Interim Decision #2024

MATTER OF MARTINEZ AND LONDONO *
In Deportation Proceedings
A-18618218
A-18623304
Decided by Board February 11,1970
A nonimmigrant visitor for pleasure who accepts employment thereby fails
to comply with the conditions of his status and is deportable under section
241 (a) (9) of the Immigration and Nationality Act. [Matter of Wong, 11
I. & N. Dec. 704, reaffirmed.]

CHARGE:
Order: Act of 1952—Section 241 (a) (9) [8 U.S.C. 1251 (a) (9)]—Visitor-failed to comply (both).
ON BEHALF OF SERVICE:
Clay Doughty
Appellate Trial Attorney

ON BEHALF OF RESPONDENTS:

Leon Rosen, Esquire
11 West 92d Street
New York, New York 10036
(Brief filed)

The cases come forward on appeal by the respondents from the
decision of the special inquiry officer who found them deportable
as charged but granted the privilege of voluntary departure with
an alternate order that if they did not leave the United States
within 30 days, they be deported to Colombia. The respondents
admit the allegations of fact contained in the orders to show
cause but both deny that they are deportable as charged.
The respondents are unmarried male aliens, native and citizens
of Colombia, who were admitted to the United States as nonimmigrant .visitors for pleasure. Martinez was admitted at New
York on March 1, 1969 and Londono was admitted at Miami,
Florida on March 17, 1969. After admission both respondents
obtained employment at the same corporation in Hauppauge, New
York, where they are presently working. The period of time for
which they were permitted to remain in the United States has
* Reaffirmed. See 433 F.2d 635 (1970).

483

Interim Decision #2024
since expired. Because of accepting employment while in the
United States as nonimmigrants they were found deportable by
the special inquiry officer as being in violation of section
241 (a) (9) of the Immigration and Nationality Act, in that, after
admission as nonimmigrants under section 101 (a) (15) of the Act
they failed to comply with the conditions of such status.
Counsel argues that these respondents are not deportable as
charged because neither the Immigration and Nationality Act of
1952, as amended, nor any regulation promulgated by the Attorney General, prohibits a visitor for pleasure from obtaining
employment during his sojourn in the United States. He points
out, and it is conceded by the Service, that there is no specific section of the Act which sets forth that employment is precluded for
a nonimmigrant. Counsel then alludes to the portion of section
214 (a) of the Immigration and Nationality Act that provides for
the admission to the United States of nonimmigrants "at such
time and under such conditions as the Attorney General may by
regulations prescribe", and then points out that the Attorney
ieneral has never prescribed a regulation prohibiting employnent by a nonimmigrant. Counsel contends that this being the
;ase the respondents did not fail to comply with the conditions of
heir entry and are thus not deportable under section 241 (a) (9)
f the Immigration and Nationality Act. The special inquiry
fficer rejected this argument, and, after careful study of the
latter, we will affirm his decision that the respondents are
eportable as charged.
Counsel concedes that the exact question now raised has been
insidered by us in a number of previous cases' but argues that
ese decisions are not in accordance with the applicable provims of law and that the Board should now give further study to
is specific question.
All of the cases cited above deal with the question of whether a
nimmigrant who has been admitted for a specific purpose is
titled during his brief stay in the United States to accept
ployment, and all the cases hold that he is not. Prior to August
1958, 8 CFR 214.2(c) specifically prohibited the employment of
nonimmigrant. On that date and on several occasions subsemt thereto substantial portions of the Code of Federal Regulans and the Immigration and Nationality Act which related to
Matter of Boroumand, Interim Decision No. 1983 (BIA, 1969); Matter of
tg, 11 I. & N. Dec. 704 (BIA, 1966) ; Matter of Garvey, 10 I. & N. Dec.
(BIA, 1969) ; Matter of S—, 8 I. & N. Dec. 574 (BIA, 1960) ; see also
v. Robinson, 246 F.2d 739 (7 Cir., 1957).

484

1

Interim Decision #2024
the admission of nonimmigrants were revised and expanded. 8
CFR 214.2 (c) was rescinded and on October 3, 1965, section
212(a) (14) of the Immigration and Nationality Act, which contains the labor certification provisions applying to aliens who
come to the United States to perform skilled or unskilled work,
became law.
In the case of Wei v. Robinson, supra, which was decided when
8 CFR 214.2(c) was in effect, the court said, on page 746, that
even if there was no specific proscription against employment by
nonimmigrants, it would be impractical and unnecessary that
there be such a statutory interdiction in the case before it. In
that case Wei had been admitted to the United States temporarily
for the specific purpose of obtaining military training from the
United States Army. He completed his training course and then,
instead of returning to his native country of Formosa, he
remained in the United States and obtained employment. The
court held that this was at such variance with the purpose for
which he was admitted that he had obviously failed to maintain
the nonimmigrant status under which he was permitted to be in
the United States and he was deportable under section 241 (a) (9)
of the Act.
Matter of Bouroumand, Matter of Garvey and Matter of S—,
.supra, all decided since the rescission of 8 CFR 214.2(c), held
that nonimmigrant students who accepted employment without
permission had failed to comply with the conditions of their
status. In Matter of Wong, supra, which is on all fours with the
present case, the respondent was a temporary visitor for pleasure
who accepted unauthorized gainful employment, and we held that
this was inconsistent with his status and violated the terms of his
admission and he was thus deportable. We are not disposed to
reverse our decisions in these cases.
Although the present Act and the regulations pertaining thereto
contain no specific prohibition against employment by nonimmigrant visitors, we hold that such provision is unnecessary. We
call attention to the intent of Congress as set forth in Senate
Report No. 1137, 82d Congress, 2d Session, page 19, in which the
Judiciary Committee of the Senate in explaining the term "temporary visitor" among other things stated: "Under no circumstances are aliens admitted as temporary visitors for pleasure to
be permitted to work." Also, looking at the phrase "temporary
visitor for pleasure" in its plain and generally understood meaning, we cannot conclude that such visitor who obtains employment is carrying out the purpose for which he was admitted. In

485

Interim Decision #2024
the instant cases the respondents are gainfully employed five days
a week, eight hours a day. This renders it impossible to characterize their being in the United States as visitors for pleasure.
In reaching this conclusion we do not rely on a definition of
"visitor for pleasure" promulgated by the Department of State as
22 CFR 41.25, which definition was alluded to in Matter of Wong,
supra. That regulation stated that the term "pleasure" as used in
section 101 (a) (15) (B) of the Immigration and Nationality Act
refers to legitimate activities of a recreational character, including tourism, amusement, visit with friends or relatives and rest.
Counsel contends in his brief and at oral argument that the
Attorney General simply cannot adopt a State Department regulation because Congress did not empower the Secretary of State
to promulgate a regulation governing the conditions of admission
of a nonimmigrant, but rather it specifically empowered the
Attorney General to do so. However, since our decision is in no
way based on the State Department regulation, the question
raised is moot and it is not necessary for us to further consider
it. Further, our decision in the cases before us is not based in any
way upon the Form FS 257A, which presumably was handed to
the respondents when they entered the United States, which contains a notice to the alien who enters on a temporary visa that he
is not permitted to work.
Finally, the present law is replete with requirements and conditions relative to those who can work. For instance, under section
101(a) (15) (H) special classes of nonimmigrant aliens are admitted to perform temporary work. And, spouses of exchange visitors, who are classified by visa symbol J-2, can apply for permission to work, whereas the spouses of nonimmigrant students,
admitted under the symbol F-2, cannot work. The most impor:ant provision is section 212(a) (14), whose purpose is to protect
:he American labor market. This provides that those aliens
oming to the United States to perform skilled or unskilled work
nust obtain a certification from the Secretary of Labor that there
ire not sufficient workers in the United States to perform the
particular work and that the employment of the alien will not
adversely affect the wages and working conditions of the workers
n the United States similarly employed. The regulations pertainng to this section of law are very detailed. The 1968 Annual
Report of the Immigration and Naturalization Service, table 4,
page 34, shows that for the year ended June 30, 1968, the total
lumber of nonimmigrant visitors for pleasure admitted to the
Jnited States was 2,042,666. The very careful safeguards that

486

Interim Decision #2024
Congress has erected in the law to protect the American labor
market would go for naught if visitors for pleasure were free to
take gainful employment during the time of their authorized stay.
Construing the statute as a whole, we again arrive at the conclusion that a visitor for pleasure is not permitted to work and if he
does, he has failed to comply with the conditions of his status.
For these reasons we hold that the respondents are deportable
as charged and we will affirm the decision of the special inquiry
officer and will dismiss the appeals.
ORDER: It is ordered that the appeals be and the same are
hereby dismissed.
It is further ordered that, pursuant to the special inquiry
officer's order the respondents be permitted to depart from the
United States voluntarily within 30 days from the date of this
decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to
depart, the respondents shall be deported as provided in the special inquiry officer's order.

