motion for suppression must be specific and
detailed, based on personal knowledge; they must set forth a prima fade
ease, Matter of Wong, 13 I. & N. 822 (BIA 1971). Here, no statement
has been presented which establishes a prima facie case of any illegality.
Counsel has not actually moved to suppress evidence acquired in
connection with the arrest. He admitted at the hearing that the evidence in this record was not obtained as a result of the arrest, (Tr. 27 &
28). He argues, rather, that the hearings were improper, because the
arrest was illegal and that, therefore, all evidence adduced at the hearing
should be suppressed. However, evidence in the prior possession of the
Service cannot be said to be tainted by any illegality connected with a
subsequent arrest, Matter of Y au, Interim Decision 2272 (BIA 1974),
Matter of Wong, supra. In order to apply the exclusionary rule, there
must be a claim that tainted evidence was, or would be, introduced into
the record. Here the sole evidence introduced was the Form I--120 and

the testimony of the respondent's wife identifying that form. The 1-130
had been voluntarily submitted by the parties prior to the respondent's
arrest. It was not in any way tainted by any illegality concerning the
arrest.
Counsel's contention that the proceedings should be terminated because they are tainted by the claimed illegal arrest is also without merit.
Even if an alien's arrest were technically defective, subsequent deportation proceedings, otherwise lawful, would not thereby be vitiated,
U.S. ex rel. Bilokumsky v. Tad, 263 U.S. 149 (1923); Avila-Gallegos v.
INS, 525 F.2d 666 (2 Cir. 1975); Guzman-Flores v_ INS, 496 F.2d 1245 (7

Cir. 1974); Huerta-Cabrera v. INS, 466 F.. 2d 759 (7 Cir. 1972); La Franca
-

v. INS, 413 F.2d 686 (2 Gin 1969); Matter of Li Interim Decision 2451

(BIA 1975).
Counsel argues that the wife's testimony should have been excluded
because it violates the husband-wife privilege, and that the failure to
exclude it rendered the proceedings defective. The wife, by her testimony, did no more than to authenticate her own application. Her
testimony is not essential, in any event, and it may be entirely disregarded, for the Form 1-130 and accompanying documents may stand
alone as evidence. Even without identification by the maker, the application and accompanying documents are admissible, for there is identity
46

Interim Decision #2536
of name with the name of the respondent, Vlisidis v. Holland, 245 F.2d
812 (3 Cir. 1957).
The birth certificate accompanying the Form 1-130 indicates that the
respondent was born abroad. One born abroad is presumed to be an
alien. U.S. ex rel. Rongetti v. Neelly, 207 F.2d 281-284 (7 Cir. 1953);
Matter of Pvnco, Interim Decision 2826 (BIA 1974); Matter of
Tijerina-Villarreal, 13 I. & N. Dec. 327 (BIA 1969); Matter of A—M—,
7 I. &. N. Dec. 332 (BIA 1956). While the burden to establish alienage in
a deportation proceeding is upon the Government, a person born abroad
is presumed to be an alien and must go forward with the evidence to
establish any claim to United States citizenship, Matter of TijerinaVillarreal, supra.
The respondent has not advanced a claim to United States citizenship.
He has not claimed any legal right to be in the United States. Once it is
established that the subject of a deportation proceeding is an alien,
section 291 of the Act requires that person to justify his presence in the
United States, see AU v. Haff, 114 F.2d 369 (9 Cir. 1940); Bhagat Singh
v. McGrath,104 F.2d 122 (9 Cir. 1939), cert. denied Bhagat Singh v.
Haff, 308 U.S. 629 (1940); Vlisidis v. Holland, 150 F. Supp. 678 (ED Pa
1957); Matter of Fereira, Interim Decision 2251 (BIA 1973). The respondent by his silence cannot avoid the burden by resting upon the
Fifth Amendment, De Lucia v. Flagg, 297 F.2d 58 (7 Cir. 1962), cert.
denied 369 U.S. 837 (1962) Vlisidis v. Holland, supra. [245 F.2t1];

