Interim Decision #2906

MATTER OF FRENTESCU

In Exclusion Proceedings
A-23364219
Decided by Board June 23, 1982
(1) An alien who has been convicted of a crime involving moral turpitude is not statutorily
ineligible for asylum and withholding of deportation.
(2) Withholding of deportation and asylum are not available to an alien who, having been
convicted by afinal judgment of a "particularly serious crime," constitutes a danger to
the community of the United States.
(0) A 'pox ticularly serious crime" under section 243(h)(2)(B) of the Immigration and
Nationality Act, 8 U.S.C. 1253(h)(2)(B), is not the equivalent of a "serious nonpolitical
crime" under section 243(h)(2)(C) of the Aet, and is, in fact, more serious than a
"serious nonpolitical crime."
(4) A determination of whether a crime is a "pal ticultuiy serious crime" will depend upon
the specific facts in each case and, in judging the seriousness of a crime, the Board of
Immigration Appeals will consider such factors as the nature of the conviction, the
circumstances and underlying facts of the conviction, the type of sentence imposed, and,
most importantly, whether the type and circumstances' of the crime indicate that the
alien will be a danger to the community.
EXCLUDABLE:

Act of 1952—Sec. 212(a)(9) [8 U.S.C. 1182(a)(9)] — Convicted of a crime
involving moral turpitude

ON BEHALF OF APPLICANT:

ON BEHALF OF SERVICE:

Juan M. Soliz, Esquire
1661 S. Blue Island Avenue
Chicago, Illinois 60608

Samuel Der-Yeghiayan
General Attorney

By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
In an oral decision on June 9, 1981, the immigration judge found the
applicant excludable under section 212(a)(9) Of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(9), as an alien who had been convicted
of a crime involving moral turpitude, denied his applications for asylum .
and withholding of deportation, and ordered that he be excluded and
deported from the United States. The applicant has appealed from the
denial of asylum and withholding of deportation. The record will be
remanded_
The applicant, a 27-year-old single male alien, is a native and citizen of
Romania. He was indefinitely paroled into the United States on April 9,

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1980, pursuant to section 212(d)(5) of the Act. On Novewber 20, 1980,
he was convicted in the Circuit Court of Cook County, Illinois, of
burglary, in violation of Chapter 38, section 19 1 of the Illinois Revised
Statutes.' He was sentenced to time served (3 months) and. was placed
on probation for one year.
At his hearing, the applicant, through couhsel w admitted that he had
been convicted of the crime of burglary in Illinois. Burglary with intent
to commit theft is a crime involving moral turpitude. See Matter of De
La thus, 18 UN Dee. 140 (BIA 1981); Matter of Leyva, 16 I&N Dec.
118 (BIA 1977); Matter of Scarpulla, 15 I&N Dec. 139 (BIA 1974).
Thus, the applicant was properly found ex cludable under sectiori 212(a)(9)
of the Act.
Because the applicant submitted an application for asylum at the
initial hearing, the hearing was adjourned in order to obtain the Department of State's advisory opinion. This opinion, in pertinent part, advises
as follows:
-

In uul view, the likelihood of perspentinn upon return to Romania was established when
Mr. Frentescu was granted refugee status and paroled into the United States in 1980.
Since that time, conditions have not changed in Romania and the forcible return of Mr.
Frentescu to that country would most likely entail serious consequences, such as
imprisonment, for him.

The immigration judge considered the Department of State's letter
but found that the applicant was ineligible for asylum because he had
been convicted of burglary, a serious crime involving- moral turpitude.
The immigration judge added that he would deny asylum, as a matter of
discretion, because the applicant had committed a crime involving moral
turpitude while in the country that gave him refuge.
The only issue on appeal is whether the immigration judge properly
denied the applicant's request for asylum and withholding of deportation.
The applicant contends that his conviction for burglary does not bar him
from eligibility for asylum inasmuch as burglary is not a "particularly
serious crime" and, even if it is, he is not a danger to the community.
Withholding of deportation as well as asylum is not available to an
alien who, having been convicted by a final judgment of a "particularly
serious crime, constitutes a danger to the community of the United
States." Section 243(h)(2)(B) of the Act; 8 C.F.R. 208.8(f)(iv).
In order to determine whether the applicant in this proceeding is
eligible for relief, we first must ascertain the meaning of "particularly
serious crime" as used in the Immigration and Nationality Act. Although
the specific language chosen by Congress reflects that a "particularly
serious crime" is more serious than a "serious nonpolitical crime," nei'

As relevant, this section provides that a person commits burglary when without authority he knowingly enters or without authority remains within a building, or any part
thereof, with intent to commit therein a felony or theft.

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Interim Decision #2906
ther the Act nor the pertinent legislative history,' the 1967 Protocol
Relating to the Status of Refugees, 3 or the Handbook on Procedures
and Criteria for Determining Refugee Status (Geneva, 1979) specifically

defines a "particularly serious crime." In fact, the only definition of
crime, found in the Handbook, is the definition of a "serious nonpolitical
crime," which is as follows:
What constitutes a "serious" non-political crime for the purposes of this exclusion clause
is difficult to define, especially since the term "crime" has different connotations in
different legal systems. In some countries the word "crime" denotes only offences of a
serious character. In other countries it may comprise anything from petty larceny to
murder. In the present context, however, a "serious" crime must be a capital crime or a
very grave punishable act. Minor offences punishable by moderate sentences are not
grounds for exclusion under Article 1 F (IV' even if technically referred to as "crimes" in
the penal law of the country concerned.'
A refugee committing a serious crime in the country of refuge is subject to due process
of law in that country. In extreme cases, Article 33 paragraph 2 of the Convention
permits a refugee's expulsion or return to his former home country if having been
convicted by a final judgement of a "particularly serious" common crime, he constitutes
a danger to the community of his country of refuge."

The concept of a "particularly serious crime" is one that is of first
impression before this Board. No definition or interpretation of a
"particularly serious crime" is contained in the Act, the Protocol, or the
Handbook. The term is not analogous to any of the crimes specified in
the Act.? We note that when Congress classified crimes within sections
212 and 242 of the Act, no reference was made to a "particularly serious
See H.R. Rep. No. 96-781, 96th Cong., 2d Sess. 20, re-printed in [1980] U.S. Code
Cong. & Ad. News 160, 161.
3 19 U.S.T. 6223 (Part 5 196$), T.I.A.S. No. 6577, 606 U.N.T.S. 267.
Reference is made to Article 1 F (h) of the 1951 Convention Relating to the Status of
Refugees, 189 U.N.T.S. 137. Under this provision, status as a refugee is not applicable to
any person with respect to whom there are serious reasons for considering that he has
committed a serious nonpolitical crime outside the country of refuge prior to his admission
to that country as a refugee.
Paragraph 155.
Paragraph 154.
We disagree with the immigration judge's conclusion that the applicant is statutorily
barreddrom withholding of deportation and asylum because he had been convicted in the
united States of a crime involving moral turpitude. we do not believe Congress intended
for section 243(h)(2)(B) of the Act or for 8 C.F.R. 208.8(f)(iv) to be so construed. Neither
section 243(h)(2)(B) nor 8 C.F.R. 208.8(f)(iv)•specifically prohibits an alien who has been
convicted of a crime involving moral turpitude from obtaining relief. Further, no crossreference has been made to the section of the Act which excludes an alien who has been
convicted of a crime involving moral turpitude. See section 212(a)(9) of the Act; cf. section
241(a)(4) of the' Act (deportability). MoreoYer, the immigration judge apparently incorporated the language of section 243(h)(2)(C) and 8 C.F.R. 208.8(f)(v) (whereby an alien is not
eligible for withholding of deportation or asylum if there are serious reasons for considering that he has committed a serious nonpolitical crime outside the United States prior to
his arrival) into section 243(h)(2)(13) of the Act. See generally Matter of Ballester-Garcia,
•

4

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crime." No administrative history or case law has been presented before
, this Board defining or otherwise interpreting "particularly serious crime."
Thus, we cannot set forth an exact definition of a "particularly serious
crime" at this time. Howeyer, there are certain attributes of this concept which can be characterized in general terms. At the outset, it
should be clear that a "particularly serious crime" is not the equivalent
of a "serinns nonpolitical crime." Further, a "particularly serious crime"
is more serious than a "serious nonpolitical crime," although many crimes
may be classified both as "particularly serious crimes" and as "serious
nonpolitie al crimes." While there are crimes which, on their face, are
"particularly serious crimes" or clearly are not "particularly serious
crimes," the record in most proceedings will have to be analyzed on a
case-by-case basis. In judging the seriousness of a crime, we look to
such factors as the nature of the conviction, the circumstances and
underlyirkg facts of the conviction, the type of sentence imposed, and,
most importantly, whether the type and circumstances of the crime
indicate that the alien will be a danger to the community. Crimes against
persons axe more likely to be categorized as "particularly serious crimes."
Nevertheless, we recognize that there may be instances where crimes
(or a crime) against property will be considered as such crimes.
We find that this applicant is not statutorily ineligible for asylum or
withholding of deportation as he is not an alien whose conviction comes
within the provisions of section 243(h)(2)(B) of the Act or within the
provisions of 8 C.F.R. 208.8(f)(iv). On the record before us, we do not
find that the applicant has been convicted of a "particularly serious
crime." We do not condone his crime, in essence, burglary with intent to
commit theft. However, considering the totality of the circumstances
before us concerning this crime, we do not find it to be of such a particularly serious nature as to preclude relief. The crime was an offense
against property, rather than against a person. Although the applicant
did enter a dwelling; there is no indication that the dwelling was occupied or that the applicant was armed; nor is there any indication of an
aggravating circumstance. Further, the applicant received a suspended
sentence, after spending a relatively short period of time in prison (3
months).- Such sentence, as viewed by the state circuit court judge,
reflects upon the seriousness of the applicant's danger to the community.
• In view of our finding, we believe that the record should be returned
to the immigration judge for a determination of whether the applicant

17 I&N Dec. 592 (BIA 1980); Matter of Rodriquez Palma, 17 I&N Dec. 465 (MA 1980).
Ile found that the applicant had been eonvief pri of a "serious crime" rather than a
"particularly serious crime" as required by section 243(h)(2)(B) of the Act and by 8 C.F.R.
208.8(t)(iv).
-

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Interim Decision #2906 .
has established a well-founded fear of persecution. * Accordingly, the
record will be remanded.
ORDER

The record is remanded to the immigration judge for

foregoing opinion and the entry
further proceedings consistent ""of a new decision.,
FURTHER ORDER: Should a decision on remand be adverse to
the applicant, an appropriate order shall be entered and the record shall
be certified to us for review.