487


Interim Decision #2432

MATTER OF TADENA
In Deportation Proceedings
A-31363405-6-7-8

Decided by Board September 16, 1975
An alien admitted to the United States upon the presentation of an immigrant visa who in
subsequent deportation proceedings is the recipient of the benefits of section 241(f) of
the Immigration and Nationality Act, as amended, is an alien lawfully admitted for
permanent residence.
CHARGE:
Order: Act o:' 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable as immigrant
without valid immigrant visa (all respondents).
ON BEHALF OF RESPONDENTS:

ON BEHALF OF SERVICE:

Victor Agma:a, Jr., Esquire
15 South Hine Street
Honolulu, Hawaii 96813

Paul C. Vincent
Appellate Trial Attorney

On December 12, 1973, the immigration judge rendered his decision
concerning a husband and wife and their four children. The immigration
judge found that the adult aliens, the husband and wife, were not
deportable by virtue of section 241(f) of the Immigration and Nationality Act. The immigration judge, however, concluded that section
241(f) did not benefit the four children because they did not have the
qualifying relative required for the section 241(f) waiver. The immigration judge certified his decision involving the children to us for final
disposition; counsel for the minor respondents also appealed their eases.
The record will be remanded for further proceedings.
The four minor respondents, whose eases alone are before us, were all
under ten years of age at the time of the immigration judge's decision.
They, along with their parents, are natives and citizens of the Philippines. The minor respondents were admitted to the United States as
immigrants in April of 1972. Their admissibility depended upon their
father's stat-is as an alien lawfully admitted for permanent residence. It
is conceded that their father made certain misrepresentations in obtaining his immigrant visa. The minor respondents only contest deportability on the basis of section 241(f).
458

Interim Decision #2432
The immigration judge found that section 241(f) prevented the deportation of the parents of these minor respondents in part because of the
subsequent birth of a United States citizen child to the parents. The
immigration judge, however, concluded that the minor respondents had
no qualifying relative for section 241(f) purposes. We concur with the
immigration judge's ultimate holding that section 241(f) does not benefit
the minor respondents, although we disagree with his conclusion that
the parents are not now aliens lawfully admitted for permanent residence.
The minor respondents have been charged with deportability under

section 241(a)(1) as aliens who were excludable at entry under section
212(a)(20). In Matter of Montemayor, 15 L & N. Dec. 353 (BIA 1975),
we held that the interpretation of section 241(f) adopted by the Supreme
Court in Reid v. INS, 420 U.S. 619 (1975), precluded its application to
the precise charge of deportability alleged against these children.
Therefore, they are not benefited by section 241(f), and they are deportable as alleged by the Service.
The parents of the minor respondents, however, were not found
deportable by virtue of section 241(f). This determination was correct
under the ease law applicable at the time of the immigration judgP's
decision. The Service did not appeal the decision in the cases of the
parents. That decision is final and will not be disturbed.
Contrary to the immigration judge's view of this ease, the parents of
the minor respondents are now aliens lawfully admitted for permanent
residence. The immigration judge's finding that the parents are not
lawful permanent residents was based on court cases dealing with the
effect, for naturalization purposes, of section 241(f) on aliens who had
entered the United States under false claims to United States citizenship. See e.g. Yik Shuen Eng v. INS, 334 F. Supp. 897 (S.D. N.Y. 1971),
aff'd, 464 F.2d 1265 (C.A. 2 1972). The parents of the minor respondents, however, obtained their admission to the United States upon the
presentation of immigrant visas.
If adopted, the immigration judge's approach to section 241(f) would
leave any beneficiary of section 241(f) in limbo. The section 241(f)
recipient would be nondeportable, but he would not have any immigration status. However, the Act generally contemplates that an alien
lawfully in the United States will have a status permitting him to
remain. Cf. Matter of Loo, 15 I. & N. Dec. 127 (BIA 1974).
The Supreme Court's decision in Reid v. INS, supra, has resolved
most of the questions with respect to the interpretation of section 241(f).
We note that the Service would also consider the parents of the minor
respondents to be aliens lawfully admitted for permanent residence. See
Immigration and Naturalization Service Operations Instruction 241.2.
459

Interim Decision #2432
As lawful permanent residents, the parents of the minor respondents
are qualified to petition for second preference status on behalf of their
children. See section 203(a)(2), Immigration and Nationality Act. In
view of the peculiar facts of this case, the immigration judge's erroneous
conclusion, and the intervening decision in Reid v. INS, supra, we shall
remand the record to the immigration judge in order to afford the
parents of the minor respondents the opportunity to begin action which
may ultimately permit the minor respondents to receive adjustment of
status under section 245 of the Act.
ORDER: The record is remanded to the immigration judge for
further proceedings.

460


In DEPORTATION Proceedings
.r.utt OF M—

A-4511502
Decided by Board February 10,1967
Deportability—Section 241(a)(11), 1952 act—Conviction for growing opium
poppy without license.
Conviction under the Opium Poppy Control Act of 1942, 21 U.S.C. 188-188n,
for growing opium poppies without a license, constitutes a violation of a
s tatute governing or controlling the production of opium within the purview
of section 241(a) (11) of the Immigration and Nationality Act.
CHARGES :
Warrant: Act of 1924—Ineligible to citizenship at time of entry.
Lodged : Act of 1924—No immigration visa.
Act of 1952—Section 241(a) (11) [S U.S.C. 1251(a) (11)]—Drug
laws, etc., conviction: producing opium poppies without license
in violation of 21 U.S.C. 188-188n.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the special inquiry officer dated September 11, 1960, directing
that the respondent be deported on the charges lodged during the
course of the hearing.
The record relates to a native of India, citizen of Pakistan, who
last entered the United States during the month of December 1926
at Calexico, California, intending to remain permanently although
not in possession of an unexpired immigration visa. Deportability
on the documentary charge based upon the Immigration Act of
1924 is conceded. Deportation proceedings were begun in 1943, and
a number of orders and reopenings have been granted. Finally, on
SepLembei 21, 199, this Board directed that the deportation of tho
alien be suspended under the provisions of section 19(c) (2) (b) of
the Immigration Act of February 5, 1917, as amended. However,
on May 11, 1960, we granted the Service motiffn to reopen the proceedings to afford the Service an opportunity to lodge a charge
under section 241(a) (11) of the Immigration and Nationality Act
for consideration of whether respondent's conviction for violation
of the Opium Poppy Control Act of 1942 supported a charge under
181

that section and brought the respondent within tine bar of sectiofs
19(d) of the Immigration Act of February 5, 1917.
The lodged charge under section 241(a) (11) of the Immigration
and Nationality Act of 1952 is predicated upon the respondent's
conviction on March 22, 1955, in the United States District Court
for the Northern District of California, Northern Division, on three
counts of violations of sections 188-188n of Title 21, U.S.C.A., producing opium poppies without a license in June 1954. On appeal,
conviction on but two of the counts was affirmed: (1) knowingly
produced and attempted to produce the opium poppy, and (2)
knowingly permitted the production of the opium poppy on property under his control.' Respondent was sentenced to three years'
imprisonment, to he served ennourrently, and fined $500 on each
count. The issue is whether such a conviction of violation of 21
U.S.C. 188-188n supports the charge laid under section 241(a) (11)
of the Immigration and Nationality Act.
Section 241(a) (11), 8 U.S.C. 1251(a) (11), as amended by section
9 of the Act of July 14, 1960 (74 Stat. 505), provides:
Any alien in the United States * * • shall • • • be deported who— ■ • •
[1] is, or hereafter at any time after entry has been, a narcotic drug addict,
or [2] who at any time has been convicted of a violation of, or a conspiracy
to violate, any law or regulation relating to the illicit possession of or traffic
In narcotic drugs or marihuana, or [3] who has been convicted of a violation
of or n conspiracy to violate, any law or regulation governing or controlling

the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or [4] the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of
opium, coca leaves, heroin, marihuana, any salt derivative or preparation of
opium or coca leaves or isonipecaine or any addiction-forming or addictionsustaining opiate. (Bracket-enclosed enumeration of clauses added.)

Counsel in his brief and at oral argument contends that the respondent's conviction for violation of 21 U.S.C.A. 188-188n, otherwise known as the Opium Poppy Control Act of 1942 does not
come within the purview of section 241(a) (11) of the Immigration
and Nationality Act of 1952, as amended, which provides for deportation of an alien who at any time has been convicted of a violation of a law governing or controlling the production of opium.
Counsel for the respondent seizes upon the difference between
"opium poppy" in 21 U.S.C. 188-188n of which respondent was convicted and the term "opium" used in 8 U.S.C. 1251(a) (11) as a
defense against deportability on the narcotic charge.

After careful consideration of the arguments put forward by
counsel, we affirm the conclusion reached by the special inquiry
officer that respondent's conviction under the Opium Poppy Control
a Az Din v. United States, 232 F.2d 283 (C.A. 9, 1956), cert. den, 352 U.S.
827.

