Interim Decision #2884

MATTER OF RAMIREZ-RIVERO

In Exclusion Proceedings
A-23224918
Decided by Board October 5,1981
(1) In order for a foreign conviction to serve as a basis for a finding of inadmissibility, the
conviction must be for conduct deemed criminal by United States standaids.
(2) An act of juvenile delinquency is not a crime in the United States and an adjudication
of delinquency is not a conviction for a crime within the meaning of the Immigration
and Nationality Act.
(3)The standards established by Congress, as embodied in the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. 5031 et seq.. as amended by the Juvenile Justice and
Delinquency Prevention Act of 1574, Pub. L. 93 -415, 88 Star- 1133 (effective September 7,

1974), govern whether a foreign offense is to be considered a delinquency or a crime
by United States standards.
(4)The FJDA defines a "juvenile" as "a person who has not attained his eighteenth
birthday,. or for the purpose of proceedings and disposition under this chapter for en

alleged act of juvenile delinquency, a person who has not attained his twenty-first
birthday," and "juvenile delinquency" as "the violation of a law of the United States
conunitted•y a person prior to his eighteenth birthday which would have been a crime
if committed by an adult." 18 U.S.C.
(5) Pursuant to section 5032 of the FJDA, 18 U.S.C. 5032, any juvenile within the jurisdiction of the federal courts alleged to have committed an act of juvenile delinquency
while under 16 years of age is not subject to criminal prosecution as an adult, regardless
of the nature of the offense or the potential punishment, but rather is entitled to benefit
from the protective and rehabilitative provisions of the FJDA unless he waives his right,
in writing upon advice of counsel, to such treatment.
(6) Inasmuch as the Board will not presume that a juvenile would opt to forego his right
to be proceeded against as a delinquent in favor of criminal prosecution, the applicant's
breaking and entering theft committed when he was 13 years of age, though treated as a
crime inCuba, may not as a matter of law be deemed criminal by United States standards
and therefore is not an excludable offense under section 212(a)(9) of the Immigration
and Nationality Act, 8 U.S.C. 1182(a)(9).
EXCLUDABLE:
Order: Act of 1952—Sec. 212(aX9) [8 U.S. C. 1182(a)(9)1 Convicted of a crime involving
moral turpitude
Sec. 212(a)(20) [8 U.S.C. 1182(a)(20))—Inunigrant not in possession
of valid unexpired visa or other valid entry document
ON BEHALF OF APPLICANT: Richard Berley, Esquire
600 First Avenue
Seattle, Washington 98104
BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members
135

Interim Decision #2884
This case is before us on appeal from a decision of an immigration
judge dated October 21, 1980, which found the applicant excludable,
denied his requests for asylum and relief under section 243(h) of the
Immigration and Nationality Act, 8 U.S.C. 1253(h),,' and ordered him
excluded and deported from the United States. The appeal will be
dismissed.
The applicant is a 21 year old native and citizen of Cuba who arrived
-

-

in this country by' boat at Key West, Florida, in June 1980, as part of the
Cuban "Freedom Flotilla." He was paroled into the United States for
deferred inspection. Shortly after his arrival in this country, the applicant made certain admissions on the basis of which he was given notice
of his possible excludability under section 212(a)(9) of the Act, 8 U.S.C.
1182(a)(9), as an alien who has been convicted of a crime involving moral
turpitude, and under section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20),
as an immigrant without a valid visa or other entry document. His
parole status was subsequently terminated and he was placed in these
exclusion proceedings.
At his exclusion hearing, the applicant testified tliat he came to thin
country for the purpose of residing here permanently but conceded that
he lacks the requisite documentation. The applicant further testified
that he had been convicted in Cuba for entering an unoccupied private
home and stealing some arms, a large quantity of clothing, and some
combs, having entered the house during the daytime by pushing open a
door.2 He explained that he had stolen the arms not to use as weapons
but to sell; he insisted that he stole solely to provide necessities for
himself and his family. The applicant was 13 years old at the time of the
offense. He had served 6 or 7 years of a 20-year prison sentence imposed
puisuant to his conviction for that offense when released for the purpose
of joining the Cuban boat life
At the conclusion of the hearing, the immigration judge determined
that the applicant is excludable under section 212(a)(20) of the Act. We
agree. Mettler of Castellon, 17 I&N Dec. 616 (BIA 1981). However,
the immigration judge determined that the applicant is not inadmissible
under section 212(a)(9) of the Act, notwithstanding a specific finding
that he was convicted as an adult of a crime under Cuban law, concludrThe applicant applied for asylum. The regulations, however, provide that asylum
requests made in exclusion or deportation proceedings "shall also he considered as requests
for withholding exclusion or deportation pursuant to section 243 Ch) of the Act." 8 C.F.R.
208.3(3).
2 The applicant also admitted to one previous theft, committed when he was 12 years of
age,,for which he was not apprehended.
2 While the applicant's initial testimony with respect to the length of his sentence is
somewhat ambiguous, he appears to have ultimately conceded that he was sentenced to 20
years (Tr. pp. 27-28). In any event, the length of sentence imposed by the Cuban court is
immaterial in light of our legal conclusions in the case.

136

Interim Decision #2884
ing that the applicant's age at the time of his offense precludes a finding
that the offense involved moral turpitude. We likewise conclude that the
applicant is not excludable by reason of his conviction record under '

section 212(a)(9) of the Act, but our rationale differs from that of the
immigration judge: we find that the applicant's offense is not a crime
within the contemplation of the Immigration and Nationality Act and
accordingly, do not reach the'question of whether or not the offense was
turpitudinous in nature.
In order for a foreign conviction to serve as a basis for a finding of
inadmissibility, the conviction must be for conduct which is deemed

criminal by United States standards. Matter of McNaughtort, 16 I&N
Dec. 569 (BIA 1978). It is settled that an act of juvenile delinquericy is
not a crime in the United States and that an adjudication of delinquency
is not a conviction for a crime within the meaning of our immigration
laws. See discussion in Hu nu-Leung v. Soscia, 500 F.Supp. 1382
(E.D.N.Y. 1980), and the cases cited therein; Matter of OW-, 2 I&N
Dec. 319 (BIA 1945; A.G. 1945); Matter of F-, 2 I&N Dec. 517 (C.O.
1946; BIA. 1946); Matter of A-, 3 I&N Dec. 368 (BIA 1948); Matter of
C-M-, 5 I&N Dec. 327 (BIA 1953).
Congress manifested its view as to conduct constituting acts ofjuvenile delinquency with the enactment of the FederalJuvenile Delinquency
Act (hereinafter, the FJDA). 4 Considering Congress' plenary power to
legislate with respect to the classes of aliens that may be admitted to the
United States and the correlative desirability of a rule which provides
national uniformity in the administration of a federal statute such as the
Immigration and Nationality Act, we believe it appropriate to look to
the standards fashioned by Congress, embodied in the FJDA, to determine whether a given act is to be considered a delinquency or a crime.by
United States standards.
The FJDA defines a "juvenile" as "a person who has not attained his
eighteenth birthday, or for the purpose of proceedings and disposition
under this chapter for an alleged act of juvenile delinquency, a person
who has not attained his twenty-first birthday," and "juvenile delinquency" as "the violation of a law of the United States committed by a
person prior to his eighteenth birthday which would have been a crime if
committed by an adult." 18 U.S.C. 5031. 5 Pursuant to section 5032 of
the Act, 18 U.S.C. 5032, any juvenile within the jurisdiction' of the
federal courts' alleged to have committed an act of juvenile delinquency
While under 16 years of age is not subject to criminal prosecution as an
18 U.S.C. 5031 et seq., as amended by the Juvenile Justice and Delinquency Prevention Act of 1974. Pub. L. 93-415. 58 Scat_ 11:13 (PrfPctivA September 7, 1974).
6 Under the predecessor to the present section 5031, in force when the applicant committed his offense, "juvenile delinquency" was defined to exclude acts committed by a juve137

Interim Decision #2884
adult. Rather, he is entitled to benefit from the protective and rehabilitive
provisions of the FJDA unless he waives his right, in writing upon
advice of counsel, to ouch treatment. ?

A juvenile whose alleged offense is perpetrated between his sixteenth
and eighteenth birthday is likewise proceeded against as a juvenile
delinquent unless he is charged with committing an act which, if committed by an adult, would be a felony punishable by a maximum penalty of
10 years imprisonment or more, life imprisonment or death. Under
those circumstances, criminal proceedings may be instituted if a federal
district court determines, after hearing on a motion to transfer for

criminal prosecution brought by the Attorney General, that such transfer would be in the interest of justice. 18 U.S.C. 5032.
As noted earlier, the applicant was 13 years of age at the time of his
offense. ,Under Congressionally mandated procedures governing the
treatment of juveniles, the Government may not proceed criminally
against any person within the jurisdiction of the federal courts whose
alleged offense was committed while under 16 years of age, regardless
of the nature of the offense or the potential punishment, unless on
counsel's advice the youth requests prosecution as an adult. 18 - U.S.C.
5032. We will not presume that a juvenile would opt to forego his right
to be proceeded against as a delinquent in favor of criminal pros e cution_

We thus conclude that the applicant's transgression, whether or not
nile that were punishable by death or life imprisonment. The applicant's offense dearly
was not of such gravity and we consequently need not consider at this time what result
would be reached had that exception applied in this case. Cf. United States v. Mechem,
509 F.2d 1193 (10 Cir. 1975); United States v. Azevetio, 394 F.Supp. 852 (D. Hawaii 1975).
An appropriate federal district court may proceed in a case upon certification by the
Attorney General that the juvenile court or other appropriate court of a state either lacks
or refuses to assume jurisdiction or does not have available programs and services adequate for the needs of juveniles; absent such certification, the juvenile is to be surrendered to state legal authorities.
7 Those protections, which effectively remove juveniles from the 'regular criminal justice
system and provide a separate system of treatment for them, include: proieeding against
the juvenile by information rather than by indictment, thus avoiding the stigma of a
criminal conviction (section 5032, FJDA); providing for representation by counsel at every
critical stage of the proceedings (section 6032); providing for trial within 30 days from the
date of detention in the case of a detained alleged delinquent (section 5030); allowing
considerable flexibility with respect to the disposition of an adjudicated delinquent (section
5037); confining the juvenile, when confinement is deemed necessary (section 5034), in a
facility, separate from the adult criminal population, offering treatment and rehabilitative
services (sections 5035 and 5039); limiting the term of confinement to which an adjudicated
delinquent may be committed to his twenty-first birthday or the maximum term which
could have been imposed on an adult for the same offense, whichever is the lesser period,
or, in the ease of a juvenile who has reached his nineteenth birthday at the time of
disposition, to the lesser of 2 years or the maximum sentenrp which could have been
imposed on an adult (section 5037); and safeguarding the record of proceedings from
disclosure by prohibiting its release except under specified circumstances (section 5038).
138