2

We are aware that the immigration judge denied asylum as a mater of disclaim'.

However, under the facts before_ us, we believe that it was inappropriate to deny discretionary relief.

-


Cite as 26 I&N Dec. 674 (BIA 2015)

Interim Decision #3850

Matter of Juan Manuel GARCIA-RAMIREZ, Respondent
Decided October 28, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary
departure or return does not break the alien’s continuous physical presence for
purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration
and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that
he or she was informed of and waived the right to such a hearing, regardless of
whether the encounter occurred at or near the border. Matter of Avilez, 23 I&N Dec.
799 (BIA 2005), clarified.
(2) Evidence that an alien who had the right to a hearing before an Immigration Judge
was fingerprinted and/or photographed before being allowed to voluntarily depart is
not enough, in itself, to demonstrate a waiver of the right to a hearing or to show
a process of sufficient formality to break continuous physical presence. Matter of
Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), followed.
FOR RESPONDENT: George E. Lee, Esquire, Alpharetta, Georgia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Gene P. Hamilton, Assistant
Chief Counsel
BEFORE: Board Panel: COLE, PAULEY and WENDTLAND, Board Members.
PAULEY, Board Member:

In a decision dated July 15, 2013, an Immigration Judge pretermitted the
respondent’s application for cancellation of removal under section
240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)
(2012), finding that the respondent could not demonstrate the requisite
period of continuous physical presence because it was broken by his
voluntary return to Mexico in 2002. The respondent has appealed from that
decision. The appeal will be sustained and the record will be remanded to
the Immigration Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who last entered the
United States without inspection on an unknown date. He was served with
a notice to appear on May 7, 2012, charging that he is an alien who is
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Interim Decision #3850

present in the United States without having been admitted or paroled. The
respondent does not dispute that he is removable as charged.
In proceedings before the Immigration Judge, the respondent submitted
an application for cancellation of removal, which states that he first entered
the United States on January 22, 1999. The Department of Homeland
Security (“DHS”) offered into evidence a US-VISIT report indicating that
since the time of the respondent’s initial entry, he was apprehended several
times at or near the border and was returned to Mexico. During each of
those encounters, the respondent was photographed in a Government
facility, but it is not clear whether he was fingerprinted.
Although the respondent does not dispute the contents of the US-VISIT
report, he states that since his arrival in the United States, he made only two
departures, one of which was on December 7, 2002. Because the
respondent was served with a notice to appear on May 7, 2012, this
departure occurred within the 10-year period during which he was required
to show continuous physical presence. The Immigration Judge found that
the respondent’s voluntary return at that time broke his physical presence
and concluded that he is therefore ineligible for cancellation of removal.
The respondent contends that his encounter at the border in 2002 should
not constitute a break in his continuous physical presence because he was
only briefly detained and returned to Mexico. He asserts that he was picked
up near the border but was never given any documents informing him of his
legal rights or an opportunity to appear before an Immigration Judge.
According to the respondent, he did not knowingly agree to depart the
United States under the threat of removal proceedings.

II. ISSUE
The issue before us is whether documentation showing that the
respondent was returned to Mexico at the border after being photographed
and possibly fingerprinted, but not indicating that he was advised of his
right to appear before an Immigration Judge, is a “formal, documented
process” sufficient to break his continuous physical presence for purposes
of establishing eligibility for cancellation of removal under Matter of
Avilez, 23 I&N Dec. 799, 805 (BIA 2005).

III. ANALYSIS
Addressing the question whether an alien’s voluntary departure or return
results in a break of continuous physical presence in Matter of Avilez,
23 I&N Dec. at 805, we held that

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Interim Decision #3850

an immigration official’s refusal to admit an alien at a land border port of entry will
not constitute a break in the alien’s continuous physical presence, unless there is
evidence that the alien was formally excluded or made subject to an order of
expedited removal, was offered and accepted the opportunity to withdraw his or
her application for admission, or was subjected to any other formal, documented
process pursuant to which the alien was determined to be inadmissible to the
United States.

It is undisputed that the respondent was not made subject to an order of
expedited removal. Nor was the opportunity to withdraw an application for
admission offered and accepted. The relevant question before us, then, is
whether the respondent was subjected to “any other formal, documented
process” pursuant to which he was found inadmissible. Id. In Avilez, we
noted that evidence of such a process might include
testimony or documentary evidence of a legally enforced refusal of admission and
return such as a Record of Deportable/Inadmissible Alien (Form I-213), a Notice of
Action-Voluntary Departure (Form I-210), an IDENT printout, affidavits or
statements of the alien or immigration officials, photographs, fingerprints, or other
appropriate forms and official records of the DHS.

Id. at 806 (emphasis added).
Although the taking of photographs and fingerprints in conjunction with
a voluntary return may be part of a “formal, documented process,” we
determined in our companion case today that it is insufficient to meet the
requirements of Matter of Avilez without any evidence that it was
associated with a legally enforced refusal of admission and return. Matter
of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015). Thus, when an alien
has the right to appear before an Immigration Judge, evidence that
photographs and fingerprints were taken in conjunction with a voluntary
departure or return is insufficient to break the alien’s continuous physical
presence in the absence of evidence that he or she was informed of and
waived the right to a hearing.1
1

Some departures will break physical presence even if the alien has not been advised of
and waived the right to appear before an Immigration Judge. But such situations involve
more than the alien merely being photographed and fingerprinted. For example, in
Matter of Velasquez-Cruz, 26 I&N Dec. 458 (BIA 2014), we concluded that a break in
continuous physical presence occurred where an alien had departed the United States
following a criminal conviction for illegal entry. In support of our ruling, we cited
Ascencio-Rodriguez v. Holder, 595 F.3d 105, 113−14 (2d Cir. 2010), where the court
observed that a conviction after a guilty plea to the crime of illegal entry constitutes an
admission of facts that give rise to inadmissibility and that a departure after such a
conviction is more akin to a formal removal than to the informal interactions at the border
(continued . . .)

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Interim Decision #3850

As an applicant for cancellation of removal, the respondent bears the
burden of proving all the requisite facts pertinent to his eligibility. Section
240(c)(4) of the Act, 8 U.S.C. § 1229a(c)(4) (2012); 8 C.F.R. § 1240.8(d)
(2015). However, no testimony on his application was taken. The record is
therefore unclear whether the respondent’s 2002 encounter occurred at
a port of entry and whether he was fingerprinted.2 It also does not indicate
whether he was advised of the right to appear before an Immigration Judge
during the voluntary return process at or near the border.3 Therefore, on de
novo review, we disagree with the Immigration Judge’s conclusion that the
evidence established that the respondent’s 2002 voluntary return constituted
a break in his continuous physical presence that prevented him from
accruing the 10-year period required by section 240A(b)(1)(A) of the Act.
We will accordingly remand the record for further proceedings on the
respondent’s application for cancellation of removal.4
_____________________________

that we have found insufficient to terminate continuous physical presence. See also
Zarate v. Holder, 671 F.3d 1132, 1137−38 (9th Cir. 2012).
Moreover, removal pursuant to an expedited removal order has been found to break
physical presence for purposes of cancellation of removal because, among other reasons,
both expedited and formal removals carry a statutory bar to readmission for a specified
period, which reflects congressional intent “to sever an alien’s ties to this country.”
Juarez-Ramos v. Gonzales, 485 F.3d 509, 512 (9th Cir. 2007); see also Nunez-Moron
v. Holder, 702 F.3d 353 (7th Cir. 2012); Vasquez v. Holder, 635 F.3d 563 (1st Cir. 2011).
2
Although the alien in Castrejon-Colino was not apprehended at the border, in our
view, this distinction would make no difference under the circumstances of this case.
Accordingly, the analysis in that case applies, regardless of whether an alien’s departure
was pursuant to an encounter at or near the border, and whether it was referred to as
a “departure,” “return,” “turnaround,” or “turn back.”
3
Depending on the date and location of the relevant encounter with immigration
officials, an alien may or may not have a right to a hearing before an Immigration Judge
in formal exclusion, deportation, or removal proceedings. Castrejon-Colino observes
that although aliens who are subject to being placed in expedited removal proceedings do
not generally have a right to a hearing before an Immigration Judge, the respondent in
that case was not subject to expedited removal at the time of his departure because it
occurred before the 2004 expansion of the coverage of expedited removal beyond aliens
arriving at ports of entry. See Matter of Castrejon-Colino, 26 I&N Dec. at 669 n.2. The
same appears to be true here because the respondent’s encounter occurred in 2002. It has
not been argued that his encounter involved any other context in which an alien’s
procedural rights are limited, such as being subject to reinstatement of a prior removal
order under section 241(a)(5) of the Act, 8 U.S.C. § 1231(a)(5) (2012).
4
Although the respondent ultimately bears the burden of proving his continuous
physical presence, as we noted in Matter of Castrejon-Colino, 26 I&N Dec. at 672 n.5,
the DHS is in a better position to fill gaps in the evidence and resolve any disputes by
presenting documentation in its own records to show the formality of the process.

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Interim Decision #3850

On remand, the Immigration Judge should take testimony regarding the
circumstances surrounding the respondent’s 2002 departure. See Matter of
Castrejon-Colino, 26 I&N Dec. at 672. If the Immigration Judge finds that
no break in presence occurred to interrupt the respondent’s continuous
physical presence, she should consider whether the respondent is otherwise
eligible for and deserving of cancellation of removal. The parties should be
given an opportunity to present additional evidence and argument in that
regard.
Finally, we note the DHS’s argument that Congress clearly did not
envision that any type of departure could be excepted from the continuous
physical presence requirement of section 240A(b)(1)(A) of the Act,
notwithstanding the provisions of section 240A(d)(2), which specifies that
an alien’s continuous physical presence terminates “if the alien has
departed from the United States for any period in excess of 90 days or for
any periods in the aggregate exceeding 180 days.” We are unpersuaded by
this argument, which is not supported by the Act, the regulations, or any
published circuit court case law of which we are aware. See, e.g., Garcia
v. Holder, 732 F.3d 308, 312 (4th Cir. 2013) (finding that Congress did not
intend to eliminate the Board’s discretionary authority to define which
departures terminate an alien’s presence and citing Matter of Avilez).
In view of our disposition of this case, we need not address the parties’
remaining appellate arguments at this time. Accordingly, the respondent’s
appeal will be sustained and the record will be remanded.