182

Act of 1942, 21 U.S.C. 188 188n, is a. violation of a statute con•
trolling the production of opium. The reasons underlying that
conclusion are fully set forth in Appendix "A" hereto, unreported
Matter of L—R—, A-5480711 (B.IIA., May 11, 1955), in which a
conviction for violation of the same section received extended consideration. The rationale of that decision is hereby incorporated
herein.
It is believed that cases cited by counsel 2 are inapposito to the
situation presented in this case. We do not believe that there is
involved in section 241(a) (11) of the Immigration and Nationality
Act, as amended, the same problem of statutory construction which
arose in the cases cited by counsel. The language of the statute is
clear. There is no dispute by counsel that opium is produced from
the opium poppy as found by the court in the case 3 which resulted
in sustaining the conviction of this respondent by the Court of
Appeals for the Ninth Circuit. Opium is the dried or inspissated
juice of the opium poppy, and the cultivation of the opium poppy
is necesm.ry to the production of opium.
It may he o'iserved from the legislative history that deportation
laws involving narcotics have been made more stringent in recent
years. Thus, the Act of February 18, 1931 (46 Stat. 1171) which
required a conviction and sentence for deportation for violation of
any law regulating traffic in narcotics was amended by the Act of
June 28, 1940 (54 Stat. 673) which eliminated the requirement of
a sentence and made a conviction alone sufficient for deportation.
Similarly, deportability was extended to include an alien convicted
of a State as well as a Federal narcotic law. In like fashion, section 241(a) (11) of the Immigration and Nationality Act was
amended by section 9 of the Act of July 14, 1960 (71 Stat. 505) to
add marihuana to the list of narcotic drugs, thereby exemplifying
the swift concern of Congress in remedying the construction placed
upon section 241 (a) (11) by the Ninth Circuit that marihuana was
not included within the term "narcotic drugs." 4
Since the respondent is deportable on a ground that brings him
within section 19(d) of the Act of 1917, he is ineligible for suspension of deportation. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
2 Fong Haw Tan v. Phelan, 333 U.S. 6; Hoy v. Mendoza-Rivera, 207 F.2d
451 (CA. 9, 1959), and Hoy v. Rojas-Gutierrez, 267 F.2d 490 (CA. 9, 1959);
Matter of L—, 5 L & N. Dec. 169.
3 Az Din v. United mates, 232 14'.2d 283.
4 Hoy v. Mendoza-Rivera, 267 F.2d 451 (C.A. 9, 1959), and Hoy v. RojasGutierrez, 267 F.2d 490 (C.A. 9, 1959).

183

APPENDIX "A"
BEF ORE THE BOARD
(May 11, 1955)
In re : L—RA 5480711
-

DISCUSSION: The case comes forward on appeal from the order
of the special inquiry officer dated April 6, 1955, ordering respondent deported on the charge stated in the warrant of arrest.
Deportation of the respondent is sought under the provisions of
section 241(a) (11) of the Immigration and Nationality Act of
1952 which provides in pertinent part for the deportation of any

alien:
• **

who at any time has been convicted of a violation of any law or
regulation relating to the illicit traffic In narcotic drugs, or who has been
convicted of a violation of any law or regulation governing or controlling the
* * * production * * * or the possession for the purpose of * * production
• * * of opium, coca leaves, heroin, marihuana, any salt derivative or preparation of opium or coca leaves or isouipecaine or any addiction-forming or
addiction-sustaining opiate.

On August 3, 1953, in the United States District Court for the
Northern District of California the respondent was convicted on
his plea of guilty for violation of sections 188-188n of Title 21,
United States Code, and was sentenced to pay a fine of $500 and
placed on probation for a period of two years. The indictment
charged that the defendant on or about June 11, 1953, willfully,
unlawfully and knowingly produced the opium poppy without having first obtained a license from the Secretary of the Treasury in
accordance with the provisions of sections 188-188n of Title 21,
United States Code Annotated. The applicable portion of this
statute reads as follows:
188b. It shall be unlawful for any person who is not the holder of a license authorizing him to produce the opium poppy, duly issued to him by the
Secretary of the Treasury in accordance with the provisions of sections 188188n of this title, to produce or attempt to produce the opium poppy, or to
permit the production of the opium poppy In or upon any place owned, occupiod, need, or controlled by him. (Dec. 11, 1942, ch. 720, 5 3, 56 Stat. 1040.)

The question presented is whether respondent's conviction of unlawfully and knowingly producing the opium poppy without having first obtained a licence in accordance with the provisions of
sections 188-188n of Title 21, United States Code, brings him within
the deportable provisions of section 241(a) (11) of the Immigration
alid. Nationality Act, supra. The law under which respondent was
convicted is the Act of December 11, 1942, known as the Opium
Poppy Control Act of 1942 (21 U.S.C. 188-188n). Section 188
184

Act is to discharge more effectively
the obligations of the United States under the International Opium
Convention of 1912, and the Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs of
1931; (2) to promote the public health and the general welfare;
(3) to regulate interstate and foreign commerce in opium poppies;
and (4) to safeguard the revenue derived from taxation of opium
and opium products. Section 188a(b) defines the term "produce"
or "production" to include the planting, cultivation, growth, harvesting, and any other activity which facilitates the growth of the
opium poppy. Section 188a(c) defines the term "opium poppy"
as including the plant Papaver Somniferum, any other plant which
is the source of opium or opium products, and any part of any such
plant. Section 188a(d) defines the term "opium" to include the
inspissated juice of the opium poppy, in crude or refined form; and
section 188a(e) defines the term "opium products" to include opium
and all substances obtainable from opium or the opium poppy, except the seed thereof. A Government witness, Chief Chemist of the
United States Internal Revenue Service, likewise testified that the
opium poppy is the primary source of opium and that raw opium
consists of the coagulated juice that is obtained from cutting the
pod of the opium poppy.
The Opium Poppy Control Act of 1942 received extended consideration in the case of Stutz v. Bureau of Narcotics,' which involved a suit by plaintiffs who were growers of the blue seeded
poppy (Papaver Somniferum) for its seed, an edible food product,
to enjoin federal government officials from interfering in any way
with the growing and production of their crop of poppies. The
court stated that the Opium Poppy Control Act does not purport to
regulate the production of an agricultural crop but is directed to
the growth of opium-yielding poppy plants within the United
States as the source, not of an edible food product, but rather of
raw opium; its effect upon the production of the poppy seed is
incidental only to its operation on a plant which produces both
narcotic drug and edible seed. The court noted that the primary
derivation of Congressional authority to exercise control by federal
legislation over the cultivation of the opium poppy is stated in the
declared purpose of the Opium Poppy Control Act, which is to discharge more effectively the obligations of the United States under
the International Opium Convention of 1912, and the Convention
for Limiting the Manufacture and Regulating the Distribution of
Narcotic Drugs of 1931. The preamble to the International Opium
Convention of 1912 (Treaty Series No. 612; 38 Stat. 1912, 1930),
to which the United States was a signatory, expresses the objecdeclares that the plirpnae. of the

1

56 F. Supp. 810 (N.D. Calif., N.D., 1944).

185

tives sought to be attained by that treaty in stating that the participating powers resolved to pursue progressive suppression of the
abuse of opium, morphine, cocaine, as well as drugs prepared or
derived from these substances which may give rise to analogous
abuses. One of the methods agreed upon by the International
Opium Convention of 1912 to accomplish the eradication of the
opium evil was through the exercise of control over the production
and distribution of raw opium. The later Convention for Limiting
the Manufacture and Regulating the Distribution of Narcotic Drugs
of 1931 (Treaty Series No. 863; 48 Stat. 1543), to which the United
States was signatory, was in furtherance of the same objective as
the International Opium Convention of 1912—the eradication of
the drug evil by rendering effective by international agreement the

limitation of the manufacture of narcotic drugs to the world's
legitimate requirements for medical and scientific purposes and by
regulating their distribution. The court observed that by the terms
of the International Opium Convention of 1912, the United States
obligated itself to control the production and distribution of raw
opium and that the provisions of the Opium Poppy Control Act
expressed the determination of Congress that effective control of
opium production and distribution necessitates legislation limiting
the proximate source of yield of the raw opium—the opium poppy
— whatever the purpose for which its cultivation is undertaken.
The court made it apparent that efficacious control over the production and distribution of raw opium could well depend upon
limitation of the cultivation of the opium poppy within. the United
States to legitimate medical and scientific needs only; that the
opium poppy was the immediate source from which the raw opium
was obtained; its cultivation might be undertaken without difficulty,
without detection, and for illicit purposes, even under the guise of
legitimate pretenses; the process of extracting the raw opium from
the opium poppy was a simple one; the growth of the opium poppy,
wherever undertaken, could reasonably be said to afford attractiveness to those seeking a source of opium supply either for the satisfaction of their own cravings or for the profits offered by the
contraband market; and this attractiveness could be expected to increase as suppression of the drug evil became progressively more
effective and other sources of drug supply became more scarce. The
court expressed itself as fully satisfied with the appropriate relativity of measures limiting the cultivation of the opium poppy to
the objectives of the treaty stipulation to control the production and
distribution of raw opium.
In view of the consideration set forth above, it is concluded that
respondent's conviction of 21 U.S.C. 188-188n is a violation of a
law governing or controlling the production of the narcotic drug,
186

opium,

al its very source, namely, the opium poppy . 2 It is con-

that the ground of deportability is sustained.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
cluded

2 See Matter of P—G--, 5-309, involving planting and cultivating loco weed
or cannabis saliva in violation of section 11530 of the Health and Safety Code
of California.