Interim Decision #2884
treated as a crime in Cuba, may not as a matter of law be deemed
criminal by United States standards and consequently is not an excludable offense. Matter of McNaughton, supra. A finding of inadmissibility
under section 212(a)(9) of the Act may not be sustained.
Prior to the exclusion hearing, the applicant's request for asylum was
denied by the District Director who, after consultation with the Department of State, found the applicant barred by his criminal record from
establishing eligibility for the relief sought.' The applicant availed himself of his regulatory right to renew his application before the immigration judge at the hearing. 8 C.F.R. 208.9. Finding that the applicant
was not precluded by the commission of a serious nonpolitical crime
from qualifying for asylum or section 243(h) relief, the immigration
judge nonetheless denied his application for failure to establish his
persecution claim.. The immigration judge's decision is correct.
An applicant far asylum or withholding of deportation must show
that, if deported, his life or freedom would be threatened on account of
his race, religion, nationality, membership in a particular social group,
ur political opinion. 8 C.F.R. 208.5; 8 C.F.R. 286.3(4(2). See generally

Matter of McMullen, 17 I&N Dec. 542 (BIA 1980). To meet his burden

of proof, the applicant must demonstrate a clear probability that he will
be so persecuted if returned to his country. Matter of McMullen, id.
The applicant has not sustained his burden. He has failed to make, let
alone substantiate; any specific factual allegations tending to establish
that he will be singled out for persecution if deported to Cuba. As the
applicant is inadmissible and ineligible for,the relief he seeks, his appeal
must be dimissed.
ORDER: The appeal is dismissed.

8 The statute and the regulations provide that an alien may not obtain a grant of asylum
or withholding of deportation under section 243(h) of the Act, despite a valid persecution
claim, where it is determined that "there are serious reasons for considering that the alien
has committed a serious nonpolitical crime outside the United States prior to the arrival of
the alien in the United States." Section 24:3(h1(2)(C) of the Act_ R U.S.0 1 25:1(10(21(C:):
C.R.F. 208.8(f)(1)(v). See also Matter of Rallester-Gareia. 171&N Dec. 592 (BIA 1980);
Matter of Rodriguez-Patina, 17 1&N Dec. 465 (BIA 1980).

139


Interim Decision #2049

MATTER OF PANGANIBAN
In Visa Petition Proceedings
A-17235606
Decided by Deputy Associate Commissioner July 10, 1970
A medical technologist who has a baccalaureate degree with major study in
medical technology from an accredited college or university in the United
States or such degree from a foreign college or university which is evaluated as its equivalent by the United States Office of Education; or who
has completed successfully at an accredited college or university 3 years
of academic study which meets the requirements for entering a school of
medical technology approved by the American Medical Association, plus a
year of clinical training at such approved school of medical technology, is
a member of the professions within the meaning of section 101 (a) (32) of
the Immigration and Nationality Act, as amended, and is eligible for preference classification under section 203(a) (3) of the Act, as a medical technologist. [Matter of Asuncion, 11 1. & N. Dec. 660, overruled.]
IN BEHALF OF PETITIONER:

Richard K. Quan, Esquire
840 N. Broadway, Suite 200
Los Angeles, California 90012

The Regional Commissioner on March 20, 1970, approved this
petition filed to accord the petitioner-beneficiary preference classification as a medical technologist under section 203(a) (3) of the
Immigration and Nationality Act and he has certified the case for
decision by the Deputy Associate Commissioner, Travel Control,
because of a contrary finding regarding this occupaton in Matter
of Asuncion, 11 I. & N. Dec. 660 (1966).
The petitioner, a twenty-six-year-old native and citizen of the
Philippines, graduated on July 18, 1967 from the Centro Escolar
University, Manila, Philippines, with the degree of Bachelor of
Science in Medical Technology. Included in his successful completion of eight semesters of study was an internship from June
1966 to July 1967 in his field of specialization at two hospitals
and a public health laboratory in the Philippines. He has been licensed after State examination in California as a Clinical Laboratory Technologist (Medical Technologist), and he has been em-

581

Interim Decision #2049
ployed as such in a California hospital since 1968. He filed his
visa petition on April 26, 1968, and it was denied on the basis of
the holding in Matter of Asuncion, supra, that the occupation of
medical technologist is not a profession within the meaning of the
Act. The District Director thereafter reconsidered the petition
but on November 24, 1969 denied it again on the same grounds.
It was approved upon appeal to the Regional Commissioner.
The holding in Asuncion was influenced by a statement of the
:raining requirements prescribed in 1962 by the Registry of Medcal Technologists of the American Society of Clinical Patholorists, which is nationally recognized as the qualifying body in
his medical field; and by a discussion on medical technology in
he 1966-1967 edition of the Occupational Outlook Handbook of
he U.S. Department of Labor. There is much in the present recrd, however, to indicate that the regard in which medical techology is held has been much enhanced in recent years. The Regisry of Medical Technologists, for instance, has now set the actual
ttainment of a bachelor's degree as the minimum qualification
)r taking the Registry examination in 1971; and the new (1970971) edition of the Occupational Outlook Handbook, supra, contins these observations:
Medical technologists, who require 4 years of post-secondary training, pernu the more complicated chemical, microscopic, and bacteriological tests
id procedures.
lost medical technologists conduct tests related to the examination and
!atment of patients. However, some do research on new drugs or on the
provement of laboratory techniques. Others teach or perform administrae duties.
he usual minimum educational requirement for beginning medical technolsts is 3 years of college plus completion of a specialized training program
medical technology approved by the American Medical Association. Ungraduate work must include courses in chemistry, biological science, and
,hematics. Such studies give the technologist a broad understanding of
scientific principles underlying laboratory work. The specialized training
ally requires 12 months of study and includes extensive laboratory work.
968 such training was given in nearly 800 hospitals and schools, most of
:II were affiliated with colleges and universities. A bachelor's degree is
n awarded upon completion of the college affiliated program. A few
ols require a bachelor's degree for entry into the program."

'hus, it is apparent that requirements are changing and have
nged : registration by the authoritative qualifying body in the
I of medical technology will require a bachelor's degree; and
se years of college work including prescribed scientific subs plus another year of specialized study approved by the
?rican Medical Association has been found by the Department
abor to be currently the usual minimum.
582

Interim Decision #2049
A medical technologist works closely with the pathologist, and
professionalism is implicit in his many responsible duties as set
out in the Occupational Outlook Handbook, supra. It is noted, too,
that the present record contains evidence that the U.S. Civil
Service Commission has made a thorough study of federal clinical
laboratory functions has resulted in the establishment "of
two separate classifications: medical technician (nonprofessional)
and medical technologist (professional)."
It is concluded, therefore, that a medical technologist who has a
baccalaureate degree with major study in medical technology
from an accredited college or university in the United States or
such degree from a foreign college or university which is evaluated as its equivalent by the United States Office of Education; or
who has successfully completed at an accredited college or university three years of academic study which meets the requirements
for entering a school of medical technology approved by the
American Medical Association plus a year of clinical training at
such approved school of medical technology, may be regarded as a
member of the professions as that term is used in section
203 (a) (3) of the Immigration and Nationality Act. Matter of
Asuncion, supra, is overruled.
The petitioner here has a baccalaureate in medical technology
from the Centro Escolar University, whose degree in that field
has been appraised by the U.S. Office of Education as the equivalent of that awarded by accredited American universities. The petitioner, therefore, meets the educational requirements for professional classification as a medical technologist, and his petition
was properly approved.
ORDER: The decision and order of the Regional Commissioner
dated March 20, 1970, directing the approval of the visa petition
to classify the status of Augusto E. Panganiban under section
203 (a) (3) of the Immigration and Nationality Act, is hereby affirmed.

583


Interim Decision #1918

MATTER OF TSIMBIDY-ROCHU
In Deportation Proceedings
A-14824676
Decided by Board November 6, 1968
Where, following respondent's conviction in the State of Nevada of possession of marijuana, her plea of guilty was withdrawn and the information
was dismissed by the court pursuant to section 176.225 of the Nevada Revised Statutes (which action conforms to an expungement under section
1203.4 of the California Penal Code), the dismissed of the information by
the Nevada court is ineffective to remove respondent's narcotic conviction
as a basis for deportation under section 241(a) (11) of the Immigration
and Nationality Act.*
CHARGE:

Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11))—Convicted of possessing marijuana.
ON BEHALF OF RESPONDENT:
Donald L. Ungar, Esquire
517 Washington Street
San Francisco, Calif, 94111

ON BEHALF OF SERVICE:
Jay Segal
Trial Attorney
(Brief submitted)

The instant matter arises on a motion to reconsider our prior
decision rendered on July 17, 1868, wherein we dismissed the appeal and affirmed the finding of the special inquiry officer ordering the respondent deported.
These proceedings initially arose under section 241 (a) (11) of
the Immigration and Nationality Act. The respondent, a native
and citizen of France, was convicted on her plea' of guilty in the
Second Judicial District Court, State of Nevada, County of
Washoe, on April 22, 1968, for the offense of possession of a narcotic drug, to wit, marijuana. Following her conviction, the respondent was sentenced to the Nevada State Prison for a term of
one year. The sentence was suspended and the respondent was
placed on probation for a period of three months on condition
that she surrender to the Immigration and Naturalization author* Reaffirmed. See 414 F.2d 797 (C.A. 9, 1969).