Gonsalves-Rosa v. Shaughnessy, 151 F. Supp. 906 (SD NY 1957);
Viisdis v. Holland, supra. [150 F. Supp.]. He has not been prejudiced in
any way because of his invocation of the Fifth Amendment. The fact of
alienage was established separately. No inference need be drawn from
his invocation of that privilege. We find simply that by his silence he has
not met his burden to show the manner of his entry, and that the
presumption of section 291—that he is in the United States in violation of
law—arises. In the absence of any evidence to negate the presumption,
the alien is deemed to be here in violation of law, and the burden of proof
requirements set forth in'VVoodby v. INS, 285 U.S. 276 (1966) have been
met, see Matter of Fereira, supra.

ORDER: The appeal is dismissed.

47


Cite as 27 I&N Dec. 173 (BIA 2017)

Interim Decision #3909

Matter of Alex Pieniazek OBSHATKO, Respondent
Decided November 17, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Whether a violation of a protection order renders an alien removable under section
237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii)
(2012), is not governed by the categorical approach, even if a conviction underlies the
charge; instead, an Immigration Judge should consider the probative and reliable evidence
regarding what a State court has determined about the alien’s violation. Matter of Strydom,
25 I&N Dec. 507 (BIA 2011), clarified.
FOR RESPONDENT: Ramon E. Rivera, Esquire, Syracuse, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Robert P. Levy, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and GREER, Board Members.
PAULEY, Board Member:

In a decision dated September 7, 2016, an Immigration Judge terminated
these removal proceedings, finding that the respondent is not removable
under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act,
8 U.S.C. § 1227(a)(2)(E)(ii) (2012), as an alien who has violated a protection
order. The Department of Homeland Security (“DHS”) has appealed from
that decision. The appeal will be sustained, the removal proceedings will be
reinstated, and the record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Uzbekistan whose status was
adjusted to that of a lawful permanent resident on February 6, 2015. On
March 9, 2015, the respondent was convicted of criminal contempt under
section 215.51(b)(iii) of the New York Penal Law after it was determined
that he had violated an order of protection issued by a State court requiring
him to stay away from a woman and her family. 1
1

At the time of the respondent’s offense, section 215.51(b)(iii) of the New York Penal
Law provided in relevant part as follows:

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Interim Decision #3909

Based on this offense, the DHS initiated removal proceedings against the
respondent, charging him with removability under section 237(a)(2)(E)(ii) of
the Act. In support of the charge, the DHS submitted various documents,
including a presentence report, a report regarding the respondent’s violation
of probation, a letter from a prosecutor, and sworn statements from the
respondent’s victims. Because these documents are not part of the
respondent’s record of conviction, the Immigration Judge determined that
they could not be considered in analyzing the respondent’s removability
under the categorical and modified categorical approaches. Applying these
approaches, the Immigration Judge concluded that the respondent’s statute
of conviction was overbroad and that he is not removable under section
237(a)(2)(E)(ii) based on his conviction for criminal contempt.
On appeal, the DHS argues that the Immigration Judge should not have
employed the categorical and modified categorical approaches in deciding
whether the respondent is removable. According to the DHS, it is
appropriate to apply the circumstance-specific approach in analyzing
removability under section 237(a)(2)(E)(ii) of the Act. The respondent
asserts that the Immigration Judge properly terminated the proceedings after
applying the categorical and modified categorical approaches.

II. ANALYSIS
Section 237(a)(2)(E)(ii) of the Act provides as follows:
Any alien who at any time after admission is enjoined under a protection order
issued by a court and whom the court determines has engaged in conduct that violates
the portion of a protection order that involves protection against credible threats of
violence, repeated harassment, or bodily injury to the person or persons for whom
the protection order was issued is deportable. For purposes of this clause, the term
“protection order” means any injunction issued for the purpose of preventing violent
or threatening acts of domestic violence, including temporary or final orders issued
by civil or criminal courts (other than support or child custody orders or provisions)
whether obtained by filing an independent action or as a pendente lite order in
another proceeding.