187


Interim Decision #2259

MAI. 1 ea OF HEITLAND

In Deportation Proceedings
A-19492601
A-17587648
Decided by Board January 25, 197.4
• (1) A "commercial or agricultural enterprise" within the meaning of 8 CFR
212.8(b)(4) requires a business venture productive of some service or commodity.
(2) The nature of an "investment" within the meaning of 8 CFR 212.8(b)(4) must
be such that it tends to guard against the possibility that the alien will
compete with American labor for available skilled or unskilled positions.
(3) A Florida land holding (which appears to be of a speculative nature) and a
savings bank account (which is more an accumulation of funds than an active
entrepreneurial undertaking) do not qualify as "investments" within the
meaning of 8 CFR 212.8(bX4) for the purpose of exemption from the labor
certification requirement of section 212(a)(14) of the Immigration and Nationality Act, as arnended.

(4) To meet the test of "substantial investment" within the meaning of 8 CFR
212.8(bX4) prior to its amendment of February 12, 1973, the investment must
tend to expand job opportunities or must be of an amount adequate to insure,
with sufficient certainty, that the alien's primary function with respect to the
investment, and with respect to the economy, will not be as a skilled or
unskilled laborer (Matter of Finau, 12 I. & N. Dec. 86, overruled).
(5) Where a truck valued at 13,400 is the sole property item used in a capacity
productive of a product or service in the alien's delivery and merchandise
business, the business is marginal, and rather than opening up new jobs the
business has placed him in competition with other small delivery service
drivers doing skilled or unskilled labor, the alien is ineligible for exemption
from the labor certification requirement pursuant to 8 CFR 212.8(b)(4), under
either the regulation as amended on February 12, 1973, or as it existed prior to
that date.
CHARGES:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrantremained longer (female respondent)

Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(aX1))—Excludable at entry under section 212(aX20) [8 U.S.C. 1182(aX20)}-immigrant not in possession of proper document
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Jules E. Coven, Esquire
One East 42nd Street
New York, New York 10017

David L. Milhollan
Appellate Trial Attorney
Alexander Schonfeld
Trial Attorney

563

Interim Decision #2259
The Immigration and Naturalization Service has appealed the
October 4, 1972 decision of an immigration judge which granted
the respondents' applications for adjustment of status under
section 245 of the Immigration and Nationality Act. The appeal
will be sustained and the case remanded for further proceedings.
The alien respondents are husband and wife and natives of
Germany. The male respondent is a citizen of Canada and the
female respondent is a citizen of Germany. The deportability of
each respondent has been conceded and the only issues presented
by this appeal involve the grants of adjustment of status.
Section 245 of the Act specifies that an alien seeking this
descretionary remedy initially must establish that he has been
inspected and admitted or paroled into the United States, that he
is eligible to receive an immigrant visa and admissible for permanent residence, and that an immigrant visa is immediately available at the time his application is approved. The respondents have
been inspected and admitted as nonimmigrants and they appear
to satisfy the "qualitative" provisions of the Act. Therefore, the
question of their statutory eligibility centers on whether they
qualify for the immigrant status which they seek and on the
availability of visas for aliens of that status.
The respondents have sought this relief as nonpreference immigrants from the Eastern Hemisphere. A review of the Department
of State Bulletins on Visa Availability indicates that nonpreference visas were currently available for Eastern Hemisphere immigrants during the months surrounding the hearing and decision
below. Consequently, the respondents would have been statutorily
eligible for adjustment of status if, at the date of the immigration
judge's decision, they satisfied the requirements of section
212(aX14) of the Act.
Section 212(a)(14) basically precludes the issuance of visas to

certain aliens, including nonpreference immigrant aliens, who
seek to enter the United States for the purpose of performing
skilled or unskilled labor, unless they have obtained the required
labor certification. The male respondent concedes that he must
work to support himself and his family; furthermore, he acknowledges that he has not obtained labor certification. He nevertheless
contends that he qualifies for an exemption from the labor certification requirements of section 212(a)(14) as an "investor" within
the contemplation of 8 CFR 212.8(b)(4). On the date of the immigration judge's grant of the respondents' section 245 applications, that
regulation stated, in relevant part:
The following persons are not considered to be within the purview of section
21200(14) of the Act and do not require labor certification:

564

Interim Decision #2259
(4) an alien who will engage in a commercial or agricultural enterprise in
which he had invested or is actively in the process of investing a substantial
amount of capital.

The pertinent portion of this regulation, however, was modified
subsequent to the Service's appeal in this case. See 38 Fed. Reg.
1380, January 12, 1973; 38 Fed. Reg. 8590, April 4, 1973. The
regulation now permits the labor certification exemption for
(4) an alien who establishes ... that he is seeking to enter the United States
for the purpose of engaging in a commercial or agricultural enterprise in
which he has invested, or is actively in the process of investing, capital
totaling at least $10,000, and who establishes that he has had at least 1 year's
experience or training qualifying him to engage in such enterprise....

It appears that the Service will consider any request for the
"investor" exemption filed prior to the effective date of the new
rule under whichever formulation of the regulation is more favorable to the alien, Matter of Ko, Interim Decision No. 2201 (Dep.
Assoc. Comm. 1973). We shall follow that approach for purposes of
this appeal.
The male respondent presently operates a merchandise and
message delivery service. He owns a truck which appears to be
equipped with a two-way radio. Orders for the pickup and delivery
service are received over the two-way radio from a dispatching
firm that subcontracts delivery work to numerous independent
drivers. In 1970 the male respondent's gross income from the

operation of this enterprise was $14,000; his net income was $4,500.
It appears that the truck and the radio, which he values at $3,400,
satisfy the capital requirements of his business. His claim to the
"investor" exemption, however, includes a present "investment" of
several thousand dollars in a savings bank account, and a 1964
"investment" of $3,600 in Florida land. He maintains that the land
is now worth $11,000.
In order to assess whether the male respondent qualifies as an
investor under either formulation of the regulation, we must
initially ascertain the amount of his investment. This determination will depend on which of his property holdings can be considered as investments within the scope of the regulation. For a
capital expenditure to qualify as an investment under either
approach to the regulation, it is required to be made in a "commercial or agricultural enterprise." Although this phrase is not defined, we have concluded that the Florida land holding and the
savings bank account do not qualify as investments within the
contemplation of the regulation.
The land holding appears to be of a speculative nature, and the
savings bank account, when viewed from the male -respondent's

perspective, is more an Accumulation of funds than an active
565

Interim Decision #2259
entrepreneurial undertaking. A "commercial or agricultural enterprise," as we interpret this regulation, requires a business venture
productive of some service or commodity. The regulation would be
inconsistent with the statute were it to be construed to grant a
labor certification exemption to an alien with an idle investment of
a modest magnitude who might then be forced to enter the normal
labor market in order to supplement the income from the investment. Rather than permitting an alien to usurp an existing job
opportunity, the nature of the investment must be such that it
tends to guard against the possibility that the alien will compete
with American labor for available skilled or unskilled positions.
Given the present character of these property items, we cannot
say that they tend to expand the job market, or otherwise insure
that the male respondent will not occupy an existing position
readily available to American workers. Since the truck is the only
property item which the male respondent employs in a capacity
productive of a commodity or service, we find that the truck
represents the extent of his investment within the regulation.
Since the value of this motor vehicle appears to be no more than
$9,400, it is evident that the male respondent has not satisfied the
$10,000 requirement of the present formulation of the regulation.
He nevertheless maintains that this business investment, standing alone, qualifies him for the labor certification exemption under
the earlier wording of the regulation as interpreted by our holding
in Matter of Finau, 12 I. & N. Dec. 86 (B IA 1967). In Finau we held
that the requirement of the old regulation regarding the investment of a "substantial amount of capital" did not mandate an
absolute minimum capital outlay, but rather that the term "substantial" embraced a relative concept necessitating that the investment must be substantial only in relation to the total capital
requirements of the particular enterprise. We also examined the
skills which the alien possessed and, considered the likelihood of
success of the enterprise, even though these factors appear to be
quite unrelated to whether a given investment is "substantial" or
not. However, in view of the rationale behind the enactment of
section 212(a)(14), we are convinced that the Finau approach to
the regulation is unsatisfactory.

Section 212(a)(14) was incorporated in the Act as a measure
designed to protect the livelihood of workers lawfully present
within the United States. It was intended to prevent "an influx of
aliens entering the United States for the purpose of performing
skilled or unskilled labor where the economy of individual localities
is not capable of absorbing them at the time they desire to enter
this country." 1 Consequently, the language of either approach to
1952 U.S. Code Cong. & Ad. News 1705.