56

Interim Decision #1918
ities. Following our adverse decision on the appeal, respondent,
through her counsel, filed a petition for review with the United
States Court of Appeals for the Ninth Circuit. On July 21, 1968,
respondent's plea of guilty was changed to that of not guilty and
the information was dismissed pursuant to section 176.225 of the
Nevada Revised Statutes.
The purpose of the instant motion to reconsider is to raise the
issue of whether the court order removes the conviction of respondent as the basis of deportation. The Service has filed a reply
brief in which it states that the Petition and Order for Honorable
Discharge from Probation attached to the motion is evidence of
an expungement and does not wipe out respondent's conviction for
the possession of marijuana. The Service characterizes the Ne-

statute cited above as being similar to section '1208.4 of the
California.Penal Code providing for expungements.I
The sole Question we are called upon to decide is whether or
not the action of the Nevada Court dismissing the information
against the respondent has the effect of removing the basis of her
deportation under section 241 (a) (11) of the Immigration and
Nationality Act. A review of the Nevada law and examination of
the evidence presented in connection with the motion to reconsider compels us to conclude that the basis of deportation is not
removed.
vada

Section 176.225 of the Nevada Revised Statutes, reads as follows:
1. Every defendant who:
(a) Has fulfilled the conditions of his probation for the entire period
thereof; or
(b) Is recommended for earlier discharge by the chief parole and probation officer; or
(e) Has domonstrated his fitness for honorable discharge but because of
economic hardship, verified by a parole and probation officer, has been unable to make restitution as ordered by the court, may at any time thereafter
be permitted by the court to withdraw his plea of guilty or nolo contenders
and enter a plea of not guilty; or, if he has been convicted after a plea of
not guilty, the court may set aside the verdict of guilty; and in either case,
the court shall thereupon dismiss the indictment or information against such
defendant, who shall thereafter be released from all penalties and disabili:
ties resulting from the offense or crime of which he has been convicted.
2. The probationer shall be informed of this privilege in his probation
papers.
3. The probationer may make such application and change of plea in
person or by attorney authorized in writing, or by a parole and probation
officer authorized in writing; but in any subsequent prosecution of the de1

fendant for acay other offense, such prior conviction may be pleaded and
proved and shall have the same effect as if probation had not been granted
or the indictment or information had not been dismissed.

plied.)

57

(Emphasis sup-

Interim Decision #1918
We have previously held in Matter A—F—, 8 I. & N. Dec. 429
(1959), that expungement under the California Penal Code of a
narcotics conviction did eliminate the ground of deportatfon
under section 241 (a) (11) of the Immigration and Nationality
Act. The Attorney General reversed our conclusion, stating that
expungement has no effect on deportability arising under section
241 (a) (11). The Attorney General restated his position again in
Matter of G—, 9 I. & N. Dec. 159 (1961) and more recently in
Matter of Ibarra-Obando, 12 I. & N. Dec. 576. We have reviewed
the Nevada statute cited herein and find that it conforms to the
California Penal Statute on expungements. Consequently, our
above rulings stating that an expungement of a narcotics conviction does not remove the basis for deportation are applicable to
the instant matter and we affirm our prior holding that the respondent is deportable on the charge contained in the order to
show cause.
ORDER: It is ordered that the decision finding the respondent
deportable to France under section 241 (a) (11) be hereby affirmed.

58


Interim Decision #1625

Marna

OF

CHArT

In Deportation Proceedings
A.-15956130
Decided by Board July fi7, 1908
Motion to reopen deportation proceedings to permit application for adjustment
of shift's tinder tbe. proviso to section 203(a) (7), Immigration and Nationality Act, as amended by P.L. 89-236, is denied since respondent, who has not
been continuously physically present in the 'United States for a period of
at least 2 years prior to his application, is statutorily ineligible for such relief, and further, since a record of permanent residence as a refugee under
section 203(a) (7) can be created only in accordance with the procedures established for section 245 of the Act, and respondent, a crewman, is statutorily ineligible for the benefits of section 245.
CEARGE:
12513—Nonimmigrant
Order: Act of 1952--Section 241(a) (2) (8
(enawman)—Ramained longer.

On November 12, 1965, the special inquiry officer granted the
respondent's application for voluntary departure, but provided for
his deportation from the United States to Hong Kong, alternatively
to the Republic of China on Formosa, on the charge contained in
the order to show cause, in the event of his failure to so depart.
In accordance with the foregoing decision, the date for the respondent's voluntary departure was set as December 14, 1965. Respondent,
however, failed to so depart. Accordingly, a warrant for his deportation was issued on February 2, 1966.
Thereafter, the respondent moved to reopen the deportation proceedings against him to give him an opportunity to apply for
adjustment of his status under the provisions of section 203 (a) (7)
of the Immigration and Nationality Act, as amended (8 U.S.C.
1103). Concomitantly, he requested a stay of deportation pending

a decision on said motion, which was denied by the District Director
at New York on March 18, 1966. Thereupon, action for a declaratory judgment was filed in the United States District Court for the
746

Interim Decision #1625
Southern District of New York challenging the denial of the stay
of deportation by the District Director, pending adjudication of the
respondent's motion. Apparently, a delision has not yet been
rendered.

On March 28, 1966, the special inquiry officer denied the respondent's motion to reopen the proceedings, on the ground that at this
time he has no relief available to him under section 203(a) (7) of
the Immigration and Nationality Act and that, therefore, no useful
purpose would be served by reopening the proceedings. The appeal
from that decision, which brings the case before this Board for
consideration, will be dismissed.

The record relates to a 52-year-old male alien, married, 1 who is
a native and citizen of China. He last entered the United States
on or about August 23, 1965. He was then admitted as a nonimmigrant crewman, authorized to remain in this country for the period
of time his vessel was to remain in port, but in no event to exceed
29 days.
The foregoing establishes the respondent's deportability • on the

.charge contained in the order to show cause. This was conceded in

the course of the hearing before the special inquiry officer, and is
uncontested here. This aspect of the case, therefore, needs no further
discussion.
The special inquiry officer granted the respondent's request for
voluntary departure, which was, originally the only relief sought in
these premises. Suffice it to say, in this connection, that the record

before us supports said official's action on this respect. The only
additional comment required on the point is that the respondent
failed to take advantage of that privilege.
Upon careful consideration of the entire evidence of record,
together with the representations throughout, it is our judgment that
the special inquiry officer. has properly denied the 'respondent's
motion to reopen the proceedings to permit him to apply for adjustment of his status as a refugee within the purview of section
203(a) (7, of the IniMigration and Nationality Act, as- amended,
and thus qualify for conditional entry into the United States. Under
the proviso to that section, immigrant visas shall be available in lieu
of conditional entries to such aliens as have been continuously present in the United States for a period of at least two years prior to
application for adjustment of status. The respondent last arrived in

the United States as a crewman on August 23, 1965. Under the law,
he is ineligible to apply for adjustment of status under the proviso
1

331s alien wife and their four alien children reside in Hong Kong.

747

Interim Decision *1625
to section 203 (a) (7) of the Immigration. and Nationality Act, as
amended. His application as a refugee must be made outside the
United States (8 CFR 235.9).
Under 8 CFR 245.4 adjustment of status under the proviso to
section 203(a) (7) of the Immigration and Nationality Act is governed by section 245 of that Act and the regulations promulgated
pursuant thereto. Under section 245 of the Act, as amended, such
adjustment is not available to an alien who upon arrival was serving
as a crewman. As stated, the respondent last arrived in this country
on August 23, 1965, as a crewman.
In view of the foregoing, reopening of the deportation proceedings would be a useless act. It has been judicially determined that
adjustment of status of aliens in the United States, under section
203(a) (7) of the Immigration and 'Nationality Act, must be carried
out under section 245 of that Act; and that crewmen such as this
respondent are ineligible therefor (See Tai Mui v. Esperely,
So. Dist., New York, 66 Civ. 316, 5/4/66).
While an appeal has been filed in the foregoing case, we feel that
the decision therein, involving a factual situation substantially
similar to that of the present case, provides an excellent analysis of
the pertinent statutory and regulatory provisions and is dispositive
of this appeal. For the reasons stated therein, which need no
repetition, here; reopening of these proceedings would serve no useful
purpose.
The only additional comment required in this ease is that we have
noted counsel's contention that the Service is unduly delaying action
on the-visa petition filed in the respondent's behalf. Suffice it to say
on this point that the matter thus raised is not properly for the
consideration of this Board.
ORDER; It is ordered that the appeal be and the same is hereby
dismissed.

743


Interim Decision #1975

MATTER OF DE PERIO

In Section 212 (e) Proceedings
A-13981355
A-13982621
Decided by Deputy Associate Commissioner August 1, 1968
"Exceptional hardship" within the meaning of section 212(e) of the Immigration and Nationality Act, as amended, is established by an exchange
visitor from the Philippines whose United States citizen child has an allergic condition which requires a hyposensitization program and there is
evidence the child has a heart murmur and cardiac enlargement which
should be carefully studied for an indeterminate period of time.

These cases have been certified to the Deputy Associate Commissioner, Travel Control.
The District Director of this Service at Buffalo denied the applications on February 15, 1968 on the ground that the departure
from the United States of the applicants for a period of two
years would not impose exceptional hardship on their two U. S.
citizen children as contemplated by the statute. The District
Director reopened and reconsidered the case on the applicants'
motion with which the? furnished additional evidence regarding
their son Jeffrey's medical condition. On May 20, 1968 the District Director advised the applicants:
In accordance with your request, your applications were reopened for consideration of the further medical evidence presented regrding - the health of
your child Jeffrey. These reports have been carefully studied, including consultation with the U.S. Public Health Service. It has again been concluded
that you have not established that travel to the Philippines would be injurious to the child and that the program of hyposensitization you wish him to
undergo cannot be carried out in the Philippines. Accordingly, no change has
been made in the order denying your applications.