IV. CONCLUSION
We clarify Matter of Avilez and hold that where an alien had the right to
appear before an Immigration Judge, evidence that photographs and
fingerprints were taken in conjunction with a voluntary departure or return
is insufficient to break the alien’s continuous physical presence in the
absence of evidence that he or she was informed of and waived the right to
a hearing, regardless of whether the encounter occurred at or near the
border.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

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Interim Decision #4041

Matter of Kwok S. WONG, Respondent
Decided March 30, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A finding of guilt in a proceeding that affords defendants all of the constitutional rights
of criminal procedure that are applicable without limitation and that are incorporated
against the States under the Fourteenth Amendment is a “conviction” for immigration
purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(48)(A) (2018). Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004), clarified.
FOR THE RESPONDENT: Margaret W. Wong, Esquire, Cleveland, Ohio
FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael S. Lonoff, Assistant
Chief Counsel
BEFORE: Board Panel: HUNSUCKER and PETTY, Appellate Immigration Judges;
BROWN, Temporary Appellate Immigration Judge.
PETTY, Appellate Immigration Judge:

The United States Court of Appeals for the Second Circuit remanded this
case to us to explain the circumstances under which a proceeding not
denominated as “criminal” under the laws of the jurisdiction where it
occurred can nonetheless result in a “conviction” within the meaning of
section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(48)(A) (2018). As we previously held in Matter of Eslamizar, 23
I&N Dec. 684 (BIA 2004), and Matter of Cuellar, 25 I&N Dec. 850 (BIA
2012), the distinction between criminal and noncriminal proceedings turns
on the rights provided to the defendant. If a proceeding does not afford
defendants all of the constitutionally required rights of criminal procedure, it
cannot produce a conviction for immigration purposes. If the proceeding
does afford defendants those rights, then a judgment of guilt in that
proceeding constitutes a conviction under the Act.

I. BACKGROUND
The respondent is a native of Hong Kong and a citizen of the People’s
Republic of China. He was admitted to the United States on or about
April 19, 1979, as a lawful permanent resident. In 2005, the respondent
pleaded guilty to the disorderly persons offense of theft by deception, in
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Interim Decision #4041

violation of section 2C:20-4(a) of the New Jersey Statutes. In 2006, he was
convicted of forgery in the second degree, in violation of section 170.10 of
the New York Penal Law. 1 Based on these convictions, the Department of
Homeland Security charged the respondent with removability under section
237(a)(2)(A)(ii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(ii) (2006), as
a noncitizen who has been convicted of two or more crimes involving moral
turpitude not arising out of a single scheme of criminal misconduct.
In February 2012, the Immigration Judge found the respondent
removable as charged. The respondent appealed, and we affirmed the
Immigration Judge’s determination. The respondent filed a petition for
review with the Second Circuit, which remanded the case for us to further
consider the respondent’s removability. We subsequently remanded the
record to the Immigration Judge for further proceedings.
In April 2015, the Immigration Judge again found the respondent
removable as charged under section 237(a)(2)(A)(ii) of the Act because his
two convictions were categorically crimes involving moral turpitude. The
respondent filed a second appeal, which we dismissed in March 2018, again
holding that both his 2005 and 2006 convictions categorically involved moral
turpitude, and that the respondent’s 2005 disorderly persons offense was a
“conviction” under section 101(a)(48)(A) of the Act. The respondent again
petitioned for review.
The Second Circuit granted the petition for review and remanded
proceedings a second time, in part, because the court was uncertain whether
and why a New Jersey disorderly persons offense satisfied the definition of
“conviction” under section 101(a)(48)(A) of the Act. Kwok Sum Wong
v. Barr, 818 F. App’x 44, 47–48 (2d Cir. 2020). The Second Circuit
requested that we explain “the factors necessary to [our] determination of
what constitutes a ‘conviction’” for immigration purposes and “how an
offense that is not a crime under the laws of the jurisdiction where it was
committed can become a ‘crime’ for purposes of the [Act].” Id.; see also INS
v. Orlando Ventura, 537 U.S. 12, 16 (2002) (“Generally speaking, a court of
appeals should remand a case to an agency for decision of a matter that
statutes place primarily in agency hands.”).
The respondent argues that he is not removable as charged because
a disorderly persons offense does not constitute a “conviction” under section
101(a)(48)(A) of the Act. 2 He notes that a disorderly persons offense in New
1

The respondent also has a 1988 conviction for conspiracy to import heroin. See 21
U.S.C. § 963 (1988). In 1989, an Immigration Judge granted the respondent a waiver of
inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1988), for this
offense.
2
Although the respondent originally sought relief from removal in the form of adjustment
of status, he concedes that he is not presently eligible for such relief. Because there is no
relief currently available to the respondent, we consider only his removability.

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Interim Decision #4041

Jersey does not carry a right to an indictment by a grand jury or the right to
a jury trial, and that this class of offenses does not give rise to any legal
disability or legal disadvantage, as a conviction for a “crime” under New
Jersey law does. He also emphasizes that “[d]isorderly persons offenses . . .
are petty offenses and are not crimes within the meaning of the [New Jersey]
Constitution.” N.J. Stat. Ann. § 2C:1-4(b) (West 2005).

II. DISCUSSION
We again conclude that the respondent’s disorderly persons offense under
section 2C:20-4(a) of the New Jersey Statutes constitutes a “conviction”
within the meaning of section 101(a)(48)(A) of the Act. See 8 C.F.R.
§ 1003.1(d)(3)(ii) (2021). The term “conviction” is defined, in pertinent part,
as a “formal judgment of guilt . . . entered by a court.” Section 101(a)(48)(A)
of the Act. For purposes of this definition, the phrase “judgment of guilt”
refers to “a judgment in a criminal proceeding, that is, a trial or other
proceeding whose purpose is to determine whether the accused committed a
crime and which provides the constitutional safeguards normally attendant
upon a criminal adjudication.” Matter of Eslamizar, 23 I&N Dec. at 687; see
also Puello v. Bureau of Citizenship & Immigr. Servs., 511 F.3d 324, 329–30
(2d Cir. 2007) (distinguishing a formal judgment of guilt from a deferred
adjudication). The respondent does not dispute that he was found guilty, nor
does he dispute that the New Jersey Superior Court is a “court” within the
meaning of section 101(a)(48)(A). The sole question before us is how we
differentiate “criminal adjudication[s]” under Matter of Eslamizar, 23 I&N
Dec. at 687, from lesser, noncriminal proceedings. See Kwok Sum Wong,
818 F. App’x at 47; see also Castillo v. Att’y Gen. U.S., 729 F.3d 296, 311
(3d Cir. 2013) (remanding for the Board to reconsider whether a noncitizen
has been convicted of a crime based on a disorderly persons shoplifting
offense). As we explained in Matter of Eslamizar, we look to the
constitutional safeguards.
A. Board Precedent
In Matter of Eslamizar, we held that a “violation” under Oregon law was
not a conviction for immigration purposes. 23 I&N Dec. at 687–88. While
we made several observations concerning the legal consequences of
a violation under State law, our holding in that case rested on the principle
that proof beyond a reasonable doubt is a constitutional requirement for a
criminal conviction. See id.; see also Apprendi v. New Jersey, 530 U.S. 466,
477–80 (2000); In re Winship, 397 U.S. 358, 361–64 (1970). Because the
respondent in that case was found guilty “under the lesser standard of
a preponderance of the evidence,” we concluded that his Oregon violation
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could not be a “conviction” under section 101(a)(48)(A). Matter of
Eslamizar, 23 I&N Dec. at 688. We did not further elaborate on any
implications of our observations regarding the Oregon statutory scheme, as
it was unnecessary to our analysis; the application of the preponderance
standard was dispositive.
We next addressed what constitutes a “conviction” in Matter of
Rivera-Valencia, 24 I&N Dec. 484 (BIA 2008). There, we considered
whether the conviction of a soldier entered by a general court-martial
constituted a “conviction” for purposes of section 101(a)(48)(A). But rather
than focusing on what types of proceedings can result in convictions, that
case centered on whether a general court-martial qualified as a court. “There
[was] no dispute that a general court-martial is a ‘criminal’ proceeding under
the governing laws of the United States Armed Forces, and the respondent’s
general court-martial [in that case] unquestionably resulted in the entry of
a formal judgment of his ‘guilt’ beyond a reasonable doubt.” Id. at 487
(citation omitted).
Finally, in Matter of Cuellar, 25 I&N Dec. at 855, we held that a Kansas
municipal court conviction was a “conviction” within the meaning of the Act.
As here, the respondent in that case did not contest that a formal judgment of
guilt had been entered against him or that it had been entered by a court.
Additionally, we noted that Kansas municipal convictions must be proven
beyond a reasonable doubt. The respondent, however, claimed that he was
not afforded all of the constitutional rights to which criminal defendants are
entitled, and as a result, the conviction was not entered in a genuine criminal
proceeding.
We began our analysis with the principle that “a formal judgment of guilt
entered by a court qualifies as a conviction under section 101(a)(48)(A) so
long as it was entered in a ‘genuine criminal proceeding,’ that is,
a proceeding that was ‘criminal in nature under the governing laws of the
prosecuting jurisdiction.’” Id. at 852 (quoting Matter of Rivera-Valencia, 24
I&N Dec. at 486–87); accord Matter of Eslamizar, 23 I&N Dec. at 688.
Addressing the respondent’s constitutional arguments, we held that the
absence of a right to a jury trial in Kansas municipal court proceedings did
not violate the constitutional right to a jury trial because a defendant had
a right to a de novo jury trial on appeal. See Matter of Cuellar, 25 I&N Dec.
at 854; see also Ludwig v. Massachusetts, 427 U.S. 618, 625–28 (1976)
(affirming the constitutionality of a two-tier system where, after a conviction
is entered in a bench trial, a de novo jury trial is available as of right); cf.
Lewis v. United States, 518 U.S. 322, 325–26 (1996) (holding that there is no
constitutional right to a jury trial for petty offenses). We also rejected the
respondent’s argument that the Kansas municipal proceedings were not
criminal proceedings because they did not afford him an absolute right to be
represented by counsel. Matter of Cuellar, 25 I&N Dec. at 853–54.
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Specifically, we noted that there is no constitutional right to appointed
counsel, even for indigent defendants, if no imprisonment may be imposed.
Id. at 854; see also Alabama v. Shelton, 535 U.S. 654, 661 (2002); Scott
v. Illinois, 440 U.S. 367, 373–74 (1979); cf. Argersinger v. Hamlin, 407 U.S.
25, 37–40 (1972) (affirming the right to counsel if there is a potential for loss
of liberty). In light of the clear authority on these constitutional questions,
we were able to dismiss the respondent’s specific challenges to his
removability without articulating a comprehensive overview of what
constitutes a genuine criminal proceeding.
B. Judicial Precedent
Courts have taken divergent approaches to Matter of Eslamizar and its
progeny. As noted above, the Second Circuit has requested we clarify that
decision, and the Third Circuit has done likewise. The Eighth and Tenth
Circuits, in contrast, have focused on the constitutional aspects of criminal
procedure and in particular whether proof beyond a reasonable doubt is
required.
Just as in this case, the Third Circuit’s decision in Castillo considered
whether a New Jersey disorderly persons offense constitutes a conviction for
a crime under section 237(a)(2)(A)(ii) of the Act. 729 F.3d at 298, 302. The
Third Circuit remanded, in part, for us to clarify “what considerations or
factors may be relevant in deciding whether a finding of guilt constitutes
a conviction under Eslamizar and [section 101(a)(48)(A)].” Id. at 305. In
particular, the Third Circuit instructed the Board to clarify whether proof
beyond a reasonable doubt was the dispositive factor and to explain what role
the other procedural rights play in the analysis. Id. at 307–11.
This case has followed a similar path. The Second Circuit noted that after
reviewing our prior decisions, it was left with “uncertainty as to whether and
why disorderly persons theft satisfies” section 101(a)(48)(A). Kwok Sum
Wong, 818 F. App’x at 46. The Second Circuit further noted that although
Matter of Eslamizar and its progeny identify various factors in determining
whether an offense is a conviction for a crime, these cases do not explain
whether “any one of these factors was dispositive or to be given lesser
weight.” Id. Accordingly, the Court remanded to afford us “the opportunity
to clarify these matters.” Id. at 48.
The Eighth and Tenth Circuits, however, have read Matter of Eslamizar
more narrowly, as merely highlighting that proof beyond a reasonable doubt
is necessary for a proceeding to be of a criminal nature. See Rubio
v. Sessions, 891 F.3d 344, 350 (8th Cir. 2018); Batrez Gradiz v. Gonzales,
490 F.3d 1206, 1208 (10th Cir. 2007). The Eighth Circuit expressly declined
to follow Castillo, reasoning that “[i]n determining whether a state law
adjudication resulted in a judgment that the alien was guilty of a crime, the
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most fundamental aspect of a ‘criminal proceeding’ in this country is whether
‘guilt’ was proven beyond a reasonable doubt.” Rubio, 891 F.3d at 350.
Similarly, the Tenth Circuit has explained that Matter of Eslamizar “does
nothing more than reaffirm our traditional standard that findings of guilt must
be beyond a reasonable doubt.” Batrez Gradiz, 490 F.3d at 1208. In light of
the courts’ differing interpretations, and in response to the Second and Third
Circuit’s requests, we now clarify the conditions that make a State
proceeding criminal in nature for purposes of section 101(a)(48)(A) of the
Act.
C. Necessary and Sufficient Conditions
We have long held “that whether a conviction exists for purposes of
a federal statute is a question of federal law and should not depend on the
vagaries of state law.” Matter of Ozkok, 19 I&N Dec. 546, 551 n.6 (BIA
1988). As the Eighth Circuit noted, “it would be wrong to ‘render the law of
alien removal . . . dependent on varying state criminal classifications.’”
Rubio, 891 F.3d at 350 (quoting Lopez v. Gonzales, 549 U.S. 47, 58 (2006)).
As such, whether and in what contexts a State classifies offenses as “crimes”
may assist Immigration Judges in identifying substantive rights and
disabilities that flow from that categorization, but the categorization itself is
not dispositive. See Saleh v. Gonzales, 495 F.3d 17, 23 (2d Cir. 2007)
(observing that undue deference to State definitions of convictions
“frustrate[s] congressional intent”). To ensure that the definition of
a “conviction” turns on Federal law, we must examine the substance of the
proceeding, not the label the State assigns to it. Rubio, 891 F.3d at 351
(noting the importance “of substance, not form”). As we said before,
“Congress intended that the proceeding must, at a minimum, be criminal in
nature under the governing laws of the prosecuting jurisdiction, whether that
may be in this country or in a foreign one.” Matter of Eslamizar, 23 I&N
Dec. at 688.
In this country, a “genuine” or “true” criminal proceeding must provide
certain minimum constitutional protections, without which criminal penalties
cannot constitutionally be imposed. 3 Id. at 688–89 (discussing required
constitutional protections); cf. Matter of Cuellar, 25 I&N Dec. at 853–54
(discussing contingent constitutional protections).
These minimum
protections include: proof beyond a reasonable doubt; and the rights to
confront one’s accuser, a speedy and public trial, notice of the accusations,