566

'

Interim Decision #2259
the regulation must be construed in a manner consistent with the
congressional purpose of safeguarding existing employment opportunities. This suggests an interpretation that would assure that
the entering alien not be an individual likely to replace an existing
American worker or fill a function readily available to American
aspirants.
The Finau, approach is inadequate for several reasons. Initially,

the test we adopted there regarding the substantiality of an
investment does not provide the necessary assurance that the
alien's capital expenditure will not in fact tend to foster his
entrance into the labor market as a skilled or unskilled laborer.
Instead, a minimal capital investment in a marginal business
might provide the necessary impetus for the alien to begin competing with existing workers when the economy of the given locality
is not yet capable of adequately absorbing the alien. In addition,
Finau, by requiring that the alien show adequate skills and a
reasonable possibility of success, added elements to the regulation
which do not bear on the substantiality of the investment. Finally,
a literal reading of Finau might lead to an unwarranted denial of
the "investor" exemption for an alien who seeks to enter the
United States for the purpose of investing a large amount of
capital in an enterprise whose magnitude is such that the alien's
capital contribution is relatively insignificant. Accordingly, Matter
of Finau, supra, is overruled.
It is therefore necessary for us to adopt a test concerning
substantial investments which comports with the congressional
policy contained in section 212(a)(14). The investment must be
more than a mere conduit by which the alien seeks to enter the
skilled or unskilled labor market. Consequently, the investment
either must tend to expand job opportunities and thus offset any
adverse impact which the alien's employment may have on the
market for jobs, or must be of an amount adequate to insure, with
sufficient certainty, that the alien's primary function with respect
to the investment, and with respect to the economy, will not be as

a skilled or unskilled laborer.
The male respondent has applied $3,400 of his own funds to a
business which appears to be marginal in nature. Instead of being
an investment with expansive employment propensities, his action

has evidently placed him in competition with numerous other
small delivery service drivers. This minimal investment does not
adequately insure that the male respondent will not primarily
function as a skilled or unskilled laborer, nor does it tend to offset
any adverse impact which his employment may have on the job
market. We do not deem this to be a substantial investment.
The male respondent's employment does not appear signifi567

Interim Decision #2259
candy different from other taxi or delivery jobs. He is in a position
which essentially involves skilled or unskilled labor. If there is a
true shortage of American workers willing to accept this type of
job, then obtaining labor certification would appear to be the
proper procedure for the male respondent to follow. He is not,
however, entitled to the "investor" exemption from the labor
certification requirements of the Mt.

Consequently, an immigrant visa was not and is not immediately available to the male respondent. He therefore was not
statutorily eligible for a grant of section 245 relief Similarly, the
grant of that relief to the female respondent was inappropriate,
because without her husband to support her she must also obtain
a labor certification to qualify for an immigrant visa. The decision
of the immigration judge was incorrect and the Service's appeal
will be sustained.
As a result of the action taken by the immigration judge, the
issue of voluntary departure was never reached. We shall therefore remand this case for further proceedings.
ORDER: The appeal is sustained.
Further order:The grant of adjustment of status to the respondents is withdrawn and the case is remanded to the immigration
judge for any further proceedings that may be required.

568


Interim Decision #2678

MATTER OF CARRILLO
In Deportation Proceedings
A.-31073471
Decided by Board November 28, 1978
An alien convicted of "Unlawful Carrying of a Firearm during the Commission of a

Felony" (18 U.S.C. 924(c)) is not deportable under section 241(a)(11) of the Immigration
and Nationality Act, 8 U.S.C. 1251(a)(11), even though the underlying felony is the
illicit possession of heroin, since 18 U.S.C. 924(c) is not "a law . . . relating to the illicit
possession of a narcotic drug." Castaneda de Esper v.1NS, 557 F.2d 79 (6 Cir. 1977) and
Blotter of Velasco, Interim Decision 2601 (BIA 1977) followed. Matter of Chang,
Interim Decision 2550 (BIA 1977) distinguished.
CHARGES:

Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251 (a)(11)J—Convicted of any law
relating to the illicit possession of or traffic in narcotics
Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)]—Convicted of a crime
involving moral turpitude committed within five years after
entry and sentenced to confinement for a year or more
ON BEHALF OF RESPONDENT:

David E. Marcus, Esquire
1221 State Street
P. 0. Box 1631
El Centro, California 92243

BY: Milhollan, Chairman; Moniatis, Maguire, and Farb, Board Members. Concurring
Opinion: Appleman, Board Member_

In a decision dated July 22, 1976, the immigration judge found the
respondent deportable under section 241(a)(11) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(11), as an alien who had been con-

victed under a law relating to the illicit possession of narcotics. The
respondent was found to be ineligible for any form of relief from deportation, and he was ordered deported to Mexico. He has now appealed,
arguing that his conviction was not under a law relating to the illicit
possession of narcotics. The appeal will be sustained.
The respondent, a native and citizen of Mexico, was admitted to the
'Waited States as a lawful permanent resident on March 12, 1971. On
April 19, 1976, he was convicted in the United States District Court for
the District of Arizona upon a plea of guilty to violation of 18 U.S.C.
924(c), "Unlawful Carrying of a Firearm during the Commission of a
625

Interim Decision #2678
Felony" 1, to wit, possession of heroin with intent to distribute (21
841(a)(1) and (b)).
An Order to Show Cause was issued on June 23, 1976, charging the
respondent with deportability under sections 241(a)(4) and 241(a)(11) of
the Act, 8 U.S.C. 1251(a)(4) and 1251(a)(11). 2 At the deportation hearing on July 22, 1976, the Service trial attorney conceded (Transcript p.
14) and the immigration judge found that the Service had not met its
burden of establishing that the respondent was deportable under section 241(a)(4). However, he found that, since the underlying felony upon
which the respondent's conviction under 18 U.S.C. 924(c) had been
based was the illicit possession of heroin, the respondent had been
convicted under "a law . . . relating to the illicit possession of a narcotic

drug . . . ." He therefore found that the respondent was deportable
under section 241(a)(11).
In Matter of Velasco, Interim Decision 2601 (BIA 1977), we held that
a conviction under 18 U.S.C. 4 for misprision of the felony of illicit
possession of marihuana was not a conviction under a law "relating to the
illicit possession of . . . narcotic drugs . . . ." Relying upon the holding
of the United States Court of Appeals for the Sixth Circuit in Castaneda
de Esper v. INS, 557 F.2d 79 (6 Cir. 1977), we declined to interpret a
conviction for misprision to incorporate the underlying narcotic-related
felony for the purposes of section 241(a)(11) of the Act. In Castaneda de
Esper v. INS, supra, the court held that when a criminal statute "does
not by its language indicate [that] it was contemplated to be a 'narcotic
law'," and historically has constituted a "criminal offense separate and
distinct from the [underlying] felony," such a statute is not a "law
relating to . . . narcotic drugs . . . ."
The respondent was convicted under 18 U.S.C. 924(e) for the unlawful
carrying of a firearm during the commission of a felony. Like the
misprision statute involved in Castaneda de Esper v. INS, supra, and
Matter of Velasco, supra, 18 U.S.C. 924(c) is not by its terms a "narcotic law." Castaneda de Esper, supra, at 8. Rather, a conviction under 18
U.S.C. 924(c) may be based upon any underlying felonious act.' Siirsi18 U.S.C. 9240 states, in pertinent part: "Whoever— (1) uses a firearm to coxrarnit
any felony for which he may be prosecuted in a court of the United States, or (2) carries a
&rearm unlawfully during the commission of any felony for which be may be prosecuted Ili
a court of the United States shall . . . be sentenced to a term of imprisonment for not less
than one year nor more than ten years."
2 Under section 241(a)(4), an alien is deportable who is convicted of a crime involving
moral turpitude committed within five years after entry and who is sentenced to confinement for a year or more. Under section 241(a)(11), in pertinent part, an alien is deportable
who has been convicted of a violation of "any law . . . relating to the illicit possession
of . narcotic drugs . . . ."
Cf. Matt e r of Chang, Interim Decision 2550 (ZIA 1977), where we held that, since 0 1