The applicants have made other claims attesting to their belief
that their departure from the United States would impose exceptional hardship upon their children by reason of conditions in the
Philippines, such as the lack of educational facilities; the lack of
adequate health and sanitary conditions; substandard housing;

Interim Decision #1975
and exposure to various diseases. They also contended that remuneration to medical practitioners is lower in the Philippines and
that their children should not be exposed to the cultural changes
involved in living in the Philippines for a period of two years.
However, a basic issue to he resolved here is whether the additional factor of Jeffrey's physical condition warrants a finding
that residence in the Philippines would constitute for him the exceptional hardship contemplated by the statute. To this end I
have carefully examined the medical statements submitted.
Dr. John H. Kent, who has been Jeffrey's attending physician
since October 1967, has summarized in a letter dated March 18,
1968 the child's condition with regard to his allergies. He concludes, "In view of the fact that both Jeffrey's parents have allergies, and that he shows definite positive skin tests, there is little
doubt in my mind that Jeffrey is an allergic youngster. He is following a pattern typical in these youngsters starting with repeated upper respiratory tract infections manifested by wheezing
and cough. Often these youngsters will then develop more classical types of bronchial asthma if not treated. It is recomended
that Jeffrey continue on the program of hyposensitization weekly
for the next few months and then monthly for a period of approximately two years."
In a letter dated February 22, 1968, Dr. Lydia T. Wright
states, "During the course of a physical examination on the above
patient for pharyngitis and bronchitis, a grade 2 ejection heart
murmur was found along with cardiac enlargement. In the presence of this cardiac murmur, the age of the patient and cardiomegaly, I am strongly suspicious of congenital heart disease. The
patient's condition warrants complete and careful study regular
intervals at the Cardiac Center in Buffalo to detect any further
cardiac vascular embarrassment such as with decompensation. I
cannot say when cardiac catheterization will be indicated, but I
am certain that at some time in the near future it will be necessary. This could well indicate surgery in this instance. In view
of the above, this child should not be subjected to the vigors and
excitement of travel to and from the Philippines."
Other letters in the record included one dated January 30, 1968
from Dr. John F. Hartman stating "Jeffrey De Perio ... has been
under my care since birth. He has a moderately severe, vibratory
ejection heart murmur. This has been studied with elect t.o-cardiograms and x - rays. These show a slightly enlarged hest which
could indicate strain due to congenital heart disease. He will be
restudied this summer. It certainly seems essential that he be

274

Interim Decision #1975
studied at regular intervals for comparison and for the possibility
of further test (sic) which might be necessary. This usually requires a cardiac center such as we have here in Buffalo at Children's Hospital."
There is also a letter dated June 12, 1967 from Dr. Arno R.
Hohn, Cardiologist, Children's Hospital, Buffalo in which he
states, "At the conclusion of the examination in view of the questionable cardiomegaly and presence of a heart murmur I could
not definitely exclude a congenital cardiovascular malformation of
the heart. Accordingly, it is my recommendation that this child
be periodically observed and re - evaluated from a cardiac standpoint. Currently there need not be any special diets or medications given to this child and activity need not be restricted."
Consultation was had on three occasions with the U. S. Public

Health Service. On July 5, 1967, Dr. Peter C. Kelly, Chief Medical Officer of that Service at Buffalo stated, "Dr. Hohn is unable
to make a diagnosis of organic heart disease. He does not feel
that any dietary or activity restrictions are indicated. Hence, Jeffrey's cardiac murmur does not preclude travel to the Philippines." On March 6, 1968 Dr. Kelly wrote; "Dr. Arno Hohn's report of June 2, 1967 (letter dated June 12, 1967 referred to above
relates to this report) represents the best evaluation of Jeffrey
De Perio's heart murmur. The reports of Dr. Lydia Wright and
Dr. John Hartman do not contain any new evidence. Hence, there
is no reason to believe that travel would be injurious to Jeffrey's
heart. Dr. John Kent's report of October 19, 1967 indicates that
Jeffrey has an allergic condition which could make travel to the

Philippines dangerous. I request that Jeffrey be re-examined by
Dr. Kent. It is of special importance to know if hyposensitization
has been completed. In addition, Dr. Kent should indicate the
effectiveness of hyposensitization." On April 8, 1968 Dr. Kelly
wrote, "Doctor Kent's summary of Jeffrey De Perio's case has
been helpful. He indicates that Jeffrey is an allergic youngster
who requires a hyposensitization program. I do not believe it a
hardship to carry out such a program in the Philippines. Hence,
it would not be difficult or dangerous to travel to the Philippines
for two years."
Section 212 (e) of the Immigration and Nationality Act requires that an alien who has been admitted to the United States
as an exchange visitor must reside abroad for an aggregate period of at least two years before he may apply for an immigrant ,
visa or adjust his status to permanent residence unless the foreign residence requirement is waived by the Attorney General.
9.75

Interim Decision #1975
That section also charges the Commissioner of Immigration and
Naturalization with responsibility for determining whether the
exchange visitor's departure from the United States would impose exceptional hardship upon the alien's U. S. citizen or lawfully resident alien spouse or child. In arriving at such a determination consultation may be had with the U,. S. Public Health
Service when a basis for the claimed hardship is the medical condition of the spouse or child and an advisory opinion solicited.
Such consultation was had in the instant case and as a result the
Service is faced with a divergency of opinions.
In the instant case there is evidence that the child, Jeffrey, has
an allergic condition which requires a hyposensitization program
which has just begun and may continue for perhaps another two
years. Also there is evidence that Jeffrey has a heart murmur and
cardiac enlargement which should be carefully studied fryr an indeterminate period of time. Two of the consulting physicians recommend that such observation be conducted at a cardiac center
such as the one at Children's Hospital in Buffalo. On the other
hand, a medical opinion has been received to the effect that it
would not be dangerous for Jeffrey to travel to the Philippines
and remain there with his parents for two years.
If Jeffrey's parents are required to return to the Philippines
their children would of course accompany them. In the Philippines the applicants' financial resources will be sharply reduced.
Whether or not adequate medical facilities are available in the
Philippines and whether or not the applicants will be able to pay
for such treatment, the fact remains that in the United States excellent facilities are present and are being utilized and the applicants can well afford to ensure that their child obtains the proper
treatment. American facilities are generally regarded to be superior to those found in the Philippines.
As I have indicated above, some degree of hardship would be
imposed on the applicants' children if their parents were required
to reside in the Philippines for the requisite two year period regardless of their health. Jeffrey cannot be said to be a normal,
healthy child. Hence, the hardship to him would be considerably
more severe by reason of his physical condition and, in my opinion should properly be regarded as exceptional. Accordingly, I
conclude that the applications for waiver should be granted and
enter the following order.
It is ordered that the applications for waiver of the foreign
residence requirement of section 212 (e) of the Act be, upon the
favorable recommendation of the Secretary of State, granted.

276


Interim Decision #2553

MATTER OF WONG

In Deportation Proceedings
A-31222150
Decided by Board January 31, 1977
(1)Respondent born October 14, 1944, was admitted to the United States for permanent
residence on April 1, 1973, as the unmarried minor child of a lawful permanent resident
on the basis of an Appatittha (ceremonial) adoption whida took place in Burma. The
Service seeks respondent's deportation under section 241(a)(1) of the Immigration and
Nationality Act as an alien excludable at entry under section 212(a)(14) of the Act for
lack of a valid labor certification based on the fact that the adoption was not registered
so as to be classified as a Kittima adoption (the only adoption now considered valid for
immigration purposes) until Apri122, 1969, after beneficiary- passed the age of 14 years.
(2) Notwithstanding that an Appatittha adoption was declared to be invalid for immigration purposes in Matter of Kong, 14 1. & N. Dec. 649 (BIA 1974), the Board will not
apply that holding retroactively to aliens who were admitted for lawful permanent
residence prior to the date of that decision (March 26, 1974). and the instant deportation
proceedings brought against respondent must be terminated.
CHARGE:

Orden Act of 1952—Section 241(a)(1) (8 U.S.C. 1251(a)(1)1--Excludable at entry under
section 212(a)(14); no labor certification
ON BEHALF

OF RESPONDENT:

Thomas N. Saldin, Esquire
4676 Admiralty Way
Marina Del Hey, California 50291

BY: Wilson, Acting Chairman; Torrington, Maniatis, and Appleman, Board Members

In a decision dated May 23, 1975, the immigration judge found the
respondent deportable as charged and granted him the privilege of
voluntary departure from the United States in lieu of deportation. The
respondent has appealed. The appeal will be sustained, and the proceedings will be terminated.
The respondent was born in Burma on October 16, 1944. He was
admitted to the United States for permanent residence on April 1, 1973,
as the unmarried minor child of a lawful permanent resident on the basis
of his adoption in Burma. He was the beneficiary of a visa petition
approiied by the District Director, and a visa was issued by an American

Consular official pursuant to 8 C.F.R. 204.1(a).
99

Interim Decision #2553
On March 25, 1974, almost twelve months after the respondent had
been admitted for permanent residence, we rendered our decision in
Matter of Kong, 14 I. & N. Dec. 649 (BIA 1974), holding that an
Appatittha adoption, which is a ceremonial adoption, cannot be considered a valid adoption for immigration purposes. That holding was
reaffirmed in Matter of Chang, 14 I. & N. Dec. 720 (BIA 1974).