3

We do not address the requirements for foreign convictions to qualify as convictions
under section 101(a)(48).

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compulsory process for obtaining witnesses in one’s favor, and against being
put in jeopardy twice for the same offense. 4
In short, we determine whether a proceeding is “criminal” by reference
to those rights of criminal procedure guaranteed by the Constitution—as
incorporated against the States by virtue of the Fourteenth Amendment—and
which are applicable without limitation in all criminal prosecutions. See
generally Argersinger, 407 U.S. at 27–28 (noting the entirety of the Sixth
Amendment has been made applicable to the States through the Fourteenth
Amendment). Because the rights listed above represent the constitutional
floor of criminal procedure, and State law must conform to the Constitution,
see U.S. Const. art. VI, cl. 2; Arizona v. United States, 567 U.S. 387, 399
(2012), each is mandatory in every jurisdiction within the United States. See
Argersinger, 407 U.S. at 27–28. It follows that the absence of any of them
renders the proceeding noncriminal for Federal purposes, and a judgment of
guilt in such a proceeding would not be a conviction under section
101(a)(48)(A).
However, not all constitutional rights of criminal procedure are required
in every criminal proceeding. Some rights are contingent. See Matter of
Cuellar, 25 I&N Dec. at 853–54. For example, the right to a jury trial applies
only if the charged offense is deemed “serious,” and the right to counsel
applies only if a conviction can result in loss of liberty. See, e.g., Lewis, 518
U.S. at 325 (noting that the right to jury trial applies only to “serious”
offenses); Duncan v. Louisiana, 391 U.S. 145, 157–59 (1968) (same);
Shelton, 535 U.S. at 661 (holding that there is no right to counsel if there is
no possibility of loss of liberty); Scott, 440 U.S. at 373–74 (same). Because
contingent rights are not required in every criminal proceeding, their absence
cannot be dispositive with respect to whether a particular proceeding is
criminal in nature. Similarly, the absence of a right to indictment by grand
jury is immaterial, because that right has not been made applicable to the
States through the Fourteenth Amendment. See Albright v. Oliver, 510 U.S.
266, 272 (1994); Hurtado v. California, 110 U.S. 516, 538 (1884).
Focusing on whether the State adjudication is a substantively
constitutional criminal proceeding avoids improper reliance on State
definitions and categories. See Matter of Ozkok, 19 I&N Dec. at 551 n.6. It
also avoids the potential for tautological reasoning that a particular
proceeding is criminal in nature because it is labeled as such under the laws
4

See Apprendi, 530 U.S. at 490 (discussing proof beyond a reasonable doubt); In re
Winship, 397 U.S. at 364 (same); Benton v. Maryland, 395 U.S. 784, 794 (1969)
(addressing double jeopardy); Washington v. Texas, 388 U.S. 14, 18–19 (1967)
(compulsory process); Klopfer v. North Carolina, 386 U.S. 213, 226 (1967) (speedy trial);
Pointer v. Texas, 380 U.S. 400, 403 (1965) (confrontation); In re Oliver, 333 U.S. 257,
265–68, 273–75 (1948) (public trial and notice of accusations).

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of the prosecuting jurisdiction, without establishing what conditions make
a procedure “criminal” in the first place. See Castillo, 729 F.3d at 302
(“[O]ne must still ask ‘conviction’ of what.”); see also Kwok Sum Wong, 818
F. App’x at 47–48. Finally, substantive constitutionality will not vary from
State to State.
Because the constitutional considerations outlined above are sufficient to
establish what is and is not a criminal judgment, we need not consider other
aspects of State law. For example, to determine whether a judgment is
criminal in nature, we need not consider whether the judgment can be used
for impeachment purposes under the State’s rules of evidence, whether it
constitutes a prior conviction for sentencing purposes under State law, or
whether it results in disqualification from State public office or other civil
disabilities.
We conclude that the minimum constitutional safeguards for all criminal
proceedings define whether a proceeding is criminal in nature, and
a jurisdiction’s application of these safeguards will render such a judgment
a “conviction” under section 101(a)(48)(A) of the Act. 5 Conversely, the
absence of any constitutionally required right of criminal procedure renders
a proceeding noncriminal in nature and thus not a “conviction” for
immigration purposes. See, e.g., Matter of Eslamizar, 23 I&N Dec. at 688.
D. Application to the Respondent
The respondent maintains that his New Jersey disorderly conduct offense
was not a conviction within the meaning of the Act because defendants in
New Jersey disorderly conduct proceedings are not entitled to an indictment
by grand jury or to a jury trial; New Jersey disorderly conduct offenses do
not give rise to any legal disability or disadvantage; and disorderly conduct
offenses are not “crimes” as defined by State law. We reject the respondent’s
arguments. How the State defines or labels the offense may be useful but is
not dispositive. Instead, the analysis should focus on whether the judgment
exposes the accused to criminal penalties and whether the procedure used to
arrive at that judgment conforms to the minimum constitutional requirements
5

We recognize that States may provide greater protection than is constitutionally
required, California v. Ramos, 463 U.S. 992, 1013–14 (1983), to include the provision of
some rights traditionally associated with criminal procedure in noncriminal proceedings.
However, treating the presence of all incorporated, noncontingent constitutional rights in
a proceeding as conclusive that it is criminal in nature is a reasonable and administrable
interpretation of section 101(a)(48)(A). See Mayo Found. for Med. Educ. & Rsch.
v. United States, 562 U.S. 44, 59 (2011) (recognizing that an agency’s ability to administer
a rule is a permissible criterion in interpreting an ambiguous statute); Matter of
Arambula-Bravo, 28 I&N Dec. 388, 395 (BIA 2021) (citing City of Portland v. United
States, 969 F.3d 1020, 1038 (9th Cir. 2020) (“Administrability is important”)).