of a843(b)unlawfseocmiatnflyocehmisn

626

Interim Decision #2678
larly, possession of a firearm during the commission of a felony is an
offense separate and distinct from the underlying felony. United States
v. Williams, 523 F.2d 1203 (5 Cir. 1975); United States v. Ramirez, 482
F.2d 807 (2 Cir.), cert. denied, 414 U.S. 1070 (1973). Therefore, notwithstanding the fact that the underlying felony may, in a particular
case, be a narcotic-related offense, we find that 18 U.S.C. 924(c) itself is
not a "law relating to the illicit possession of . . . narcotic drugs . . . ."
Accordingly, the respondent's conviction under that statute does not
give rise to his deportability under section 24I(a)(11) of the Immigration
and Nationality Act. The appeal will be sustained, and the proceedings
will be terminated.
ORDER: The appeal is sustained, and the proceedings are terminated.
CONCURRING OPINION: Irving A. Appleman, Board Member.
I am in agreement with the majority opinion with respect to the
narcotics charge. The charge based on conviction of a crime involving
moral turpitude was not sustained by the immigration judge and no
cross appeal was filed by the Service to preserve the charge. However,
were that charge before us, I would be disposed to question the summary disposition given it by the immigration judge.
This alien was convicted under 18 U.S.C. 924(c) of unlawful carrying
of a firearm during commission of a felony "as charged in Count 2 of
the Indictment." Count 3 of the indictment charged the violation occurred during "commission of the offense of possessing with intent to
distribute heroin." This type of statute and conviction might reasonably
seem to require an examination of the felony for which the firearm was
being carried—not for purposes of the narcotics charge, for the reasons
noted in the majority decision, but to determine the turpitudinous or
nonturpitudinous nature of the principal offense. See U.S. ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2 Cir. 1933); U.S. ex rel. Robinson v. Day,
51 F.2d 1022 (2 Cir. 1931); Bisaillan v. Hogan, 257 F.2d 435, 437 (9
Cir.), cert. denied, 358 U.S. 872 (1958); Matter of S—, 2 I. & N. Dec.
559, 570 (A.G. 1947) (manslaughter); Matter of R—, 1 I. & N. Dec. 540
(BIA 1943) (burglary Scl degree); Matter of R—P—, 4 I. & N. Dec. 607
MIA 1952) (contributing to the delinquency of a minor); Matter of W—,
4 I. & N. Dec. 241 (BIA 1951) (unlawful entry of a building); Matter of
N—, 8 I. & N. Dec. 466 (BIA 1959) (malicious mischief); Matter of

felony) makes specific and exclusive reference to subsections I and II of the Comprehen-

sive Drug Abuse Prevention and Control Act, Pub. L. 91-518, Title II §101,84 Stat. 1242
(1970), a conviction under that statute constitutes a conviction within the ambit of aectiort
212(a)(23) of the Immigration and Nationality Act.

627

Interim Decision 42678
McNaugh,ton, Interim Decision 2663 (BIA 1978) (conspiracy); cf. Matter
of Sloan, 12 I. & N.. Dec. 840 (BIA 1966, A.G. 1968) ("variant" rule).

Since the issue is not before us it needs neither elaboration nor
resolution at this time.

628


MA

R OF M—

In DEPORTATION Proceedings
A-7266391
Decided by Board December 1,1960
Crime involving moral turpitude—Forgery of public documents, swindling, and

violation of domicile, Italy.
(1) Forgery of public documents in violation of sections 275, 278, and 284 of
the /taiian Criminal Code of 1889 and sections 476 and 482 of the Criminal
Code of 1930 Is a crime involving moral turpitude.
(2) Swindling In violation of section 413 of the Italian Criminal Code of
1889 and section 640 of the Criminal Code of 1930 also involves moral
turpitude.
(3) The. offense of violation of domicile under section 157 of the Criminal
Code of 1889 does not involve moral turpitude.
CHABoEs:
. Order : Act of 1952—Section 241 (a ) (1) [8 U.S.C. 1251 (a) (1) I—Excluda

able—Convicted of forgery (twice), swindling (twice), and fraud
under Italian Penal Code.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Es.cludable—Visa Invalid—Procured by fraud or misrepresentation.
Lodged : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludaable Convicted of forgery (twice) and swindling (three times)
under Italian Penal Law.

BEFORE THE BOARD

DISCUSSION: The respondent appeals from an order entered by
the special inquiry officer on December 11, 1959, directing his deportation as an alien who was excludable at the time of entry in
that he had been convicted of crimes involving moral turpitude and
in that he presented an immigration visa not valid because procured
by fraud and misrepresentation (8 U.S.C. 1251(a) (1) ). Exceptions
have been taken to the finding of deportability.
The respondent, male, married, 59 years of age, concedes that he
is an alien, a native and citizen of Italy, who last entered the United
States for permanent residence through the port of New York on
August 17, 1949. He denies the remaining allegations in the order
to show cause, to wit:
4. On November 15, 1941, you were convicted in the Court of
Appeals, Palermo, Italy, for the offense of forgery and fraud.

5. On June 12, 1996, you were convicted in the Court of Appeals in Palei.uio, Italy, for the offense of swindling and
violation of domicile.
6. On June 18, 1925, you were convicted in the Court of Appeals, Palermo, Italy, for the offense of swindling and
forgery.
7. You failed to reveal your conviction record when you applied
for your visa on June 21, 1949, at Palermo, Italy.

The respondent upon advice of counsel refused to testify concerning his alleged convictions in Italy, claiming privilege under the
Fifth Amendment to the Constitution of the United States. The
Government's case rests upon a preliminary statement taken from
the respondent on July 8, 1958 (exh. 4), together with Italian court
records duly certified by vice consuls of the United States at
Palermo, Italy, on February 19, 1957, and May 22, 1958 (exhs.
6 and 7).1
An investigator of the Immigration and Naturalization Service
identified the typewritten transcript entered as exhibit 4 as a sworn

statement taken from the respondent on July 8, 1958. The investigator testified that the statement was taken with the assistance of
an Italian interpreter; that the respondent made some corrections
which he initialed; that the statement was read to the respondent
in the Italian language; and that the respondent signed the statement and initialed each page. The investigator further testified,
and exhibit 4 shows, that the rezpundent identified as relating to
him the records of the Italian court proceedings entered as exhibits
2A, 6 and 7.
Exhibit 2C is a translation of exhibit 2A, a record of the proceedings before the Court of Appeals at Palermo, Italy, and the
judgment rendered by that court on November 15, 1941. This record shows that the Court of Appeals sustained the respondent's
conviction on June 2, 1941, by the Tribunal of Palermo of being an
accomplice in the crime of destroying official court documents in
violation of sections 476 and 482 of the Italian Criminal Code of
1930. The Court of Appeals also found the respondent guilty of
the crime of "continuous swindling" (a violation of section 640 of
the 1930 Code) in that he did obtain various sums of money by
tricking the other codefendants into believing, contrary to the truth,
that with his assistance they would not have to suffer the consequences of their convictions for violations of the Export Trade
-

Mark Law.

The Supreme Court of Caseation (Italy) denied the respondent's
appeal on May 21, 1945, for the reason that it was inadmissibble.
3

Translations of the Italian court documents

exhibit

20 and

attr7bea

to exhibits 6 and 7.

133

are a part of the record u

However, it ruled that in the respondent's case the crime of "swindling" was extinguished by an amnesty. An Italian amnesty is of
no benefit to the respondent for immigration purposes (Matter of
B—, 7 I. & N. Dec. 166, B.I.A., Apr. 17, 1956).
Exhibit 6, with translation attached, is a judgment of conviction
rendered by the Civil and Penal Tribunal of Palermo; Sixth Section, on June 12, 1926. The Tribunal denied the respondent's
appeal from a conviction and sentence by the Praetor of Palermo
on October 29, 1925, to confinement at hard labor for six months
and a fine of 300 liras for the crime of swindling of 65 liras and
for breaking into the apartment of one C—P— (violation of domicile). The fact that the penalty was pardoned does not benefit the
respondent in an immigration proceeding

(Matter of G

—

, 5

-

129

(B.I.A., Feb. 17, 1953)).
Exhibit 7, with translation attached, is a record of the proceedings before the Court of Appeals for the District of Palermo, Third
Penal Section. The Court of Appeals on June 18, 1925, affirmed the
respondent's conviction by the Tribunal of Palermo of the crimes
of forgery and swindle in connection with obtaining and cashing a
money order. The court found the respondent guilty pursuant to
the provisions of sections 413, 278 and 284 of the Italian Criminal
Code of 1889.
A preponderance of substantial and probative evidence establishes
that the respondent was convicted in Italy in 1925, 1926 and 1941
of certain offenses described in exhibits 2A, 6 and 7 as "forgery and
continuous swindling" (exh. 2A), "swindling and violation of domicile (exh. 6), and "forgery and swindling" (exh. 7). The principal issue before us is whether these crimes, as a matter of law,
involve moral turpitude.
Whether a particular crime committed in a foreign jurisdiction

involves moral turpitude must be determined by standards prevailing in the United States. 37 Op. Atty. Gen. 293 (1933) ; 39 Op.
Atty. Gen. 95, 96 (1937) ; 39 Op. Atty. Gen. 215, 220 (1938). Counsel on appeal urges that when judged by legal standards prevailing
in the United States the crimes committed by the respondent in
Italy and described in the Italian court documgrits do not involve
moral turpitude. Counsel also maintains that the Italian system
of jurisprudence does not provide the constitutional guarantee of
"innocent until proven guilty" and, therefore, the respondent's conviction does not meet an accepted otandard which prevails in the
United States.
It is well settled that when a record of conviction is introduced
as evidence in an immigration proceeding the nature of the crime
is conclusively established by that record. United States ex rel.
Zaffarano v. Corsi. 63 F.2d 757, 758 (C.C.A. 2, 1933). In deter134