The Service seeks the respondent's deportation under section
241(a)(1) of the Immigration and Nationality Act by reason of his
excludability at entry under section 212(a)(14) of the Act for lack of a
labor certification. The sole basis .for this charge is that there was no
registration of the adoption sufficient to classify it as a Kittima adoption
(the only adoption under Burmese law recognized for immigration purposes) until April 22, 1969, well after the respondent turned 14 years of
age. There has been no allegation of fraud or misrepresentation on the
part of the respondent in obtaining his visas or in entering the United
States.
As we noted earlier, the respondent was admitted to the United
States for permanent residence almost twelve months prior to our
decision in Molter of Kong, supra We have held that the only adoption
in Burma under the Burmese Buddhist Law that will be recognized for
immigration purposes is the Kittima adoption. However, the respondent was adopted within Burmese law under an Appatittha adoption.
See Matter of Kong, supra. The respondent was publicly taken into the
home of his adoptive parents in 1947, shortly before his natural mother's
death and with her consent. The record indicates that he lived from that
time on with his adoptive parents and has been treated and recognized
as one of the family. The record also contains a copy of a notarized
"Declaration of Adoption" executed on April 22, 1969, by the respondent's adoptive parents. This declaration recites that on August 2, 1947,
the respondent's adoptive parents openly declared the adoption of the
respondent in the presence of invited guests with the consent of the
respondent's natural mother.
At the time the respondent was admitted for permanent residence we
had not yet had occasion to set forth our view on adoption in Burma.
There was, at that time, the plausible legal argument, based on certain
oi our decisions involving Chinese adoptions, that informal adoptions in
Burma were sufficient for immigration purposes. See e.g., Matter of Ng,
14 I. & N. Dec. 135 (BIA 1972); Matter of Kwok, 14 I. & N. Dec. 127
(BIA 1972); Matter of Yue, 12 I. & N. Dec. 747 (BIA 1968). We have
since repudiated that view. Matter of Kong, supra. Nevertheless, we
are not willing to apply Matter of Kong, supra, retroactively to aliens
who were admitted for lawful permanent residence prior to the date of
that decision.

Under the peculiar circumstances of the present case, the Service has
100

Interim Decision #2553
not established that the respondent was excludable at the time of his
entry. Consequently, the proceedings must be terminated.
The appeal will be sustained, and the proceedings will be terminated.
ORDER: The appeal is sustained, and the deportation proceedings
are terminated.

101


MATTER OF C
In DEPORTATION Proceedings
A-11659714
Decided by Board May 31, 1960

Discretionary relief—Section 211 (c) and (d)—Not granted where alien on
notice that marriage would invalidate preference visa.
Section 211 (e) and (d) waiver will not be exercised in favor of 20-year-old
Italian girl who was married a few days before departing for United States
after having signed statement in Italian and English (attached to her third
preference quota visa) placing her on notice that marriage prior to entering the United States would invalidate the visa.

CHARGE :
Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry as not of proper status under quota specified in immigrant
visa under section 211(a) (4).

BEFORE THE BOARD

Respondent is 20 years old, married, female, a
native and citizen of Italy. Her only entry into the United States
was at New York on April 20, 1959, at which time she was admitted
for permanent residence upon presentation of a third preference
quota immigrant visa issued to her by the United States Consulate,
Naples, Italy, as the unmarried minor child of a permanent resident
alien. The special inquiry officer found respondent to be deportable
on the charge stated in the order to show cause and granted her
voluntary departure with an automatic order of deportation in the
event she fails to depart. Respondent appeals to this Board.
The record shows that at the time respondent filed her application
for an immigrant visa at the American Consulate, and at the time
it was issued to her on February 5, 1959, she was the unmarried
Discussion:

daughter of a legally resident alien_ At that time she was entitled

to a third preference visa under section 203(a) (3) of the Immigration and Nationality Act.' On April 9, 1959, a few days before her
Section 203(a) (3), Immigration and Nationality Act: "The remaining 20
percentum of the quota for each quota are for such year, plus any portion of
such quota not required for the issuance of immigrant visas to the classes
specified in paragraphs (1) and (2), shall be made available for the issuance
of immigrant visas to qnalifieci quota immigrants who are the spouses or the

children of aliens lawfully admitted for permanent residence." (On September
22, 1959, 73 Stat. 644, the word children, was changed to read "unmarried sons
or daughters.")

665
652713-61

44

departure from Italy, respondent was married by civil and churcn
ceremony. At the time she entered the United States she did not
disclose the fact of her marriage to any immigrant inspector, and
she entered under her maiden name. She is still married, and her
husband, a native and citizen of Italy, still resides in that country.
There are two issues in this case: (1) Is respondent deportable
on the charge stated? (2) Is respondent eligible for the discretionary relief provided in section 211(c) and (d) of the act? We
find, first, that respondent is deportable on the charge stated in the
order to chow cause.

The definition section of the Immigration and Nationality Act of
1952, section 101(b) (1), provides, "The term 'child' means an unmarried person under 21 years of age who is—(A) a legitimate
child * * *." Therefore, the change in the term, "children of aliens"
in the quota section, 203(a) (3), on September 22, 1959 (see footnote
one) constituted no change in the law. The amendment evidently
was to make doubly clear the intention of Congress that only an
unmarried child qualifies for a third preference visa under section
203(a) (3).
Counsel contends that there is no provision in section 241 for
deporting an alien in respondent's position. Section 241(a) (1)
declares, "Any alien in the United States * * * shall, upon order
of the Attorney General, be deported who—(1) at the time of entry
was within one or more of the classes of aliens excludable by the
law existing at the time of such entry." Chapter 2, Documentary
Requirements, section 211(a) states, "No immigrant shall be admitted into the United States unless at the time of application for
admission he * * * (4) is of the proper status under the quota gpecifed in the immigrant visa." It is not sufficient that she be an unmarried minor child when the visa is issued to her. She must be
of the proper status under the quota specified in her visa at the time
she enters the United States. She was not of the specified status,
and she is, therefore, deportable under section 241(a) as a person
"excludable by the law existing at the time of such entry."
The briefs of counsel have gone extensively into the matter of
respondent's good faith, whether or not the marriage was consummated, and whether or not the record establishes that respondent
was on notice that marriage prior to entry would disqualify her
from using her third preference visa. The Board has taken the
view consistently in these cases that even if the holder of such a
visa does not know that marriage invalidates his visa, and practices
no fraud or concealment, he is deportable. He is not of the "proper
status under the quota specified in the immigrant visa," as required
by section 211(a).
The only reported decision of this Board concerning a marriage
666

!ollowing issuance of a third preference visa which invalidated the
visa prior to entry into the United States is Matter of T—, 3
& N. Dec. 528 (B.I.A., April 6, 1949). There the alien, while
still a minor, obtained an annulment of her marriage in Texas. The
decree was declared by the court to be an annulment of the marriage
contract ab initio. Therefore, we terminated proceedings because
the alien, by the annulment, again became an unmarried minor child.
There is no such issue in the instant case.
Counsel quotes from United States ex rel. Leibowitz v. &Hotfeldt, 94 F.2d 263 (C.A. 7, 1938), in support, of his application.
The court in that case repeatedly stated that the "appellee would
have been entitled to a quota visa if his correct name and age had
been stated," and he "was within the quota provisions and otherwise met the prescribed requirements to enable him to effect a legal
entry." The case cited is not applicable to the instant proceeding.
Respondent became ineligible for the status claimed in the visa
issued to her.
The matter of good faith does go to the question of whether the
Board will act favorably on respondent's petition for favorable
exercise of the discretion under section 211(c) and (d).' The
record contains a mimeographed, one-page document, entitled "Marital Declaration," signed by respondent and attached to her visa.
This declaration, headed "American Consulate General, Naples,
Italy," dated February 5, 1959, states, "I understand that this visa
will become invalid should I marry prior to my admission to the
United States. Should I marry I understand if I make application
at a U.S. port of entry I will be excluded or, if admitted, liable to
deportation." The marital declaration appears both in English and
in Italian, and is signed by respondent on the blank line for signature at the end of the paragraph in Italian. Respondent testified
that she is able to read and write in the Italian language. There
is no evidence concerning the length of time she attended school,
but her testimony is precise and well phrased.
Counsel submits that the "Marriage Declaration" is not prescribed
or authorized by the immigration act and is of no binding force.
The device of the marriage declaration has no legal significance, of
course, except that it is additional evidence that notice was given
2 Section 211(c) provides: "The Attorney General may in his discretion,
subject to subsection (d), admit to the United States any otherwise admissible immigrant not admissible under clause (2), (3), or (4) of subsection (a),

if satisfied that such inadmissibility was not known to and could not have been
ascertained by the exercise of reasonable diligence by, such immigrant prior to

the departure of the vessel. * * *" (Empbais supplied.)
Section 211(d) provides that the discretion under 211(c) shall not be exercised unless the immigrant can obtain a quota number under the proper quota
during the present fiscal year or during the next fiscal year.

667

an unmarried minor child (of marriageable age) applying for a
third preference quota visa. The fact is that since this marriage
declaration has been in use by United States consulates appeals to
the Board such as the instant case have greatly decreased.
The marriage declaration is intended to emphasize the statement
set forth in the visa, paragraph 30, "I claim to be a third preference
quota immigrant and my claim is based on the following facts:
Minor unmarried daughter of an alien lawfully admitted to the
United States for permanent residence." Paragraph 31 lists the
documents required by the Immigration and Nationality Act, filed
herewith and made a part hereof, as follows: "birth certif., single
status certif., family status certif., penal dots. (3), marital statement." Thus the immigration documents in the possession of this
respondent from February 5, 1959 until the date she was admitted
to the United States, April 20, 1959, declare in not less than four
places that she is a minor unmarried daughter, as required by section 101(b) (1), the definition section, and section 203(a) (3), the
quota section of the act.
Counsel ridicules the suggestion that the "immigrant examines,
scrutinizes and remembers" the documents he is asked to sign, and
states that the immigrant signs all papers requested and, evidently,
never looks at them again. The travel documents were in the hands
of respondent for more than 2 months prior to her marriage. Counsel criticizes the wording of the "Marital Declaration." Certainly
it must be admitted that it is awkwardly phrased. The fact remains
that it should be enough of a warning to have put a literate person
on notice that marriage following the issuance of the visa, but prior

to her entry into the United States, would in some way seriously
affect her immigrant status, even if the other statements and declarations in her visa regarding her unmarried status had made no
impression upon her.
The facts of the case are not as they would be if the documents
had been signed by respondent and returned to a Government official, so that she did not see them from the time she signed them
until the time she applied for admission into the United States.
She stated at her hearing that she signed all the documents without
stopping to read them. However, in her preliminary statement (Ex.
6, p. 3) she said that she thinks she read the document but cannot
remember; she only remembers signing it.