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for criminal prosecutions. For the same reasons, whether any legal disability
or disadvantage results from a disorderly persons offense is entirely a matter
reserved to the States, and the imposition of civil disabilities may vary among
States even for similar offenses. These considerations therefore do not assist
us in determining whether the State proceeding results in a “conviction”
within the meaning of section 101(a)(48)(A).
The respondent’s constitutional arguments must be rejected as well. As
noted above, the right to indictment by grand jury has not been made
applicable to the States, so its absence cannot conclusively render a State
proceeding noncriminal. See Albright, 510 U.S. at 272; Hurtado, 110 U.S.
at 538. Similarly, the right to a jury trial is contingent on the seriousness of
the offense. Lewis, 518 U.S. at 325; Duncan, 391 U.S. at 157–59. The
penalty for a New Jersey disorderly persons offense is limited to 6 months’
imprisonment, see N.J. Stat. Ann. § 2C:43-8 (2005), which, for constitutional
purposes, is not serious. See Lewis, 518 U.S. at 326 (“An offense carrying
a maximum prison term of six months or less is presumed petty, unless the
legislature has authorized additional statutory penalties so severe as to
indicate the legislature considered the offense serious.”); see also State
v. Owens, 254 A.2d 97, 98–99 (N.J. 1969) (recognizing that trial by jury is
not accorded to individuals charged with disorderly persons offenses because
such offenses are considered petty offenses under the New Jersey
constitution). Accordingly, the lack of a right to trial by jury for such an
offense where there is no Federal constitutional right to trial by jury for
offenses carrying the same potential sentence does not resolve whether the
proceeding results in a criminal conviction for immigration purposes.
With respect to those constitutional rights that apply without limitation
and have been made applicable to the States, all of them apply to New Jersey
disorderly persons offenses. Proof beyond a reasonable doubt is required by
statute. See N.J. Stat. Ann. §§ 2C:1-13(a), 2C:1-14(k) (West 2005)
(requiring proof beyond a reasonable doubt for all “offenses” and defining
“offense” to include disorderly persons offenses). The remaining rights—
confrontation, speedy trial, public trial, notice of accusations, compulsory
process, and double jeopardy—are guaranteed by the State constitution. See
N.J. Const. art I, paras. 10–11. These rights are coextensive with the parallel
Federal rights. See State v. Garron, 827 A.2d 243, 256 (N.J. 2003) (equating
rights under article I, paragraph 10 of the State constitution with the parallel
rights under the Sixth Amendment of the United States Constitution); State
v. Kent, 918 A.2d 626, 647 (N.J. Super. Ct. App. Div. 2007) (Stern, J.,
concurring) (same); see also State v. Tropea, 394 A.2d 355, 357 n.2 (N.J.
1978) (equating double jeopardy under article I, paragraph 11 of the State
constitution with the double jeopardy right under the Fifth Amendment). All
of them are afforded to defendants accused of disorderly persons offenses.
See State v. Godshalk, 885 A.2d 969, 972–73 (N.J. Super. Ct. Law Div. 2005)
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(“The criminal procedural guarantees of the New Jersey Constitution also
extend to non-indictable, quasi-criminal prosecutions. . . . includ[ing] those
for disorderly persons offenses . . . .” (citation omitted)); State v. Ashford,
864 A.2d 1122, 1127 n.6 (N.J. Super. Ct. App. Div. 2004) (“While the Sixth
Amendment applies to ‘criminal prosecutions,’ we have applied certain
provisions or given similar protections to non-indictable prosecutions.”).
Because New Jersey provides all of the constitutionally-mandated rights of
criminal procedure in prosecutions for disorderly persons offenses,
convictions for such offenses are “convictions” as defined in section
101(a)(48)(A) of the Act.
E. Removability
Having determined that the respondent’s conviction under section
2C:20-4(a) is a “conviction” for a crime under the Act, we turn to whether
the respondent has been convicted of two more crimes involving moral
turpitude that render him removable under section 237(a)(2)(A)(ii) of the
Act. We again conclude that the respondent’s convictions for theft by
deception in violation of section 2C:20-4(a) under the New Jersey Statutes
and forgery in the second degree in violation of section 170.10 of the New
York Penal Law categorically involve moral turpitude.
The respondent argues that a conviction for theft by deception in violation
of section 2C:20-4(a) does not require proof of a permanent taking, and the
offense cannot involve moral turpitude without an intent to permanently
deprive the owner of possession. But the respondent was not merely
convicted of a theft offense, but of theft by deception, an element of which
is a knowing misrepresentation made with the specific intent to cheat or
defraud the victim. See Selective Ins. Co. v. McAllister, 742 A.2d 1007, 1011
(N.J. Super. Ct. App. Div. 2000). In determining whether a crime involves
moral turpitude, the Second Circuit has held that “[t]he distinction between
permanent and temporary takings is not relevant” where the offense involves
fraud. Mendez v. Mukasey, 547 F.3d 345, 351 (2d Cir. 2008). Because the
respondent’s conviction involves fraud, we reject his contention that it cannot
be for a crime involving moral turpitude because it does not require proof of
a permanent taking.
The respondent further asserts that a conviction for forgery in the second
degree in violation of section 170.10 of the New York Penal Law is not
categorically a crime involving moral turpitude because the statute does not
necessarily involve fraud; it may be violated with the intent to injure another
in addition to defrauding or deceiving another. We reject this argument as
well. Intent to injure is often indicative of moral turpitude. See Escobar
v. Lynch, 846 F.3d 1019, 1024 (9th Cir. 2017); Villatoro v. Holder, 760 F.3d
872, 878 (8th Cir. 2014); cf. Efstathiadis v. Holder, 752 F.3d 591, 597 (2d
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Cir. 2014) (per curiam) (noting that to qualify as a crime involving moral
turpitude, an offense must involve an “evil or malicious intent”).
Furthermore, a defendant convicted under section 170.10 must intend to
cause injury by falsely making, completing, or altering a written document,
which itself involves fraud or deceit. See Mendez, 547 F.3d at 347; see also
Rodriguez v. Gonzales, 451 F.3d 60, 64 (2d Cir. 2006) (per curiam) (holding
that an offense that “involves deceit and an intent to impair the efficiency
and lawful functioning of the government” necessarily involves moral
turpitude).
Accordingly, we agree with the Immigration Judge’s
determination that the respondent is removable as charged under section
237(a)(2)(A)(ii) the Act, as a noncitizen who has been convicted of two or
more crimes involving moral turpitude not arising out of a single scheme of
criminal misconduct. 6

III. CONCLUSION
A finding of guilt in a proceeding that affords defendants all of the
constitutional rights of criminal procedure that are applicable without
limitation and that have been made applicable to the States through the
Fourteenth Amendment is a “conviction” for immigration purposes under
section 101(a)(48)(A) of the Act. Because New Jersey law mandates that
such rights be afforded to defendants charged with disorderly persons
offenses, the respondent’s conviction for a disorderly persons offense
qualifies as a conviction for immigration purposes. This conviction, along
with the respondent’s New York conviction for forgery, are crimes involving
moral turpitude not arising out of a single scheme of criminal misconduct,
rendering him removable as charged. Accordingly, the respondent’s appeal
will again be dismissed.
ORDER: The respondent’s appeal is dismissed.

6

It is undisputed that the respondent’s crimes do not arise out of a single scheme of
misconduct.

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Interim Decision #1309

MATTER OF MONABTRA
In SECTION 241 Proceedings
A-11079022

Decided by District Director
Approved by Assistant Commissioner December 12,1963
(1) A naturalized citizen of the United States who by operation of law automatically reacquired Italian nationality in 1940 following 2 years' residence
in Italy did not upon that basis lose his U.S. citizenship under section 401(a)
of the Nationality Act of 1940 when he voted in a political election in Italy
in 1946, loss under that section being limited to naturalization obtained "upon
his own application," but expatriated by performing an act separately designated as eapatriatory in section 401(e) of that Act.
(2) A child of such naturalized citizen who acquired U.S. citizenship at birth
in Italy in 1930, under sec. 1908, B.S.; who acquired Italian nationality in
1940 upon the automatic reacquisition of such nationality by her father; and
whose father, until he voted in 1916, performed no act that might possibly
have been regarded as a manifestation of acceptance of Italian nationality was
not subject to compliance with the provisos to section 401(a), Nationality Act
of 1940, or section 349(a) (1), Immigration and Nationality Act, at the time
of her first entry into the United States in 1957 when 27 years of age.

The applicant was born in Italy on April 15, 1930. Her father was
then a citizen of the United States having been naturalized on November 19, 1928. The father resided in the United States after his naturalization until 1929, from 1932 to 1935, from 1935 to November 1938,
and from May 1958 to date. The applicant acquired United States
citizenship at birth under section 1993, U.S.R.S., by virtue of the fact
that her father was a United States citizen at the time of her birth
and had resided in the United States prior thereto. The applicant
entered the United States for the first time on July 27, 1957, in possession of a United States passport, at which time she was twenty-seven
years of age.
At the time of applicant's birth in Italy her father had ceased
to be an Italian citizen,i and thus the applicant did not acquire Italian
2 when applicant's father became a naturalized citizen of the United States
be lost his Italian Nationality pursuant to the provisions of Article VIII (1) of
the Italian Nationality Law of lime 13, 1912, which provided that "One loses
citizenship when he of his own free will acquires a foreign citizenship and
establishes or has established his residence abroad."