mining moral turpitude, the crime as defined by statute and as limited by the record of conviction must inherently and necessarily
involve an evil intent or depraved motive. United States ex rel.
Mongiovi v. Karnut16, 30 F.2d 825 (W.D. N.Y., 1929) ; United Stales
ex rel. Meyer v. Day, 54 F.2d 336 (C.C.A. 2, 1931) ; United States
ex rel. Shiadzien v. Warden, 45 F.2d 204 (E.D. Pa., 1930).
We may look beyond the foreign statute under certain circumstances to consider such facts as may appear from the record of
conviction or the admissions of the alien and reach an independent
conclusion as to whether the offense is one which under our law
involves moral turpitude (Matter of T—, 2 22, 42 (Atty. Gen.,
Feb. 24, 1944) ). We have applied this rule when it is difficult to
determine whether the foreign statute defines offenses which are designated as crimes under our laws (Matter of T—, supra).
Exhibit 9 is a compilation of the various sections of the Italian
Criminal Codes of 1889 and 1930 under which the respondent was
convicted. It was prepared by Dr. Fran Gjupanovich of the European Law Division, Law Library of Congress. A translation of
the substantive provisions defining the crimes of which the respondent was convicted is set forth in Appendix A attached to this
opinion.
A crime defined by statute may or may not require an evil
intent and, therefore, may or may not involve moral turpitude
(Matter of G—, 1 103 (B.I.A., Jan. 21, 1943)). If the definition
of the crime eliminates motive or intent, and the alien may be convicted although his conduct was prompted by innocent motives,
then his crime does not involve moral turpitude. United States ex
rel. MyUtz.? v. Uhl ; 203 Fed. 152 (S.D. N.Y., 1913), aff'd 210 Fed.
860; United States v. Oarrollo, 30 F. Supp. 3 (W.D. Mc., 1939).
It is clear from a reading of the several statutes set forth in
Appendix A that they are silent with regard to a depraved motive
or an evil intent as an element thereof. The special inquiry officer
concedes that sections 476, 482 (forgery of public documents), and
640 (swindling) of the Italian Criminal Code of 1930 do not mention the element of an evil intent as a requirement for conviction.
He maintains that mens rea is an essential concomitant for guilt
under the Italian Code of 1930, relying on our decision in Matter
of A—, 7 —626 (B.I.A., Dec. 12, 1957). 2
The Board in Matter of A—, supra, had before it the issue of whether
of the crime
of receiving stolen goods as defined by section 648 of the Italian Criminal
Code of 1930. The statute did not, in express terms, require that the accused
have knowledge that the property was stolen or otherwise unlawfully acquired. Research of Italian law and the decisions of Italian courts made it
clear that the accused must have actual or implied knowledge that the propknowledge that the property was stolen is en easential element

135

The special inquiry officer with regard to the respondent's conviction for offenses defined by the Italian Criminal Code of 1889
is of the opinion that section 413 (swindling) manifests that an
evil intent is required for guilt thereunder. Relative to the offenses
defined by section 157 (violation of domicile) and sections 275, 278
and 284 (forgery of public documents), the special intluiry officer

of the opinion that an evil intent or a depraved motive is not a
required element for any of them.
Here we are faced with an interpretation of foreign laws which
define offenses in terms unlike those found in similar offenses under
our common law system of jurisprudence. This is precisely the
situation where we may look beyond the foreign statute to consider
is

such facts as may appear from the record of conviction or from

other sections of the foreign criminal codes concerned to reach an
independent conclusion as to whether the offenses are ones which
under our law involve moral turpitude. (Cf. Matter of T—,
supra.)

Accordingly, with the assistance of the Law Library of Congress
we have made a study of the Italian Criminal Codes of 1889 and
1930 to determine whether a conviction may be had in the several
offenses committed by the respondent without proof of criminal
intent. Section 45, paragraph 1, of the Italian Criminal Code of
1889 (see Appendix B) states in substance that no one may be

punished for a crime unless he wanted to commit the act which
constitutes the crime, except when the law otherwise makes an individual responsible for it, as a consequence of his act of commission or omission. The general rule appears to be that crimes are
punishable only if the acts and the ensuing violations of law by an
individual are voluntarily committed. 3
The Supreme Court of Cessation, Italy, has interpreted this provision as follows:
For a crime to be distinguished from a petty offense the element of intent
to do what was actually done must be present.
The act which constitutes the crime consists in the agent's intent to do a
thing which the law specifies as a crime.
A crime of any kind cannot exist unless the intent to commit the act or
the omission which constitutes a violation of the law is uresent. 3

The 1930 Italian Criminal Code, section 43 (see Appendix B),
states that an offense is committed with criminal intent (dolo) when
erty was stolen or otherwise unlawfully acquired in order to obtain a conviction under the statute. We do not consider our decision in Matter of A—,
supra, as a precedent for the special inquiry officer's ruling that the mans rea
is an essential concomitant for guilt under the 1930 Italian Criminal Code.
3 Codice Penale con la Giurisprudenza e gli Atti
(Criminal Code,
Annotated, with Court Decisions of Official Documents) ; Barbera, G., editor;
Firenze: 1910. DD. 38, 102, 117, 118, 120 and 121.

136

the offender has foreseen and desired the injurious or dangerous
occurrence which is the result of his act and upon which the law

makes dependent the presence of the crime. The foreseeability of,
and desire to accomplish the injurious and dangerous occurrence
is a theory accepted by the 1930 Code. Section 43 specifically provides for criminal intent, criminal negligence and a third kind of
intent called preterintentional. 4
The Supreme Court of Cassation, Italy, has ruled as follows with
regard to the element of criminal intent mentioned in sections 42
and 43 of the Italian Criminal Code of 1930:
Knowledge of the illegality of a particular act is not an element required
for the presence of criminal intent. Knowledge and desire to produce an effect
as a result of one's own act of commission or omission is sufficient. 5
The subjective basis for criminal responsibility for a crime committed with
criminal intent is without doubt the intent of willfulneaa and not that of
anticipation. . .. since he who anticipates that the event will certainly take
place and acts with adequate means desires the event itself and therefore
(acts) with criminal intent (dolo).e
Criminal Intent is preaent in the perpetrator when he sate with intent directed toward achieving a definite criminal purpose ..

It is self-evident from a reading of the Italian records of conviction that some of the acts committed by the respondent were immoral when judged by standards prevailing in the United States.
The record of the respondent's 1941 conviction (exhs. 2A and C)
shows that he altered, destroyed or simulated the destruction of
official court records of conviction for a consideration, thereby
obtaining for himself an unjust gain to the detriment of others.
Exhibit 6, the record of the respondent's conviction in 1926 for
"swindling," shows that the respondent led one C—P— to believe
that he wished to redeem from a pawn some property belonging to
her, thereby "grasping 65 lire from her . . ." Exhibit 7, the record
of the respondent's 1925 conviction, states in substance that the
respondent was an accomplice in a fraudulent undertaking "with the
intent of cashing the money orders . . . (and) necessarily took part
in the swindling itself" (p. 4, translation of exh. 7).
The offenses defined by sections 275, 278, 284 and 413 of the
Italian Criminal Code of 1889 and sections 476, 482 and 640 of the
Italian Criminal Code of 1930 (see Appendix A), when considered
in light of the acts elm:roll-I against the respondent in the records of
conviction (exhs. 2A and C, 6 and 7) and those provisions of both
4

Dirritto Penis (Criminal Law), General Part, 4th ed.; Bettiol, Giuseppe;

1068, pp. 842 245, 981_
Repertorio Generale Anniale (Annual General Collection of Italian Supreme Court Cases) ; Jannuzzi, Angelo, editor, Vol. 1, Milano : 1957, p. 1000,
Palermo:

-

Case No. 3.
Mid. (1958 Reports), p. 894, Case No. 10.
Ibid., p. 894, Case No. 13.

137

the 1889 and 1930 Codes which make "criminal intent" an integral
part of the Italian statutes here under consideration, are, when
judged according to standards prevailing in the United States,
crimes involving moral turpitude.
We affirm the special inquiry officer's conclusion that the offense
defined by section 157 - of the Italian Criminal Code Of 1889 does

not involve moral turpitude. It is our opinion that this offense
comes within the exception set forth in section 45 of the 1889 Code
(see Appendix B) and, therefore, mans rea is not an essential
concomitant for guilt.
Counsel's argument that the respondent's conviction in Italy does
not meet standards which prevail in the United States because the
Italian system of jurisprudence does not provide the constitutional
guarantee of "innocent until proven guilty" is without merit. There
is no provision in the immigration laws to the effect that a foreign
ennvintinn must conform to the nonstitutional guarantees of the

United States. Furthermore, determination of constitutional questions is a judicial and not an administrative function. Marbury v.
Madison,i. Cranch (5 U.S.) 137; Smith. v. Indiana, 191 U.S. 138, 148.
The respondent, when he obtained his visa (exh. 5), failed to
reveal his criminal convictions. We agree with the special inquiry
officer that the misrepresentation was material and that the visa
the respondent presented was not valid because procured by fraud
and misrepresentation.