We fail to see where counsel derives comfort from Clarke v. Landon, 139 F. Supp. 113 (D. Mass., 1956), or from Landon v. Clarke,
239 F.2d 631 (C.A. 1, 1956). The instant case falls under the rule

that if the misrepresentation had been known at the time of respondent's entry into the United States, she would have been denied
use of the visa in her possession.
668

Not only was respondent not eligible for the preference visa she
ibtained, but she now seeks a third preference quota visa for her
husband as the spouse of an alien lawfully admitted for permanent
residence. Thus, respondent and her husband would both enter the
United States under the preferences, rather than having to wait out
their turn on the lists for nonpreference visas.
We find that this is not an appropriate case for the favorable
exercise of the discretion provided in section 211(c). Respondent
has riot established to our satisfaction, as required by the statute,
that her inadmissibility under the preference visa issued to her
"was not known to and could not have been ascertained by the exercise of reasonable diligence by" her, prior to the departure of her
vessel from Italy for the -United States. On the contrary, it is our
opinion that she is a person who is able to comprehend the meaning
and effect of the documents placed before her. The special inquiry
officer has granted respondent voluntary departure, and that is the
maximum relief available to her on this record.
Order: It is ordered that the appeal be and is hereby dismissed.

669


Interim Decision. #1442

Mama or A—

-

In Section 212(d) (3) Proceedings
' A-11149063

-

Decided by District Director January 26, 1966

mince 1951 as a former criminal,
alcoholic, and drug addict, her temporary admission to the -United States,
1 notwithstanding her inadmissibility under sections 212(a) (4), (9), (12)
and (23), Immigration and Nationality Act, as amended, is authorized
pursuant to section 212(d) (8) of the Act to attend a meeting, and to visit
the General Services Headquarters, of Alcoholics Anonymous, to exchange
ideas and information with others who are also actively engaged in the
' treatment of drag addicts and alcoholics.
In view at appliettnee .eemplete rehabilitation

Applicant is a married female, native, citizen and resident of
Canada, born August 3, 1926, who was excluded and deported from
United States at Detroit, Michigan on September 25, 1951 because
of her criminal record and a Class A medical certificate statinethat
she was found to be afflicted with constitutional psychopathic inferiority on the basis of her past history of "— repeated criminal
activity and other anti-social behavior including prostitution and

drug addiction." She has been convicted of the crimes of obtaining .
goods and money by false pretenses, uttering, and being an inmate
of a bawdy house. These convictions took place in Canada and are
documented in her file. She admits the commission of the crime of
uttering in connection with obtaining narcotic drugs, and to having .
engaged in prostitution. Her appeal from the Class A medical certificate was (Nall-limed and the medical finding confirmed on Octe- •
ber 'I., 1951. On July 18, 1952 this Service denied her application
for exercise of the Mirth Proviso to section 3 of the Immigration
let of lint At that time applicant sought to enter temporarily to
visit her husband, who was then an inmate of a. prison in United
States. The record indicates applicant now seeks to enter United
States as a nonimmigrant for the period from January 30, 1965 to
February 2,. 1985 to attend an Alcoholics Anonymous meeting at
:

99

Interim Decision #1442
Buffalo, New York and to visit General Services Headquarters of
Alcoholics Anonymous in New York City. The applicatiOn also
states that she would like permanent visiting privileges.

Supporting statements presented with the application claim that
applicant has completely rehabilitated: In a letter of June 4, 1964
the Rev. James A. Drewelow states that he has known applicant for
thirteen years; that when he first met her she was a dope addict;
that she mentioned to him her desire to change her life, did so, and
is now doing "a great work for humanity in helping unfortunate
girls rebhild their liven—never ones has she gone back to her old

habits—she is an inspiring speaker—and her life has been exemplary
to all who know her." The office manager of Alcoholics Anonymous
in Montreal in a letter of June 12, 1964 states applicant has been a
member of that organization for the 'past ten and one-hall years;
is considered one of the more stable members; "—by her example
has helped many a sick woman alcoholic along the road to recovery;"
.and that "—I take no limitation in recommending this person as an

honest and trustworthy individual." In another letter of June 12,
1964 a priest in Montreal states that he has known applicant since
1954; vouches for her honesty and high integrity; states that she is
an active, outstanding member of Alcoholics Anonymous in Montreal;
that she was active in organizing Narcotics Anonymous in Montreal
and assisting with organizations in other parts of Canada; and that
he recommends her without reservation In a letter of June 10,
1964 another priest states that he has known applicant for two years;
that her life is "surely edifying"; and that she is capable of living
the life of a religious. In a letter of June 20, 1964 Dr. John A. Larson, Ph.D., M.D., who identifies himself as highly qualified by training and experience in the psychiatric and medical field, particularly
in the treatment of alcoholics and drug addiction, states that he has
been in constant contact with applicant by mail since 1959 when he
wrote to her asking her cooperition in starting :work with drug
addicts comparable to that of Alcoholics Anonymous with alcoholics;
that he has the greatest respect and 'admiration for her; that were
he-now in charge of a hospital or outpatient unit he 'would seek her
as a staff member to assist in treatment of alcoholics and drug addicts; that throughout their discussions by letter applicant has "not
,

only shown professional astuteness, dependability, but has exhibited

a marked integrity and sympathetic and yet objective understanding
of the patient—we have kept contact, but not, as patient and physician, but as colleague and friend. —in addition to maintaining her
sobriety and abstinence from all types of drugs, she has enrolled:

100

'

Interim Decision #1442
to take courses--I -would like to ask -her assistance in the lima clearance of the clerical preparation of my present manuscript which I
have been preparing for the past forty years—."
Two of the priests.who wrote letters in support of this application
• and the office manager of Alcoholics Anonymous in Montreal were
interviewed by an officer of this Service. They completely affirmed
their letters in behalf of applicadt; stated that they were aware of
her past history of addiction and prostitution; that they believe she
is completely rehabilitated; and that she is not now a person afflicted
with constitutional psychopathic inferiority. Iri addition, it was
stated that applicant has, been continuously attending classes on the
high school and college level; has led an exemplary life helping
others; that she is completely free of any addiction to drugs or
alcohol; has studied hard over the years to improve herself; and that
She has developed an intense interest and participation in religious
•
life over the past eight years.
The circumstances of this application have been closely scrutinized.
Inquiry, including national agency check!, has revealed no record of
criminal activity, prostittition or narcotic addiction since 1951. Applicant is now a valuable member of society, actively engaged in
rehabilitation work. among alcoholics and drug addicts. In view
of the overwhelming statistics as to recidivism among former drug addicts, her complete freedom from addiction since- 1951 is an astounding accomplishment. The evidence given by those who are now
closely associated with her, who know her history, and who are
themselves persons of unquestioned veracity cannot be denied. Applicant is .apparently one .of the rare cases of rehabilitation found
among former drug addicts, as well as a former alcoholic. Her background has enabled her to make a unique and valuable contribution
to the treatrqent of alcoholism and drug addiction. Communication
among those working in these fields is of prime importance. The
woman who heads the Women's Division of Alcoholics Anonymous
is to lecture in Buffald on January 29, 1965. Applicant has mistakenly mentioned the date of this meeting as January 30, 1965. It •
is concluded that applicant's entry would serve a humanitarian purpose. She is a bona fide nonimmigrant. There is no reason to suspect
that her brief presence in the United. States would adversely affect
the welfare, safety or security of this country. . •
It is ordered that the application be granted, subject to revocation
at any time, to permit-one entry into the United States despite inadmissibility under sections 212(a) (4), (9), (12) and. (23) of the
Immigration and Nationality Act, at the port of Buffalo, New York
•

101

Interim Decision #1442
on or before January 29, 1965 for a period throligh February 2,

1965, for the purpose of attending a meeting of Alcoholics Anonymous in Buifalo,'New York acid to visit the General Services Headquarters of Alcoholics Anonymous in New York City, to axehanga
ideas and
with other persons actively engaged in the
treatment of drug addiction and alcoholism.

102


interim Decision #2138

MATTER OF

MARTINEZ-GOMEZ

In Deportation Proceedings
A-18564855

Decided by Board March 23, 1972
Conviction of a violation of section 11557 of the California Health and Safety
Code, which provides it is unlawful to "maintain any place for the purpose of
unlawfully selling, giving away or using any narcotic," is a conviction of a law
relating to "illicit traffic in narcotic drugs or marijuana" within the meaning
of section 241(a)(11) of the Immigration and Nationality Act.
CHARGE:
Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)}—Convicted of law
relating to illicit traffic in narcotics.
ON BEHALF OF SERVICE: Jay Segal
Trial Attorney
(Brief filed)

The special inquiry officer certifies his order terminating the
above-captioned proceedings. The trial attorney has submitted a
brief in support of his argument that the respondent is deportable
under section 241(aX11) of the Immigration and Nationality Act as
an alien who has been convicted of a law relating to the illicit

traffic in narcotic drugs or marijuana. We will reverse the special
inquiry officer.
The respondent, a native and citizen of Mexico, was admitted to
the United States as an immigrant on June 18, 1967. He was
convicted on September 29, 1967 in the Superior Court of California in and for the County of Santa Clara for violation of section
11557 of the California Health and Safety Code.' Originally, the

respondent was charged under section 11530 of the Health and
Section 11557, California Health and Safety Code provides as follows: "Maintenance of Place for Unlawful Disposal of Narcotics. ... Every person who opens
or maintains any place for the purpose of unlawfully selling, giving away or using
any narcotic shall be punished by imprisonment in the county jail for not more
than one year, or in the State prison for not more than ten years..."