A person is guilty of criminal contempt in the first degree when:
...
(b) in violation of a duly served order of protection, . . . he or she:
...
(iii) intentionally places or attempts to place a person for whose protection such order
was issued in reasonable fear of physical injury, serious physical injury or death
when he or she communicates or causes a communication to be initiated with such
person . . . .

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Interim Decision #3909

While we recognize that a conviction may result from an alien’s violation
of a protection order, as it does in this case, the plain language of section
237(a)(2)(E)(ii) makes clear that a “conviction” is not required to establish
an alien’s removability. See Demarest v. Manspeaker, 498 U.S. 190 (1991)
(“When we find the terms of a statute unambiguous, [the] inquiry is complete
except in rare and exceptional circumstances.”); Matter of Briones, 24 I&N
Dec. 355, 361 (BIA 2007). The issue before us, therefore, is whether the fact
of an alien’s conviction requires the application of the categorical
and modified categorical approaches in determining removability under
section 237(a)(2)(E)(ii), even though the statutory language clearly indicates
that no conviction is necessary for the alien to be removable. 2
The categorical approach is “[r]ooted in Congress’ specification of
conviction, not conduct, as the trigger for immigration consequences.”
Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Because Congress did not
require a “conviction” under section 237(a)(2)(E)(ii) of the Act, we conclude
that it did not intend an alien’s removability under that section to be analyzed
under either the categorical or modified categorical approach. Given the
limitations that the categorical approach places on the evidence that may be
considered in determining an alien’s removability, to hold otherwise would
produce anomalous results. For example, if the categorical approach applies
to an alien who was convicted of violating a protection order, under certain
circumstances he may be entitled to a more favorable outcome than an alien
whose violation did not result in a conviction.
We find support for our conclusion in decisions of the circuit courts that
have examined this issue. For instance, the United States Court of Appeals
for the Seventh Circuit held that “neither the categorical approach nor
the modified categorical approach controls” the analysis of an alien’s
removability under section 237(a)(2)(E)(ii) because, unlike other provisions
of the Act, the “text of [that section] does not depend on a criminal conviction
but on what a court ‘determines.’” Garcia-Hernandez v. Boente, 847 F.3d
869, 872 (7th Cir. 2017); see also Hoodho v. Holder, 558 F.3d 184, 189 n.2
(2d Cir. 2009) (noting that “[n]ot every removability provision requires
application of the ‘categorical approach’ or the ‘modified categorical
approach’” and declining to decide whether these approaches apply to
section 237(a)(2)(E)(ii)). 3 We agree with the Seventh Circuit that “[w]hat
2

Several grounds of removability may be supported by, but do not require, a conviction.
See, e.g., section 212(a)(2)(C)(i) of the Act, 8 U.S.C. § 1182(a)(2)(C)(i) (2012) (relating to
persons believed to be illicit traffickers in controlled substances); section 212(a)(2)(D)
(pertaining to prostitution); section 212(a)(6)(E)(i) (relating to alien smuggling).
3
In Hoodho, the Second Circuit, in whose jurisdiction this case arises, applied the
modified categorical approach in rejecting an alien’s contention that his record of