The findings of fact entered by the special inquiry officer in his
opinion of December 11, 1959, are hereby affirmed. Conclusion of
law No. 1 is hereby amended to provide for the respondent's deportation as an alien "who has been convicted of a felony or other
crime or misdemeanor involving moral turpitude prior to entry to
the United States under section 3 of the Act of February 5, 1917, to
wit: Forgery on two occasions and swindling on three occasions
under the Italian Penal Codes of 1889 and 1930."
The order entered by the special inquiry officer on December 11,
1959, is hereby affirmed. The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed.
APPENDIX A

Italian Criminal Code
I. :tabstantive provisions of the Italian Criminal Code

of 1889

under which the respondent was convicted.
Sec. 413. Whoever, by trick or subterfuge capable of cheating or taking by
surprise another's good faith, leads someone into error and obtains for himself or others an unjust gain to the detriment of another person, shall be
138

punished by confinement at hard labor for not more than three years and a
fine of not less than one hundred liras.
Sec. 157. Whoever arbitrarily Introduces himself into, or remains in, another person's dwelling, or the appurtenances of the same, against the express
wish of the individual who has the right to exclude him, or introduces himself therein or remains there secretly or by fraud, shall be punished by confinement at hard labor for not less than one nor more than thirty months.
Sec. 275. A public official who, in the performance of his official duty,
wholly nr in part, falsely makes or (materially) alters a genuine document
which may cause public or private damage, shall be punished by confinement
at hard labor for not less than five years no (sic) more than twelve years.
Sec. 278. Whoever, not being a public official, perpetrates a forgery of a
public document in the manner specified In sec. 275, shall be punished by
confinement at hard labor for not less than three years nor more than ten
years; and, if the document is presumed by law to be genuine until charges
of forgery are made, the confinement at hard labor shall not be for less than
five years.
Sec. 284. For the purpose of the application of the provisions of the preceding sections, individuals who have authority to draw up documents which
the law considers to involve a public trust, are deemed to be equal to public
officials; and holographic wills, negotiable instruments and certificates of stock
transferable by endorsement of the bearer, are deemect to be equal to public
documents.

II. Substantive provisions of the Italian Criminal Code of 1930
under which the respondent was convicted.

Sec. 476. Forgery of public documents committed by a public official. A
public official who, in the performance of his official duties, draws up, wholly
or in part, a false document, or alters a genuine one, shall be punished by
confinement at hard labor for not less than one nor more than six years.
If the forgery relates to a document, or part thereof, which is held to be
genuine until charges of forgery are made, the confinement at hard labor shall
be for not less than three nor more than ten years.
Sec. 482. Forgery committed by a private individual. If any of the acts
specified in secs. 476, 477 and 478 are committed by a private individual, or
by a public official outside the scope of his employment, the pertinent punishments specified in the said sections, reduced by one third, shall apply.
Sec. 640. Swindling. Whoever, by trick or subterfuge, leads another into
error and obtains for himself or for others an unjust gain to the detriment
of another person, shall be punished by confinement at hard labor for not
less than six months nor more than three years and by a fine of not less
than 9,000 nor more than 80,000 liras.
APPENDIX B

Provisions of the Italian Criminal Code Relating

to Crinanal Intent

I. The Italian Criminal Code of 1889.
nne may be punished for a crime unless he wanted [intended
to commit] the act which constitutes the crime, except when the law otherwise makes an individual responsible for it as a consequence of his act of
commission or omission.
in petty offenses everyone is responsible for his own act or omission, unless
it is proved that he wanted to commit the act contrary to law.
see_ 1,5 No

139

II. The Italian Criminal Code of 1930.
Sec. 42. Responsibility for criminal intent (dolo) or criminal negligence
(eolpa), or for a crime [committed] preterintentionally (delitto preterintenzionale). Objective responsibility. No one may be punished for an act of
commission or omission considered an offense by law unless he has committed
it knowingly and willfully.
No oue may be punished for an act considered a crime by law unless he
has committed it with criminal intent except in cases in which the law expressly states that such crime is committed with constructive intent or through
criminal negligence.
The law shall determine the cases in which the intent is otherwise charged
against the offender as a consequence of his act of commission or omission.
In petty offenses each individual shall be responsible for his own knowing
and willful act of commission or omission, regardless' of whether it is committed with criminal intent or through criminal negligence.
See. 43. Mental element of an offense. An offense [shall be considered
committed]:
with criminal intent (doloao) or intentionally when the. offender has foreseen and desired, as a consequence of his own act of commission or tanissiou,
the injurious or dangerous occurrence which is the result of his act of commission or omission and upon which the law makes dependent the presence of
the crime;
preterintentionally (preterintenzionale) or unintentionally (contro l'inten.ztione) when an injurious or dangerous occurrence derives from the act of
commission or omission which is more serious than the one desired by the
offender ;
through criminal negligence (colpago) or uuluLeutivnally (contra Vintonaiono)
when the offender did not desire, although he foresaw, the occurrence which
took place as a result of criminal negligence, imprudence, or lack of skill, or
failure to abide by laws, regulations, orders or instructions.
The distinction between an offense committed with criminal intent and one
committed through criminal negligence established by the present section for
crimes, shall apply also to petty offenses whenever, in regard to these, the
penal law makes a legal effect dependent upon such a distinction.

140


MATTER

or W----

In VISA PETITION Proceedings
A-12094371
Decided by Board February 4, 1961
Illegitimate child—Legitimation in Surinam—Requires marriage of natural
parents.
Petition by natural father to confer third preference status on child born out
of wedlock in Surinam is denied in the absence of evidence showing that
the child has been legitimated or adopted within section 101(b) (1) of the
Immigration and Nationality Act. Under the civil law of Surinam, formal
acknowledgment or recognition is not equivalent to legitimation which requires the marriage of the natural parents.
BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the District Director, New York District, dated November 1,
1960, denying the visa petition for the reason that the beneficiary
is not a "child" as defined in section 101(b) (1) of the Immigration
and Nationality Act in that she is not a legitimate child since the
petitioner was never married to her mother, nor was the beneficiary
otherwise legitimated in accordance with the terms of section 101
(b) (1) (C) of said Act.
The petitioner, a native and citizen of Surinam, 41 years old,
male, a permanent resident alien, seeks preference status under section 203(a) (3) of the Immigration and Nationality Act on behalf of
the beneficiary, who was born in Paramaribo, Surinam, on February 21, 1947.
The documents submitted disclose that the beneficiary was born
out of wedlock; that she was recognized on October 20, 1947, first
by her mother and then by her father, the petitioner; and that in
accordance with the Surinam Civil Law the beneficiary was recognized as a legally recognized child of whom the guardianship remained with the mother in accordance with Article 405, paragraph 2,
of the aforementioned law. Another document shows that in the
Civil Register of Births for Paramaribo, both the father and the
mother acknowledged the beneficiary as their natural child on October 20, 1947. The natural parents of the beneficiary never married
223

each other but the natural father married another woman in Paramaribo, Surinam, on February 2, 1959.
The petitioner submitted a statement dated July 19, 1960, from
a member of the bar of the Surinam Court of Justice who, after
reciting the facts of the birth and acknowledgment, states that
according to Article 405 of the Surinam Civil Code a minor not

born out of marriage or not legitimated by subsequent marriage of
his parents stands under guardianship of the parent that acknowledges the child first; that in the present case the mother, therefore,
has the guardianship of the minor beneficiary; that the father does
not have the guardianship of the child; that according to Article
325 of the Surinam Civil Code, a child not born out of marriage
can be legitimated by the subsequent marriage of its parents when
the parents before their marriage acknowledged the child as their
child but that this Article is not applicable in the present case
(presumably, because the natural parents were never subqpqrarmtly
intermarried).
It appears, therefore, that the beneficiary is the illegitimate child
of her father, the petitioner, and has never been legitimated. The
petitioner, in connection with the appeal, states that the acknowledgment under the laws of Surinam is equivalent to her being his child
ever more than would be the case of a legal adoption in the United
States. However, while this may be true for the purpose of giving

the child the right to the petitioner's surname and for inheritance
purposes, it is apparent that under the opinion of law submitted
by the petitioner the child was and remains illegitimate. There
has been no -evidence submitted that the child was ever adopted by
the petitioner so that she might be considered under section 101
(b) (1) (E) of the Immigration and Nationality Act. The appeal
from the denial of the visa petition mubt be dismissed on the ground

that the beneficiary fails to qualify as a child as defined in section
101(b) (1) of the Immigration and Nationality Act as a legitimate,
legitimated, or an adopted child.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed

224