104

Interim Decision #2138
Safety Code for possession of marijuana. He pled not guilty to this
charge. He was granted permission on September 5, 1967 to
withdraw his plea of not guilty and to enter a plea of guilty to a
violation of section 11557, a "lesser included offense" (Ex. 2).
Imposition of sentence was suspended for a period of two years
and the respondent was placed on probation, conditioned upon the
payment of a fine of $150 phis penalty assessment of $16.00 (Ex. 2).
The issue before us is whether section 11557 is a law relating to
illicit trafficking in narcotic drugs or marijuana. Relying on our
decision in Matter of Sum, 13 I. & N. Dec. 569 (BIA, 1970), the
special inquiry officer held that it was not such a law. However,
Matter of Sum dealt with a quite different question, namely the
question whether a conviction for unlawful use of proscribed drugs
rendered an alien deportable as a person convicted for unlawful
possession. of such drugs. This respondent was convicted for
violation of a statute which does not at all require, for conviction,
the unlawful use or possession of proscribed drugs by the accused
person. Section 11557 of the California Health and Safety Code
under which this respondent was convicted was clearly designed to
eliminate the illegal traffic in narcotic drugs by making it a crime
for a person to provide a place for the unlawful disposal of
narcotics.
We are of the opinion that the statute taken at its minimum
involves a law "relating to ... illicit traffic in narcotic drugs or
marijuana." The primary purpose of section 11557 is to eliminate
or control traffic in narcotics by making it a crime to "maintain
any place" for the "selling, giving away or using" any narcotic.
The determining factor is the maintenance of the place and not
the selling, giving away or using narcotics, People v. Cannon, 148
C.A. 2d 163, 306 P.2d 589 (C.A. Cal., 1957).
The case will be remanded to the special inquiry officer for a
reopened hearing and for the entry of an order of deportation
pursuant to section 243(a) of the Immigration and Nationality Act.
An appropriate order will be entered.

ORDER: It is ordered that the case be remanded to the special
inquiry officer for futher proceedings consistent with the foregoing
opinion.

105

Interim Decision #2139

MATTER. OF PONCE DE LEON
In Visa Petition Proceedings
A-18257676
Decided by Board March 30, 1972
Despite birth in an independent country of the Western Hemisphere, an alien
who meets the conditions of section 202(b)(2) of the Immigration and Nationality Act may be alternately charged to the foreign state of his accompanying
spouse, and within such alternate chargeability may be accorded any classification under section 203(a) of the Act for which eligible (in the instant case,
beneficiary accorded second preference classification as the spouse of an alien
lawfully admitted for permanent residence). [See also, Matter of Chatterton,
Interim Decision No. 2133, and Matter of Ascher, Interim Decision No. 1282.]
OF Sravron:
Irving A. Appleman
Appellate Trial Attorney

ON BEHALF OF PETITIONER:

ON BEHALF

James J. Orlow, Esquire
824 Bankers Securities Bldg.
Philadelphia, Pa. 19107

The district director, in an order dated December 7, 1971,
granted the lawful permanent resident alien petitioner's application for preference status for the beneficiary as her spouse under
section 203(a)(2) of the Immigration and Nationality Act. The
district director held that the beneficiary was entitled to alternate
chargeability to the country of the petitioner's birth, despite the
fact that the beneficiary is a special immigrant by virtue of his
birth in an independent country of the Western Hemisphere. The
district director recognized that his decision seemingly conflicted
with our prior precedent decision in Matter of Tiszai, 12 I. & N.
Dec. 425 (BIA, 1967), which he felt should no longer be applicable
because of intervening changes in law and regulations. Because
there was an appearance of conflict, the district director certified
his decision to this Board. His decision will be affirmed.
The petitioner is a native of Germany. She was admitted to the
United States for permanent residence on October 26, 1964. The
beneficiary, her spouse, is a native of Mexico. The record is silent
as to the birthplace or residence of the beneficiary's parents.
The general rule is that an alien is chargeable to the foreign
state of his birth. In the beneficiary's case, this would be Mexico,
106

Interim Decision #2139
but no visas are available to natives of Mexico, who are special
immigrants by virtue of their birth in the Western Hemisphere,
unless they have a priority date of November 22, 1970 or earlier.
The beneficiary evidently does not have an early enough priority
date to qualify for a special immigrant visa. Therefore, the issue in
the case is whether he qualifies for one of the exceptions to the
general rule contained in section 202(b) of the Act. If he so
qualifies, then he may properly be accorded a preference status
under section 203(a) of the Act, assuming he is otherwise qualified.
Our prior precedent decision in Matter of Tiszai, supra, formerly
served to bar access to the alternate chargeability provisions
contained in section 202(b) to natives of the Western Hemisphere
on the ground that they were special immigrants. That decision
was held by us to be no longer applicable due to substantial
changes in law and regulations since it was decided, Matter of
Chatterton, A-19942340, Interim Decision No. 2133 (BIA, March 21,
1972). Consequently, Matter of Tiszai no longer serves as an
obstacle to the beneficiary qualifying for an exception under
section 202(b).
Section 202(b) of the Immigration and Nationality Act, which
contains the provisions relating to alternate chargeability to the
country of birth of a parent or spouse reads, in relevant part, as
follows:
... For the purposes of this Act the foreign state to which an immigrant is
chargeable shall be determined by birth within such foreign state except that
(1) ...; (2) if an alien is chargeable to a different foreign state from that of his
accompanying spouse, the foreign state to which such alien is chargeable may,
if necessary to prevent the separation of husband and wife, be determined by
the foreign state of the accompanying spouse, if such spouse has received or
would be qualified for an immigrant visa and if the foreign state to which such
spouse would be chargeable has not exceeded the numerical limitation set
forth in the proviso to subsection (a) of this section for that fiscal year; (3)...;
(4) an alien born within any foreign state in which neither of his parents was
born and in which neither of his parents had a residence at the time of such
alien's birth may be charged to the foreign state of either parent.

For the sake of simplicity, we shall refer to the exception from
the general rule for chargeability contained in section 202(bX2) as
the "second exception" and that contained in section 202(bX4) as
the "fourth exception."

The term "accompanied by" is not defined in the Immigration
and Nationality Act but is defined in 22 CFR 42.1 as follows:
"Accompanying" or "accompanied by" means, in addition to an alien in the
physical company of a principal alien, an alien who is issued an immigrant
visa within 4 months of the date of issuance of a visa to the principal alien,
within 4 months of the adjustment of status in the United States of the
principal alien, or within 4 months from the date of the departure of the
principal alien from the country in which his dependents are applying for

107

Interim Decision #2139
visas if he has traveled abroad to confer his foreign state chargeability upon
them. An "accompanying" relative may not precede the principal alien to the
United States.

The term "foreign state" is defined in 22 CFR 42.1 as follows:
For the purpose of according alternate chargeability pursuant to section
202(b) of the Act, the term "foreign state" is not restricted to those areas to
which the numerical limitation prescribed by section 202(a) of the Act applies
but includes dependent areas, as defined in this section, and independent
countries of the Western Hemisphere and the Canal Zone.

As a spouse, the beneficiary could conceivably strive to qualify
for either the second or the fourth exception. However, the fourth
exception is available only to an alien born in a foreign state in
which neither of his parents was born and in which neither of his
parents had a residence at the time of his birth. In the present
case we have insufficient information upon which to base either of
these required findings. Hence, we must rule out the fourth
exception upon the record before us.
The question then becomes: Does the beneficiary qualify for the
second exception under section 202(bX2)? In order to qualify, it
must be established (1) that he is an alien spouse, (2) that he will
be "accompanied by" his spouse within the meaning of that term's
definition found in 22 CFR 42.1, (3) that the accompanying spouse
was born in a "foreign state" as defined in 22 CFR 42.1, (4) that the
accompanying spouse either has received or would be qualified for
an immigrant visa, and (5) that there would be a visa available if
the beneficiary be charged to the foreign state of birth of the
petitioner.
The district director found the beneficiary qualified for an
exception under section 202(bX2). He noted that the beneficiary
was therefore entitled to alternate chargeability to the foreign
state of birth of the petitioner (Germany) if a consular' officer
found the beneficiary "otherwise qualified." Inasmuch as the
beneficiary quales for an exception under section 202(bX2) he is
alternately chargeable to the numerical limitation of 170,000
provided for in section 201(a) of the Act. Section 203(a) provides
that aliens who are subject to the numerical limitations in section
201(a) shall be allotted visas in the manner prescribed in subparagraphs 1 through 9 of section 203(a). The beneficiary, then, may be
accorded any classification under section 203(a) for which he is
eligible. The district director approved the petitioner's application
and accorded the beneficiary preference status under section
203(aX2) as the spouse of an alien lawfully admitted for permanent
residence. This was correct and we shall affirm the district director's order.
Both the appellate trial attorney and petitioner's counsel sug108

Interim Decision #2139
Bested at oral argument that the Board enter an order containing
a condition that the beneficiary must meet the definition of
"accompanied by" found in 22 CFR 42.1 at the time he is issued an
immigrant visa. We reject this suggestion because we do not
believe it necessary to enter a conditional order in this case. The
petitioner is already physically present within the United States.
Therefore, the only way the beneficiary might qualify under 22
CFR 42.1 as an alien "accompanied by" his spouse would be if he
were to be issued an immigrant visa "within 4 months from the
date of departure of the principal alien from the country in which
his dependents are applying for visas if he has traveled abroad to
confer his foreign state chargeability upon them." The consular
official to whom the beneficiary makes application for an immigrant visa will have no trouble deciding upon the facts before him
at that time whether the beneficiary then qualifies as an alien
"accompanied by" his spouse.
The district director's decision is affirmed and the following
order shall be entered.
ORDER: It is ordered that the order of the district director,
dated December '7, 1971, approving the petitioner's petition to
accord the beneficiary preference status as provided in section
203(aX2) of the Immigration and Nationality Act be and the same
is hereby affirmed.

109


Interim Decision #2705

MATTER OF PEREZ
In Visa Petition Proceedings
A-21445108

Decided by Board May 30, 1979
(1) In order for an adoption to be recognized for immigration purposes, it must conform to
the applicable law of the jurisdiction where it occurred as well as to the statutory
requirements of section 101(b)(1)(E) of the Immigration and Nationality Act, 8 U.S.C.
1101(b)(1)(E).
(2) Under Article 367 of the Civil Code and Article 886 of the Code of Civil Procedure of
Chihuahua, Mexico, adoptions by persons with descendants are not prohibited. In
addition, the Chihuahua Civil Code does not contain any provision forbidding the
adoption of a blood niece.
(3) The petitioner met her burden of proving that the beneficiary was her adopted child
where the adoption cunfointed with the law of the place where it occurred (Chihuahua,

Mexico) and where the evidence indicated that the beneficiary, a blood niece of the
petitioner, (1) was unmarried, (2) was adopted at the age of 12, (3) was in the legal
custody of her adoptive parents since the 1975 adoption, and (4) had resided with her
adoptive paren ts bince the adoption.
ON BEHALF OF PETITIONER:

Ruben Bonilla, Jr., Esquire
P. O. Drawer 5427
Corpus Christi, Texas 78405

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

The lawful permanent resident petitioner applied for preference
status for the beneficiary as her unmarried daughter under section
203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2).