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Interim Decision #3909

matters” in analyzing an alien’s removability under this provision “is simply
what the state court ‘determined’ about [the alien’s] violation of the
protection order.” Garcia-Hernandez, 847 F.3d at 872.
We do not agree, however, with the DHS’s argument that we should
apply the “circumstance-specific” approach in evaluating the respondent’s
removability. That approach applies only when a portion of a criminal
ground of removability is not subject to the categorical approach. See, e.g.,
Nijhawan v. Holder, 557 U.S. 29, 40 (2009) (holding that the categorical
approach is not applied to the monetary threshold in section 101(a)(43)(M)(i)
of the Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2012), which is assessed based on
the “the specific circumstances surrounding an offender’s commission of a
fraud and deceit crime”). Unlike the ground of removability at issue in
Nijhawan, the entire ground we consider here is not subject to a categorical
analysis. Thus, a circumstance-specific approach is inapposite. Instead, the
plain language of section 237(a)(2)(E)(ii) limits the analysis of an alien’s
removability to what a court has “determined” about the alien’s violation of
a protection order. See Garcia-Hernandez, 847 F.3d at 872; Cespedes
v. Lynch, 805 F.3d 1274, 1278 (10th Cir. 2015) (holding that section
237(a)(2)(E)(ii) only requires an Immigration Judge to find that a State court
determined that the alien’s “conduct violated the terms of the order” and that
those terms “involve[d] protection against credible threats of violence”).
Nevertheless, in practical terms, the result in this case may be the same
under the circumstance-specific approach, since both the specific
circumstances surrounding an alien’s violation and what a court has
“determined” regarding that violation may be established through any
reliable evidence. See Matter of H. Estrada, 26 I&N Dec. 749, 753 (BIA
2016) (“Under the circumstance-specific approach in immigration
proceedings, all reliable evidence may be considered, including documents
that comprise the formal ‘record of conviction.’”); see also Matter of D-R-,
25 I&N Dec. 445, 458 (BIA 2011) (“In immigration proceedings, the ‘sole
test for admission of evidence is whether the evidence is probative and its
admission is fundamentally fair.’” (citation omitted)), remanded on other
grounds, Radojkovic v. Holder, 599 F. App’x 646 (9th Cir. 2015).
We therefore hold that whether a violation of a protection order renders
an alien removable under section 237(a)(2)(E)(ii) of the Act is not governed
by the categorical approach, even if a conviction underlies the charge.
Instead, an Immigration Judge should consider the probative and reliable
evidence regarding what a State court has determined about the alien’s
conviction failed to establish his removability. Hoodho, 558 F.3d at 189í90. However,
we do not read that case as requiring the use of either the categorical or modified categorical
approach in this case, because the alien’s argument there assumed that these approaches
governed the application of section 237(a)(2)(E)(ii). Id. at 189.

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Interim Decision #3909

violation. In so doing, an Immigration Judge should decide (1) whether a
State court “determine[d]” that the alien “has engaged in conduct that
violates the portion of a protection order that involve[d] protection against
credible threats of violence, repeated harassment, or bodily injury” and
(2) whether the order was “issued for the purpose of preventing violent or
threatening acts of domestic violence.” Section 237(a)(2)(E)(ii) of the Act.
In reaching this conclusion, we clarify our decision in Matter of Strydom,
25 I&N Dec. 507 (BIA 2011). Like the respondent, the alien in that case was
convicted of violating a protection order. Although the applicability of the
categorical approach was not at issue, we presumed that it applied and
determined that the alien’s conviction rendered him removable under section
237(a)(2)(E)(ii). 4 However, the applicability of the categorical approach is
squarely at issue here, and we now conclude that this approach is not
applicable where an alien’s removability under section 237(a)(2)(E)(ii) must
be determined. Accordingly, we will not apply the categorical approach in
this or any future cases involving section 237(a)(2)(E)(ii) of the Act.
Consequently, the Immigration Judge erred in applying the categorical
approach to determine that the respondent’s conviction for criminal contempt
does not render him removable under section 237(a)(2)(E)(ii). We will
therefore vacate the Immigration Judge’s decision to terminate the
proceedings and will remand the record for further consideration of the
respondent’s removability. On remand, the Immigration Judge should admit
and consider all the probative and reliable evidence that relates to the
respondent’s violation of the protection order and accord it the appropriate
weight. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
2006) (holding that the weight given to documentary evidence “‘lie[s]
largely’ within the discretion” of the Immigration Judge (citation omitted)).
Accordingly, the DHS’s appeal will be sustained, the removal proceedings
will be reinstated, and the record will be remanded for further proceedings.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

4

Likewise, we applied the categorical approach to the prostitution ground in section
212(a)(2)(D) of the Act in Matter of Gonzalez-Zoquiapan, 1'HFí %,$
2008), because the only evidence of removability was the alien’s conviction documents.