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Interim Decision #1309
nationality at birth. Italian law as to nationality at birth is based on
the principle of "jus sanguinis" [See Articles I and III of the Italian
Nationality Law of June 13, 1912, then in effect]. Upon completion
of two years' residence in Italy in 1940, the applicant's father automatically reacquired Italian nationality 2 [See Hackworth., Digest
of International Law (1942) p. 212]. Article XII of the Italian
Nationality Law conferred Italian citizenship upon applicant in 1940,
as she was then the minor child of a person reacquiring Italian citizenship pursuant to the provisions of Article IX.' Thus, the applicant
acquired dual nationality subsequent to her birth, in 1940, in accordance
with Italian law.
At the time applicant and her father acquired Italian nationality, section 2 of the Act of March 2, 1907, [34 Sta. 1228 ; 8 U.S.C. 17]
provided in pertinent part that any American citizen shall be deemed
to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws. The issue to be resolved in her
case, therefore, is whether their automatic acquisition of Italian
nationality imposed upon her the necessity of complying with the provisions of section 401(a) of the Nationality Act of 1940 [54 Stet. 1188;
8 U.S.C. 801] or section 349 (a) (1) of the Immigration and Nationality
Act.
Section 401(a), which became effective January 13, 1941, provided
as follows:
A person who is a national of the United States, whether by birth or
naturalization, shall lose his nationality by :
(a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such
person : Provided, however, That nationality shall not be lost as the result of
the naturalization of a parent unless and until the child shall have attained the
age of twenty-three years without acquiring permanent residence in the United
States: Provided further, That a: person who has acquired foreign nationality
through the naturalization of his parent or parents, and who at the time is a
citizen of the United States, shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act, be permitted
within two years from the effective date of this Act to return to the United
States and take up permanent residence therein, and it shall be thereafter
deemed that he has elected to be an American citizen. Failure on the part
of such person to so return and take up permanent residence in the United
States during such period shall be deemed to be a. determination on the part of
such person to discontinue his status as an American citizen, and such person
Article IX of the Italian Nationality Law s of June 13, 1912, provided "He
who has lost citizenship ... may reacquire it ... (3) at ter two years of residence

in the Kingdom if the loss of citizenship has been due to the acquisition of foreign
citizenship."
a Article XII of the Italian Nationality Law of June 13, 1912, provided that
"minor nonemancipated children of those who acquire citizenship become
citizens."

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Interim Decision #1309
shall be forever estopped by such failure from thereafter claiming such
American citizenship (54 Stat. 1168-1169; 8 U.S.O. 801) * * *.

This section was superseded on December 24, 1952, by section 349
(a) (1), quoted below, which insofar as it is relevant to the instant
case has been interpreted to make still timely the arrival in the United
States before 25 years of age of a child within the provisions of section 401(a) who on that date had not yet attained 23 years of age
(8L &N. Dec. 511) :
(a) From and after the effective date of this Act a person who is a national
of the United States whether by birth or naturalization, shall lose his nationality
by—

(1) obtaining naturalization in a foreign state upon his own application,

application lied in his behalf by a parent, guardian, or duly authorized
agent, or through the naturalization of a parent having legal custody of such
won an

person: Provided, That nationality shall not be lost by any person under this
section as the result of the naturalization of a parent or parents while such
person is under the age of twenty-one years, or as the result of a naturalization
obtained on behalf of a person under twenty-one years of age by a parent,
guardian, or duly authorized agent, unless such person shall fail to enter the
United States to establish a permanent residence prior to his twenty-fifth
birthday : And provided further, That a person who shall have lost nationality
prior to January 1, 1948, through the naturalization in a foreign state of a
parent or parents, may, within one year from the effective date of this Act,
apply for a visa and for admission to the United States as a non-quota immigrant
under the provisions of section 101(a) (27) (E) * * *

Absent any evidence of his intent to reacquire Italian nationality
by establishing residence in Italy, the resumption of Italian nationality
by the applicant's father under Article IX of the Italian law of June
13, 1912, may be deemed his "naturalization" within the meaning of
section 2 of the Aet of March 2, 1907, only if he has voluntarily and
unambiguously manifested acceptance of Italian nationality by a declaration. or overt action. Upon such manifestation during the effective
period of that section, the final constituent element of voluntary
"naturalization" comes into being, and the legal consequences are loss
of nationality under section. 2 (9 I. & N. Dec. 660; Int. Dec. No. 1259) .
There is no evidence of such manifestation on the part of the father
prior to the repeal of section 2 on January 13, 1941, and, therefore,
no basis upon which to conclude that when section 401(a) became
effective on that date he was a. person who had been expatriated by
naturalization in a, foreign country within the meaning of the legislation it superseded. Nor was the applicant herself old enough prior
to that date to have performed any action constituting an election of
Italian nationality on her part, assimilable to an act of acceptance on
the part of her father and capable independently of effecting her loss
of United States nationality (Cf. 1 I. & N. Dec. 4'76 and 496 and
3 I. & N. Dec. 761) .
396

Interim Decision #1309
The second proviso to section 401(a) can scarcely have been aimed
at expatriating a child who during the effective period of the 1907 Act
automatically derived a foreign nationality as a result of the conferring

of such nationality upon his parent by operation of law when the
parent's acquisition of that nationality was not itself a "naturalization"
within the meaning of the 1907 Act. It has been a long-standing rule,
therefore, and one that is here reaffirmed that under such circumstances
the child is not under the necessity of complying with that proviso
(3 I. & N. 761,765, supra).
With regard to the first provisos to section 401 (a) and section
349 (a). (1), in the instant case the applicant's father voted in a political
election in Italy in 1946, an action that if performed prior to January
13, 1011, might- be regarded as a manifestation of his acceptance of

Italian nationality sufficient to constitute under the precedents cited
the last element in his naturalization in a foreign country within the
meaning of section 2 of the Act of March 2, 1907. That section had
then been repealed and superseded by the Nationality Act of 1940.
The Nationality Act specifically provided in section 408 that the
loss of nationality thereunder shall result solely from the performance
by a national of the actions or fulfillment of the conditions set out in
that Act (54 Stet. 1171; 8 U.S.C. 808). And the language of section
401(a) rules out loss of nationality thereunder by the applicant's
parent on the basis of acquisition of a foreign nationality by operation
of law by specifically limiting such loss to a naturalization obtained
"upon his own application." There is no evidence indicating that
applicant's parent at any time on or after January 13,1941, obtained
Italian nationality upon his own application. Giving the evident
intended effect to section 408, it can only be found that, when he voted
in 1946, he performed an action separately designated as expatriatory
in section 401(e) of the Nationality Act and not that he was naturalized
within the meaning of section 401 (a). In view of the foregoing, there
has been no "naturalization" within the meaning of that section and
the applicant is not a person required to comply with the first proviso
to section 401(a) or section 349(a) (1). No discussion is necessary,
therefore, with regard to the timeliness in relation to those provisos
of her entry into the United States when she was 27 years of age, and
p is
favorable action on her application for a certificate of citizenshi
warranted.
ORDER : It is ordered that the application be granted and that a
certificate of citizenship be issued.

397


interim Liecision fn000

MATTER OF AU YEUNG
In Visa Petition Proceedings
A-13856216

Decided by Board June 28, 1978
(1) The Board of Immigration Appeals does not have jurisdiction to consider whether a
beneficiary of a visa petition, who was once accorded lawful permanent resident status,
has abandoned that status, when the Board has before it an appeal from the denial of a
visa petition.
(2) An alien, who is admitted to the United States as an "eligible orphan" pursuant to
section 101(b)(1)(F) of the Act, and is never adopted by the petitioning United States
citizen "parent," and who leaves the United States, is not eligible for preference status
as the "son" of the petitioning United States citizen "parent" since that relationship
never came into existence.
ON BEHALF OF PETITIONER: Austin T. Fragomen, Jr., Esquire
Fried, Fragomen, Del Rey, & O'Rourke, P.C.
515 Madison Avenue
New York, New York 10022
BY: Iffilhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The United States citizen petitioner applied for preference status for
the beneficiary as his unmarried son under section 203(a)(1) of the
Immigration and Nationality Act, 8 U.S.C. 1153 (a)(1). In a decision
dated July 27, 1977, the District Director denied that petition. The

petitioner has appealed from that decision. The appeal will be dismissed.
The beneficiary is a 28-year-old native and citizen of China. In April of
1964, he entered the United States as a lawful permanent resident
having been issued a visa as the immediate relative child of a United
States citizen, as defined in section 101(b)(1)(F) of the Act, 8 U.S.C.
1101(b)(1)(F). In the latter part of 1964 the beneficiary returned to
Hong Kong, where he had been residing prior to his entry to the United

States. He remained there until 1970 when he travelled to Canada to
attend school. In 1971 the beneficiary returned to the United States on
a nonimmigrant student visa, which was valid for multiple entries into
the United States.
On August 11, 1976, the petitioner submitted an application to confer
preference status on the beneficiary as his unmarried son under section
203(a)(1) of the Act. The District Director denied the petition on July 27,
540

interim recision

Yi`

1977, finding that because the petitioner never adopted the beneficiary,
and since the beneficiary had abandoned his status as a lawful permanent resident when he returned to Hong Kong for an extended time, the
relationship between the petitioner and the beneficiary did not come
within the purview of section 203(a)(1) of the Act.
On appeal, the petitioner argues both that the beneficiary never
abandonded his status, and therefore is a lawful permanent resident
returning from a temporary visit abroad, as defined in section
101(a)(1)(27); and that since the beneficiary once qualified as his "child"
under the Act, when he reached the age of 21 years, he became entitled

to preference status as his "unmarried son" under section 203(a)(1) of
the Act.
The petitioner contends on appeal, that this Board has jurisdiction to
consider the question of whether the beneficiary has retained his lawful
permanent resident status and therefore is entitled to enter the United
States as a special immigrant pursuant to section 101(a)(27)(A) of the
Act. Although it appears from the record before us that the beneficiary
may have abandoned his status as a lawful permanent resident, we do
not believe that we have jurisdiction to consider this question in these
proceedings.
This Board recently held in Matter of Anselmo, Interim Decision 2568
(BIA 1977), that even though the beneficiary in that case was a lawful
permanent resident of the United States, we could consider a visa
petition filed on her behalf, because of her apparent deportable status.
We stated that since an applicant for preference status is not eligible for
adjustment of status unless he or she is the beneficiary of a valid
approved unexpired visa petition, we have jurisdiction to consider such
a petition. See Matter of Calilao, Interim Decision 2555 (BIA 1977).
The petitioner based his argument that the beneficiary is entitled to
preference status as his "son" on the fact that since the beneficiary was
once classified as the petitioner's "child" within the meaning of section
101(b)(1)(F), the relationship continues to exist, see 8 C.F.R. 204.4(a),
and therefore when the beneficiary turned 21 years old, his status was
automatically converted to that of an unmarried son, and he became
entitled to preference status under section 203(a)(1). 8 C.F.E. 204.5(b).
At the time the beneficiary entered the United States in 1964 he had
been accorded preference status as an "eligible orphan," who was entering the United States to be adopted by the petitioner and his -wife.
Section 101(b)(1)(F) of the Act provides that the definition of child for
immigration purposes shall include an "eligible orphan," which is defined as:
(F) a child, under the age of fourteen at the time a petition is filed in his behalf to accord
a classification as an immediate relative under section 201(b), who is an orphan because
of the death of disappearance of, abandonment or desertion by, or separation or loss
541

Lucerim vecision

Z.ZOOD

from, both parents, or for whom the sole or surviving parent is incapable of providing
the proper care which will be provided the child if admitted to the United States and
who has in writing irrevocably released the child for emigration and adoption; who has
been adopted abroad by a United States citizen and his spouse who personally saw and
observed the child prior to or during the adoption proceedings; or who is coming to the
United States for adoption by a United States citizen and spouse who have complied
with the preadoption requirements, if any, of the child's proposed residence: Provided,
That no natural parent or prior adoptive parent of any such child shall thereafter, by
virtue of such parentage, be accorded any right, privilege, or status under this Act.