The District Director denied the original petition on July 25, 1977. The
petitioner appealed and we remanded. On remand, the District Director, in a decision dated March 16, 1979, approved the petition and
certified the case to us for review on March 21, 1979. We affirm.
The petitioner, 55 years old, was born in Zacatecas, Mexico, and was
admitted to the United States as a lawful permanent resident on March
18, 1954. The beneficiary, 15 years of age, was born on May 30, 1963, in
Chihuahua, Mexico. She has been living with the petitioner and the
petitioner's husband in Corpus Christi, Texas, since the age of two and
was formally adopted by them on July 18, 1975, in Chihuahua, Mexico, at

the age of 12. The beneficiary is the blood niece of her adoptive parents.
743

Interim Decision #2705
The District Director predicated his original decision on Article 390 of
the Civil Code of Mexico which prohibited the adoption of a minor child
by persons with descendants. He concluded that since the petitioner and
her husband already had a son, the adoption of the beneficiary was
invalid and the petitioner could not, therefore, confer immigration
benefits on the beneficiary. We remanded the record, requesting that
the District Director consider the validity of the adoption under the law
of Chihuahua, Mexico, and produce material showing that the petitioner
had a son as contended in his decision. Although the record contained a
birth registration card and marriage certificate of the alleged son,
neither of these documents, nor other evidence in the record, in any way
tied that individual with the petitioner.
On remand, the petition was approved based on a report entitled
"Adoption—Chihuahua, Mexico" prepared by the Hispanic Law Division of the Library of Congress on February 8, 1978. 1. The report states
that taken together, Article 367 of the Civil Code and Article 886 of the
Code of Civil Procedure of Chihuahua, Mexico do not prohibit adoptions
by persons with descendants. In addition, the Civil Code does not
contain any provision forbidding the adoption of a blood niece.
In order for an adoption to be recognized for immigration purposes, it
/mist conform to the applicable law of the jurisdiction where it occurred
as well as to the statutory requirements of section 101(b)(1)(E) of the
Act, 8 U.S.C. 110I(b)(1)(E). Matter of Lee, Interim Decision 2649 (BIA
1978); see Matter of Garcia, Interim Decision 2630 (BIA 1978); Matter of
_Milton, Interim Decision 2620 (BIA 1977). Section 101(b)(1)(E) of the
Act provides, in pertinent part, that:
The term "child" means an unmarried person under twenty-one years of age who
a child adopted while under the age of fourteen years if the child has thereafter been
in the legal custody of, and has resided with, the adopting parent or parents for at least

two years. . . .

It appears from the record that the beneficiary is unmarried_ Her
birth record certifies that she was born on May 30, 1963. The court
decree of adoption issued on July 18, 1975, indicates that she was
adopted at the age of 12. In addition, it shows that the beneficiary has
.resided with the petitioner since the age of two. School certificates
contained in the record show that she attended Corpus Christi schools
from 1969 to 1977, which indicates that she has been in the legal custody
of the petitioner since the 1975 adoption. Therefore, the age, two-year
residency, and legal custody requirements of section 101(b)(1)(E) have
been satisfied.
In light of the report prepared by the Library of Congress, under
2

That report is included as an addendum.

744

Interim Decision #2705
the law of Chihuahua it would be irrelevant in the present case if the
petitioner had a son. We note that the record does not indicate that the
petitioner does, in fact, have a son. In addition, the adoption decree
states that the adoption occurred in accordance with Article 367 of the
Civil Code and Article 886 of the Code of Civil Procedure of Chihuahua,
which are the specific articles relied upon by the Library of Congress in

determining that under the law of that state persons with descendants
may adopt a minor child.
Based on the foregoing evidence, the petitioner has met her burden of
proving that the beneficiary is her child under section 101(b)(1)(E) of the
Act. Consequently, the beneficiary qualifies for preference status as the
petitioner's unmarried daughter under section 203(a)(2) of the Act. The
District Director's decision will be affirmed.
ORDER: The decision of the District Director is affirmed.
ADDENDUM
ADOPTION

Chihuahua, Mexico
The following appear to be the facts of this case: A child born on May
30, 1963, was adopted on July 15, 1975, by a married Mexican couple
who were residents of the United States. At the time of the adoption the
adoptive parents had a child of their own, born in the United States in
1948. The adopted child was the blood niece of the adopters. Taking into
consideration the fact that article 381 of the Civil Code of the State of
Chihuahua appears to imply that persons with descendants could not
adopt, the requester wishes to ascertain (a) whether this is a valid
adoption, and (b) if this adoption is more in the nature of a guardianship,
since it can be revoked by agreement of both parties.
The Law on Adoption.

At the time this adoption tookplace, in July of 1975, the law on adoption
in Chihuahua was found within the Civil Code in force in that state as of
April 22,1974.' Adoption proceedings were regulated by the provisions
of the Code of Civil Procedure of this state of April 22, 1974. 2 Although
the provisions of article 381 of the Civil Code appear to imply that
persons with descendants could not adopt, this is not the case in
Chihuahua. An examination of articles 367 of the Civil Code and 886 of
Cddigo Civil para el E. L. y S. de Chihuahua [Editorial Cajica, Peubla, 1975].
Cddiyu de Prucedimieraus Civiles punk cl E. L. y S. de Chihuahua [Editoral Cajica,
Puebla, 1976].
1

745

Interim Decision #2705
the Code of Civil Procedure would lead to the opposite conclusion. They
provide as follows:
Art. 367. Persons of legal age in the full exercise of their rights may adopt a minor or
an incompetent even if the latter is of legal age, provided that the adopter is no less than
10 years older than the person to be adopted and that the adoption is beneficial to the
latter.

Art. 886. A person who intends to adopt must prove [the following in court]:
I. That he or she is of legal age and at least 10 years older than the minor he or she
intends to adopt, or, in the case of an incompetent, only that the adopter is of legal age.
II.

That he or she has sufficient means to provide for the support and education of the

minor or the care and support of the incompetent, as if it were a child of his or her own,
in accordance with the personal circumstances of the would-be adopter.
III. That the adoption is beneficial to the person to be adopted.
The initial petition shall contain the name and age of the minor or incompetent and the
name and domicile of those persons who exercise parental authority or guardianship
over the latter or the names of the persons or institutions in charge of his or her
custody.

Those Mexican states that forbid adoption by persons who have
children of their own have a specific, not an implied, provision to this
effect, such as those of article 390 of the Civil Code and article 935 of the
Code of Civil Procedure of the Slate of Nuevu Leun. 2

In addition, the Civil Code of Chihuahua presently in force does not
contain any provision forbidding the adoption of a blood niece.
teevocation of Adoption
Concerning revocation of adoption, the Civil Code of Chihuahua pro-

vides as follows:
Art. 382. Adoption may be revoked:
I. When both parties agree to it, provided that the adopted is of legal age. If he or she
is not of legal age, it is necessary that the person who granted consent to the adoption,
as provided in article 374 (of this Code), grant consent [to the revocation of the
adoption].
..
Art. 884. In the case of article 382-I of the Civil Code, the judge shall decree the
revocation of adoption if he is convinced that the petition of the revocation is spontaneous and he finds that said revocation is suitable for the material and moral interests of
the adopted.
Art. 385. The decree of revocation of adoption annuls the adoption and restores the
matters to the status they had prior to the adoption.

An examination of the above provisions reveals that, as stated in the
letter of inquiry, an adoption may be revoked by agreement of the
parties; but it should be noted that said agreement is qualified by tv -No
requirements: (1) if the adopted person is not of legal age, consent to the
3 Cddigo Civil para el E. L. y S. de Nuevo Leon [Editorial Cajica, Puebla, 1976]; Cddigo
de Procedimientos Civiles pars el E. L. y S. de Nuevo Leon [Editorial Cajica, Mexico

City, 1973].

746

Interim Decision #2705
revocation of the adoption must be given by the person who gave
consent to the adoption, and (2) in spite of the consent of the parties to
the revocation, it is up to the court to issue a decree of revocation only if
it is convinced that the petition is spontaneous and it finds that it is in
the material and moral interests of the adopted. The court, not the
parties to the adoption, has the final word on revocations of adoptions.
III. Adoption and Guardianship

Under the laws of Chihuahua, as stated in its Civil Code, the law on
adoption possesses certain characteristics also found in the law of guardianship (tutela), such as the fact that both the adopted person and the

person under guardianship are subject to the parental authority of the
adopter and guardian, respectively (arts. 372 and 426). On the other
hand, guardianship is considered to be an obligation in the public interest and no one may be excused from performing it unless legal grounds
exist (art. 429); the person who refuses to perform guardian duties
without legal justification is responsible for damages and harm that may
occur to the minor or incompetent (art. 430), while adoption is a voluntary act of the adopter (art. 367), not a mandatory obligation. Other
substantial differences between these two institutions are that adoption

does not terminate with the coming of legal age of the adopted person,
while guardianship terminates when the ward reaches legal age or ceases
to be incompetent (arts. 442, 621, and 622); that the adoption creates
family bonds between the adopter and the adopted (art. 379) which do not
exist between a guardian and his or her ward; and finally, that those
rights concerning inheritance are found in adoption and not in guardianship.
IV. Conclusions

In concluding, the following may be stated under the laws of
Chihuahua: (a) a final adoption decree of a child that is the blood niece of
the adopters, that was duly registered in the office of the Civil Registry,
constitutes a valid adoption in that state; (b) although an adoption may
be revoked by the mutual consent of the parties involved, said consent is
subject to the approval of the court; and (c) although adoption shares
some of the legal characteristics of guardianship, there are substantial
differences between these two institutions that distinctly separate
them.
Prepared by Armando E. Gonzalez
Assistant to the Chief
Hispanic Law Division
Law Library, Library of Congress
February 1978

747