177


MATTER OF J—J-

In DEPORTATION Proceedings
A-8874489
Decided by Board June 5, 1961
Deportability—Effect of dismissal with prejudice of action under section 503,
Nationality Act of 1940.
(1) Court's dismissal with prejudice of respondent's suit for declaratory iudement pursuant to section 503 of the Nationality Act of 1940 constitutes
adjudication of his claim to citizenship on its merits.
(2) Respondent having been admitted with certificate of Identity In nonimmigrant status for sole purpose of pursuing section 503 action, that action
having been concluded adversely to him on the merits. and respondent haying failed to depart on notice, further proof of alienage is not required to
establish his deportability on "remained longer" charge.
Ctr.ealon :

Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (211—After admission as a nonimmigrant, who instituted court action under section 503 of the Nationality Act of 1940, remained longer than
permitted.

BEFORE THE BOARD

DISCUSSION: The issue in this case is whether respondent is
deportable as charged. The appeal, which is by the examining
officer of the Service, is from a decision of the special inquiry officer on February 28, 1961, terminating the proceedings on the ground
that the government has failed to establish alienage. The appeal
will be sustained.
The evidence herein on the issue of alienage is set forth in the
special inquiry officer's opinion. Respondent, a 32 year old male
-

-

-

subject, a native of China (born 6-18-28), alleges that he is the
son of J—T—, a United States citizen. The relationship of the
subject to the alleged father, although claimed, has never been conceded by the United States Government. The alleged father and
alleged paternal grandfather are conceded to be United States citizens. The subject and the alleged father have testified in the
hearing. The subject asserted a claim to derivative citizenship under section 1993, Revised Statutes, as a defense to deportation.
320

The subject's nnly entry to the United States occurred on October 30, 1951, when he was admitted in the nonimmigrant visitor
status (section 3(2), Immigration Act of 1924), at San Francisco,
California, for the specified purpose of seeking a declaratory judgment in a suit filed pursuant to section 503, Nationality Act of
1940, to establish that he is a United States national. The civil
action had been filed July 30, 1951, in the United States District
Court, District of Columbia, entitled Jib Jeung v. Auheaxn, (Civil
Action 3108-51). The subject presented a certificate of identity
issued by the United State3 Consul at Hong Kong, B.C.C., on October 9, 1951, predicated on the allegation that he had been denied
a right or privilege as a United States citizen. He had been refused a United States passport on January , 9, 1951. He had
also established that suit (under section 503, Nationality Act of
1940) to determine that he is a United States national had been
filed in the -United States and was pending. He was admitted for
the duration required to conclude the civil action, subject to the
conditions and stipulations in the certificate of identity. The special inquiry officer stated in the premise that the subject is deportable if alienage is established. He reached the conclusion,
following a complete summarization of the evidence, that alienage
has not been established. On that finding the proceedings were
ordered terminated.
The examining officer is of the opinion that the facts and documents in the record establish the respondent, foreign born, is prima
fade an alien; that he was admitted to the United States in the
nonimmigrant status to pursue his claim to United States citizenship in the courts; that he failed to litigate his suit or take any
action to establish his claim, and permitted the suit to be dismissed
by the court with prejudice; and that the evidence he has presented here is insufficient to overcome the fact that he was prima
fade an alien at time of entry. Matter of A-211—, 7-332. The
examining officer has noted that the United States consuls in Canton, China, and Hong Kong, B.C.C., were unconvinced of respondent's identity and the claimed relationship to the alleged father.
Service counsel joins the examining officer in the request to reverse the decision of the special inquiry officer. He has emphasized
that the dismissal of the civil action with prejudice on June 4,
1953, in which the subject submitted no evidence to substantiate his
claim to United tatos nationality, was, in effect, tantamount to a