In the present case, however, no adoption occurred, and the beneficiary
left the United states in the same year in which he had entered and did

not return until the middle of 1971, when he reentered the United
States with a nonimmigrant student visa.
It is clear from that Act, that it was intended that any "eligible
orphan" who entered the United States prior to having been adopted,
would be adopted as soon as possible, since the Act requires that all
preadoption requirements of the state where the United States citizen
petitioner resides, must have been met before the child will be allowed
to enter this country. In addition, the language of the further proviso,
which denies benefits to natural parents, clearly indicates the Congressional intent that there shall be an adoption, in order for immigration
benefits as a "child" to accrue.
We have held in the past that in order for an alien beneficiary to
qualify as the "son" or "daughter" of a petitioner, the beneficiary must
once have qualified as the child of the petitioner under section 101(b)(1)
of the Act. Matter of Coker, 14 I. & N. Dec. 521 (BIA 1974); Matter of
Pagnerre, 13 I. & N. Dec. 688 (BIA 1971). While it is true that the
beneficiary in this case was admitted as the petitioner's "child," we do
not believe that the beneficiary can now be said to qualify as his "son"
within the meaning of the Act. The purpose for providing special status
to close relatives of citizens and lawful permanent residents of the
United States is to preserve family units. Even though the beneficiary
was admitted as the petitioner's "child" as an "eligible orphan," the
relationship was never consummated by the adoption of the beneficiary,
and therefore the familial relationship was not established.
Consequently, we agree with the District Director that the petition
should be denied and we will accordingly dismiss the appeal.
ORDER: The appeal is dismissed.
-

542


Interim Decision #174'T

MASTER

or Kuarix

In Visa Petition Proceedings
A-14231007
Decided by Board May 25, 1967
A divorce decree granted in absentia in Yugoslavia in 1903 to two nationals of
that country, one of which was then living in Canada and the other (beneficiary) in California, is recognized as valid in the State of California (section
1915, Code of Civil Procedure) where the marriage occurred in Yugoslavia,
both parties were duly represented in the divorce proceedings, and beneficiary
testified there was no attempt to evade California law.
ON BEHALF or PETITION/ES: Milton T. Simmons, Esquire
Phelan, Simmons & Ungar
1210 Mills Tower
San Francisco, California 94104
(Brief Sled)

The case comes forward pursuant to certification by the District
Director, San Francisco District, dated January 12, 1967 holding that
inasmuch as the burden of proof of the validity of the marriage is upon
the petitioner in immigration proceedings and the petitioner has failed
to show that the laws of the State of California, where the subsequent
marriage was celebrated, deco recognize the validity of the divorm

granted in absentia by a court in Yugoslavia, the previous denial of
the visa petition by the Acting District Director, San Francisco District on June 27, 1966 on the basis that it has not been established that
the beneficiary was legally free to enter into the marriage with the petitioner at Los Angeles, California on March 11, 1966 was proper.
The petitioner, a naturalized citizen of the United States, seeks immediate relative status on behalf of his wife, a native and citizen of
Yugoslavia. The parties were married at Los Angeles, California on
March 11, 1966. A prior marriage of the petitioner was terminated by
a divorce in the Superior Court of the State of California for the
County of Los Angeles on March 9, 1966.
The file indicates that the beneficiary last entered the United States
at San Francisco, California on October 18, 1962 as a visitor for
284

Interim Decision #1747
pleasure. She previously had been married to Mato Gugich, a native
and citizen of Yugoslavia, at Vela Luke, Yugoslavia on June 5, 1954.
They lived together as husband and wife until the end of 1955 when
her husband escaped from Yilgoslavia to Italy and subsequently
emigrated to Canada where he apparently remarried without benefit
of divorce. The beneficiary, after her arrival in the United States,
attempted to contact her husband in Vancouver, B.C., Canada. Upon
learning that he was married to another, she sent a power of attorney
to a lawyer in Yugoslavia to institute divorce proceedings. The file
contains a decree of the District Court of Dubrovnik, Yugoslavia in
which the beneficiary was represented by an attorney and her first
husband, Mato Gugich, was represented by his father, his whereabouts
being unknown. The Yngnslav court granted a divorce on. September
8, 1963 and the beneficiary was granted custody of their two children.
When the case was last before us on September 15, 1966 we pointed
out that the beneficiary and her first husband were natives and citizens of Yugoslavia and that the marriage had occurred in that country. She was a resident of the United States but was in a nonimmigrant
status and was still a national of Yugoslavia. It was suggested that
the basis for jurisdiction. of the Yugoslavian court should be explored.

It was suggested that the provisions of the California Code of Civil
Procedure, section 1915, appeared to be applicable. Section 1915
provides:
A final judgment of any other tribunal of a foreign country having jurisdiction, according to the laws of such a country, to pronounce the judgment, shall
have the same effect as in the country where rendered, and also have the same
effect as final judgments rendered in this state.

The case was remanded for further proceedings in the light of section 1915, California Code of Civil Procedure, and to have the beneficiary questioned whether it was, er intention to evade the California
law when she obtained the Yugoslav divorce.
Upon remand, the Library of Congress, European Law Division,
was consulted to establish the basis for the jurisdiction of the Yugoslav court, and a report entitled "Divorce of Yugoslav Citizens Residing Abroad" is annexed and made a part hereof. In pertinent part
the report stated that if the spouses have no common domicile in Yugoslavia and one of them is a Yugoslav citizen at the time of the filing
of the divorce and the defendant has no domicile or residence, but the
plaintiff has, the court, within the territory of which the plaintiff
has domicile or residence, shall have jurisdiction. If the plaintiff does
not have his residence or domicile in Yugoslavia either, the Supreme
Court of Yugoslavia shall determine which district court shall have
jurisdiction to try the case. It is further stated that the personal ap285

Interim Decision #1747
pearance of the parties in a divorce case is not a necessary requirement. A spouse may file a divorce suit through a duly appointed representative but the cause for divorce must be stated in the power of
attorney.
The District Director concedes that on the basis of this report from
the Library of Congress that neither domicile nor personal appearance is a jurisdictional requirement under the laws of Yugoslavia. In
addition, the beneficiary stated under oath to a Service officer on
December 5, 1966 that she did not obtain her divorce in Yugoslavia
for the purpose of evading any of the laws of the State of California.
The District Director stated that the courts of California have generally refused to recognize "in absentia" Mexican mail order divorces
whore neither party to the divorce proceedings was physically present

within the jurisdiction of the Mexican court although they have recognized divorces granted in Mexico where the plaintiff was physically
present within the jurisdiction of such court, citing Matter of B—,
5 I. & N. Dec. 659, and Matter of I" , 4 I. & N. Dee. 610. The District Director equated the present divorce decree with a Mexican "mail
order" divorce in which the plaintiff institutes the divorce by corre—

spondence, neither party being physically present in the country where

the divorce was rendered, and concludes that such divorces have been
held invalid in the State of California, notwithstanding section 1915,
Code of Civil Procedure.
Counsel takes issue with the finding that the divorce in the present
case is the equivalent of a "Mexican mail order" divorce and decree
in which the California courts have found that the Mexican court
divorce was procured by fraud perpetrated on the courts of Mexico.
Counsel cites the case of Scott v. Scott, 51 Ca1.2d 249, 254-256; 331
P.2d 641 (1958), in which the foreign divorce decree was recognized.
In a concurring opinion, Justice Traynor stated:
Critics, however, have pointed out that a country other than the domicile may
have a legitimate interest in the marital status of the parties, even though it
does not accept the common law jurisdictional concept of domicile. See Howe,
The Recognition of Foreign Divorce Decrees in New York State, 40 Comm. L.
Review 373, 375-376; 40 Cal. L. Review 93, 99-100. New York courts recognize
' civil Jaw decrees obtained without domicile (Gould v. Gould, 235 N.Y. 14,133
NM 490) and, under certain circumstances, English courts do not make domicile
a condition for the recognition of a foreign divorce decree. • • •
• • • There should be no implication from the court's opinion finding domicile
that would preclude contacts with the foreign country other than domicile as a
basis for jnrialloHon_ • • •
The first task of the court [under section 19151 is to determine whether or

not the foreign court bad jurisdiction under its laws. The court must then go on
to determine whether recognition of the foreign decree would violate due process
limitations or established local policy. If there is no such violation, a decree of

286

Interim Decision #1747
divorce that is valid according to the laws of the country should be recognized
here. *•*
There is no reason to read in the requirement of domicile or bona fide residence into the statute. The status of persons as married or not married should
be ascertainable with reasonable certainty. The valid judgments of courts of
other countries should therefore be respected unless they run counter to local
policy. The public policy of California may not permit the recognition of a
foreign divorce decree when the foreign jurisdiction has no legitimate interest in
the marital status of the parties, when the sole purpose of seeking the divorce
in a foreign court is to evade the laws of this state (see Civil Code 150-150.4)
or when the divorce is ex parte without reasonable notice to the defendant.

In the case of Rediher v. Rediker, 221 P.2d 1, 35 C.2d 796, the
court observed that personal service on an absent spouse is not a jurisdictional requirement, if the action is brought in the state of domicile
of the complainant, citing cases. Constructive service on the absent
spouse gives the court of the state of domicile jurisdiction of the cause
and the parties. In. the absence of competent contrary evidence, it must
be presumed that the foreign court had jurisdiction and that its
recital thereof was true.
In a case similar in many respects to the instant case, Matter of
%foam, 10 I. & N. Dec. 284, we held that a divorce decree granted

in Hungary in 1962 to two nationals of that country then
domiciled and physically present in New York is, in the exercise of
comity, recognized as valid by the State of New York, the marriage
having occurred in Hungary and both parties having entered appearance in the Hungarian divorce proceedings through counsel. It was
pointed out in. Matter of Koehn, supra, that the courts of the State
of New York in the exercise of comity have on several occasions recognized foreign divorce decrees where there was a showing that the
foreign court assumed jurisdiction over the marital res by reason of
in absentia

the fact that the marriage had been celebrated within the juricdio-

tion of the court and had assumed jurisdiction over the parties by
reason of their voluntary appearance and joinder although they were
never physically present before the foreign court and at least one of
the parties continued to be a resident of the State of New York?
A decree of divorce rendered in a foreign country is accorded recognition, if at all, on the ground of comity. Whether recognition will
be granted on the ground of comity depends on whether the decree
conforms to the public policy and good . morals of the state in which
the recognition is sought.' Many countries take jurisdiction of an
action involving their Own citizens, even though neither party is
Citing Hansen v. Hansen 8 N.Y. Sup.2d 655; Weil v. Weft, 28 N.Y. Sup. 2d 487;
Oettoen v. Oettgen. 94 N.Y. Sup.2d 188.
I Divorce, 27B, O.J.B. s. 829

287

Interim Decision 41'747
domiciled in the country of citizenship; other countries take jurisdiction if the defendant resides within their borders; others take jurisdiction if both parties reside but are not necessarily domiciled therein; and still others, only if they are the place of matrimonial domicile,
regardless of the present domicile of either party.'
We have recognized a Moslem divorce obtained in absentia in
Pakistan by a native and citizen of Pakistan while living in England
which is recognized as valid in England for the purpose of a subsequent marriage in that country. Under English law, a foreign divorce
decree will be recognized where the decree is valid in the country of
the domicile of the parties; the English courts will recognize having
extraterritorial validity any decree of divorce which is also recognized
as valid by the courts of the country of the domicile; the decree pronounced must be in accordance with the laws of that state; such a

decree when pronounced, is in a nature of a judgment in rem because
it affects status.' A divorce procured under Jordanian-Moslem law
by a Jordanian national, terminating his Jordanian marriage was recognized even though the person was then living in Puerto Rico and
secured his divorce by proxy through a duly executed power of attorney since such divorce was valid under Jordanian-Moslem law and
under ordinary rules of international comity was recognized.'
The District Director has equated the divorce obtained in the instant case with a Mexican "mail order" divorce. However, there are
very apparent differences between this divorce and the "in absentia"
or "mail order" Mexican divorce. In the latter case there exists either
no basis for jurisdiction or the parties were domiciliaries of California
and attempted to evade the jurisdiction of the California court and
to confer jurisdiction upon the Mexican court by fraud. In the instant
case the beneficiary and her first husband were natives and citizens
of Yugoslavia and the first marriage was celebrated in Yugoslovia.
Under Yugoslavian law there was a nexus for the jurisdiction of the
Yugoslavian court. The beneficiary stated that after learning that
her first husband had remarried, she sought to obtain a divorce in
Yugoslavia and has denied that her purpose in obtaining this divorce
was to evade any laws of the State of California. Her Yugoslavian
divorce decree was granted on the basis of desertion and abandonment.
We have already determined that the Yugoslavian court had a legal
basis for jurisdiction of the divorce. Recognition of the foreign divorce decree, where the beneficiary was represented by an attorney
Vreeland, Validity of Foreign. Divorcee, 293, 296, 299-305, 277-282, 305, 308,
257, 262, 309; Ley De Divorcio, Chihuahua, Article 31, 293-297 (1933).
Matter of Fare gue, 10 I. & N. Dec. 561.
8 Matter of Hassan, Int. Dec. No. 1469.

288

Interim Decision #1747
and her husband was represented by his father, the whereabouts of
the husband being unknown, would appear to conform with due process
limitations and not to contravene established local policy of California, There is judicial authority to accord recognition to a foreign

divorce such as exists in the instant case under section 1915 of the
California Code of Civil Procedure. Upon a full consideration of all
the circumstances of the case, the Yugoslavian divorce acted as a
lawful termination of the beneficiary's prior marriage and left the
beneficiary free to marry. The visa petition will be approved.
ORDER: It is ordered that the visa petition be approved for immediate relative status on behalf of the beneficiary.
DIVORCE OF YUGOSLAV CITIZENS RESIDING ABROAD

I. Sources of Law •

Divorce cases are tried and determined in accordance with the provisions of the Marriage Law of April 3,1946, sections 65 63, 72 81,t
-

-

and the Code of Civil Procedure of December 8, 1958. 2
II. Count jurisdiction to Try Divorce Cases of Citizens Residing
Abroad
As a rule, the district court (Okrugni sud), within the territory of
which the spouses had their last common domicile, has jurisdiction to
try divorce suits .3 However, if the spouses have no common domicile
in Yugoslavia and if one of them is a Yugoslav citizen at the time of
the filing of the divorce suit and the defendant has no domicile or
residence in Yugoslavia but the plaintiff has, the court, within the

territory of which the plaintiff has his domicile or residence, shall
have jurisdiction. If the plaintiff does not have his residence or domicile in Yugoslavia either, the Supreme Court of Yugoslavia shall determine which district court shall . have jurisdiction to try the case.'
III. Personal Appearance at Trial Not Required
The personal appearance of the parties in a divorce case is not a
necessary requirement. A spouse may file a divorce suit through a duly
appointed representative,' but the cause for divorce must be stated in
power of attorney.'
When a divorce is sought in agreement between the parties con1
2

Sluibeni list Federatione Narodne Republik° Jugoslavile, No. 29, 1946.
ibid., No. 4, 1957.

Code of Civil Procedure of 1956, sec. 47, par. 1.
.Thid., sec. 47, par. 2.
Srefto Znglia. Gradianski parniini postupak FMR.T. Zagreb, 1957. p. 595.
Marriage Law of 1946, see. 74, par. 2: Code of Civil Procedure of 1956. sec..
400.
2

4

289

Interim Decision #1747
cerned, proceedings are initiated by filing a motion which is agreed
upon by the parties. The court shall decide upon the motion by
judgment.'
When one or both spouses reside abroad, no reconciliation attempt
shall be made by the courts
IV. Service of Process
Service of process is governed by sections 122-132 of the Code of
Civil Procedure of 1957, in particular sections 125, paragraph 2, 130131'
Service of process upon a Yugoslav citizen abroad may be made
through the competent Yugoslav consular representative. Such service
is valid if the party concerned agrees to accept it (sec. 125, par. 2) .
Under the general provisions a complaint must be personally served
upon the defendant or his legal representative. If the defendant is
not at his place of abode, the official in charge of the service shall
inquire where the defendant may be found and shall leave with the
janitor or a neighbor a. written notice for the defendant to be at his
place of abode on a specified day and hour in order to receive the
•complaint. If the defendant does not appear as summoned, service of
process shall be made upon. the janitor or a neighbor. Such service shall
be considered valid (sec. 130-131).
Prepared by
Dr. Fran Gjupanovich
European Law Division
Law Library, Library of Congress
October 1960
1.

g

Code of 01111 Procedure of 1956, sec. 399.
aid., sec. 402, par. 8, No. 2.
Omcial Gazette of the Federal People's Itepublio of Yugoehrvia Nn. 4, 11157.

290


Interim Decision #1814

MATTER

OF PABAIUX0vasi

Application for Classification as Refugee
A-12948603
Decided by Regional Commissioner November 27, 1967
An alien's application under the proviso to section 203(a) (7) of the Immigration and Nationality Act, as amended, for refugee classincation Under section
203(a) (7) (B) as a person uprooted by catastrophic natural calamity who is
unable to return to his usual place of abode, is denied since the President has
not yet defined the term "catastrophic natural calamity" and applicant, therefore, does not come within the purview of section 203 (a) (7) (.).
ON BEHALF or APPLICANT: Mary L. Sfasclotti, Attorney at Law

Immigrants' Service League
008 South Dearborn Street
Chicago, Illinois .60605

This case has been certified to us by the District Director for review
of her denial of the application for refugee classification under the
proviso to section 203 (a) (7) of the Immigration and Nationality Act,
as amended.
The application was filed with the District Director pursuant to 8
CPR 245.4, in conjunction with an application for adjustment of status
under section 245 of the Act, as amended. The latter application is to
be considered by a special inquiry officer in the deportation proceedings which have been instituted.
The applicant is a citizen of Yugoslavia, single, male, born in that
country on July 15, 1925. He was admitted to the United States as a
visitor on November 10, 1961, and his status was subsequently changed
to that of a nonimmigrant student. He has not been absent from the
United States since he entered.
The application states that the applicant fled or was displaced from
Skopje, Yugoslavia, in 1963 because of an earthquake which destroyed
his home and consequently left him homeless. The application further
states that he is unwilling or unable to return because he no longer
has a home there.
An earthquake occurred at Skopje, Yugoslavia, on July 26, 1963
(WORLD ALMANAC AND BOOK OF FACTS 254 (1967) ).

526

Interim Decisicd. *1814
Section 203 (a) (7) of the Immigration and Nationality Act, as
amended, insofar as pertinent here provides as follows:
Conditional entries shall next be made available by the Attorney General,
pursuant to such regulations as be may prescribe and in a number not to exceed

6 per centum of the number specified in section 201(a) (II) to aliens who satisfy
an Immigration and Naturalization Service officer at an examination in any
non-Communist or non-Communist-dominated country, . . . (8) that they are
persons uprooted by catastrophic natural calamity as defined by the President
who are unable to return to their usual place of abode. . . . PROVIDED, That
immigrant visas in a number not exceeding one-half the number specified in this
paragraph may be made available, in lieu of conditional entries of a like number, to such aliens who have been continuously physically present in the United
States for a period of at least two years prior to application for adjustment of
status. ( italic supplied. )

In denying the application, the District,Director found that there
is no indication that the President has yet defined "catastrophic natural calamity" for the purpose of this provision. It was thereupon
concluded that the applicant does not come within the purview of section 203(a) (7) (B) of the Act.
The President has not defined "catastrophic natural calamity" for
the purpose of section 208(0(7) (B) of the Act. This provision has

been described as a "standby measure which can be activated by the
President when the need arises" (1 GORDON & ROSENFIELD,
IMMIGRATION LAW AND PROCEDURE 2-132 (rev. ed. 1966) ) .
Since the provision upon which this application is based has not
been implemented by the Executive action required, the application
was properly denied.
It is ordered that the District Director's decision denying the application be and is hereby affirmed.

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