determination of the issue on its merits and that, as a matter of law
and precedent, the government is not required to prove alienage in
this proceeding which is for the purpose of directing the subject's
321
654377-63-22

deportation, the same or similar to action taken by the Board in
Matter of TV—K----TV—, 9-235. 1
We hold that the government is not required to weigh and
evaluate the evidence in this proceeding to determine the issue of
alienage. To resolve the question of United States citizenship, this
respondent, who was unable to prove to the United States consul

abroad that he was a citizen, has had recourse to declaratory judgment proceedings in the United States (28 U.S.C. 2201). The judgment by the court "dismissed with prejudice," is in substance an
adjudication of the issue (case) on its merits? The recital in this
1 In a similar proceeding to determine a similar issue,
Wong Ho v. Dulles,
261 F.2d 456, the U.S. District Court, after considering the evidence of both
the plaintiff and defendant, held that a Chinese subject had not established
that he was a United States national. That decision, adverse to the plaintiff's claim, affirmed on appeal, constituted an adjudication of the issue on its
merits and alone required the respondent's deportation in subsequent ex -pul&ion pr aedings. Matter of W—H—W—, 9-235 (B.I.A., 1961). Unlike the
instant case, when dismissal of an action is voluntary, by the filing of a
stipulation signed by all parties appearing in the action, the dismissal is
without prejudice and not an adjudication on the merits unless otherwise
stated in the notice of dismissal. (Rules of Civil Procedure, Rule 41(a) (1)).
See also Matter of T—, 8-244 (B.I.A., 1959).
2 Rules of Civil Procedure
Rule 41—DISMISSAL OF ACTIONS

a. VOLUNTARY DISMISSAL; EFFECT THEREOF.

(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(c),
of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a
motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.
Unless otherwise stated in the notice of dismissal or stipulation, the dismissal
is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any
court of the United States or of any state an action based on or including
the same claim. [As amended Dec. 27, 1946, effective March 19, 1948.]
(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as
the court deems proper. If a counterclaim has been pleaded by a defendant
prior to the service npnn him of the plaintiff's motion to dismiss, the artinn
shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless
otherwise specified in the order, a dismissal under this paragraph is without
prejudice.
b. INVOLUNTARY DISMISSAL: EFFECT THEREOF. For failure of the
plaintiff to prosecute or to comply with these rules or any order of court, a
defendant may move for dismissal of an action or of any claim against him.
• * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule,
other than a dismissal for lack of jurisdiction or for improper venue, operates
as an adjudication upon the merits. [As amended Dec. 27, 1916, effective
March 19, 1948.]

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decision of the import of the court judgment in declaratory judgment proceedings, adequately disputes and overcomes any claim to
citizenship asserted by the respondent.
We have stated the subject presented at time of entry a certificate of identity issued by the United States Consul in Hong Kong,
B.C.C. That document, authorized by section 503, Nationality Act
of 1940 (8 U.S.C. 903, now repealed), contained the subject's sworn
statements to the effect that if granted the certificate for admission and the final outcome of the civil action should be adverse to
his claim to citizenship, he would be subject to deportation if he
failed to depart forthwith. Section 503, supra, also provided that
a condition of the subject's admission to the United States would be
that he should be subject to deportation if the civil action was adverse to his claim to United States nationality. We have recited
the import of the judgment. Respondent has been notified to depart
but has failed to do so. Admitted as a noncitizen he hasasremained
longer than permitted and is deportable as charged. h _
It is ordered that the decision of the special inquiry
officer on February 28, 1961, terminating this proceeding, be withdrawn.
It is further ordered that the appeal he sustained and that the
respondent be deported in the manner provided by law on the charge
contained in the order to show cause.

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