Interim Decision #1963

MATTZR OP CARDOSO

In Deportation Proceedings
A-17619853

Decided by Board April 25, 1969
An alien admitted to the United States, destined to an existing certified job
with the intention of taking up the employment, must be considered as
having been lawfully admitted for permanent residence, and where he reports to such employment but declines to take the job for valid reasons
not reflecting a lack of good faith, the validity of his admission is not impugned.
CHARGE:

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable by law existing at time of entry (section
212(a) (14)' of the Act, S U.S.C. 1182)—coming to
perform unskilled labor—no valid labor certification.
ON BEHALF OF RESPONDENT:
Louis

ON BEHALF OF SERVICE:
Irving A. Appleman, Esquire
Appellate Trial Attorney

Perez, Esquire

155 Pleasant Street
Pawtucket, Rhode Island 02860

On July 81, 1968, the special inquiry officer granted the respondent the privilege of voluntary departure, but provided for
his deportation, on the charge contained in the order to show cause,
in the event of his failure so to depart. The special inquiry officer
then certified the case to this Board for review and final decision.
For the reasons set forth below, his decision will be withdrawn
and the proceedings terminated.
The record relates to a 28-year-old male alien, a native and national of Portugal, who was admitted to the United States for permanent residence on November 17, 1967. His wife and their infant child, both Portuguese natives and nationals, immigrated
with him.
The immigrant visa„ respondent presented at entry had been issued on the basis of a labor certification showing that he was des-

228

Interim Decision #1966
tined to the Conrad Mfg. Co., Pawtucket, Rhode Island, for employment as a braider tender, eight hours a day, 45 hours a week,
at $1.60 per hour. He has, however, never worked for a Conrad
Mfg. Co. since his entry.
Less than a week after arrival, respOndent went to work for
the Joyal and Van Dale Co., Pawtucket, Rhode Island, as a shoelace tipper, at $78 per week. After being thus employed for four
weeks, he went to work for the Rhode Island Textile Co., Pawtucket, Rhode Island, as a bobbin machine operator, at $1.70 per
hour, and is still so employed. He has presented a labor certification covering this work, which he obtained after the case came
forward to this Board.

At the hearing, evidence was presented, which the special inquiry officer believed, that when respondent obtained his labor
certification, his visa and admission into the United States, he
fully intended to go to work for the Conrad Mfg. Co. and did, in

fact, present himself there. He consulted a foreman about a job
for his wife 1, as well as for himself. The foreman advised against
both of them working in the same place, lest they both become
unemployed at the same time if there should be a strike or layoff.
As a result, his wife did go to work for the Conrad Mfg. Co., but
respondent, acting on the foreman's well intentioned advice, sought
and obtained employment elsewhere. He did so, however, only after
receiving assurance from the foreman that his job at Conrad's
always would be available to him, and it is still obtainable.
The special inquiry officer found that respondent had acted in
good faith. Relying, however, on our decision in Matter of Pfahler, 12 I. & N. Dec. 114 (1967), the special inquiry officer concluded that since the respondent did not at the time of entry have
a valid labor certification for the work into which he later actually entered, he was inadmissible under section 212 (a) (14) of
the Act and therefore deportable as charged.
Our decision in Pfahler does not compel that conclusion. That
case presented an exclusion situation, in which an alien applicant
for admission was found to be coming to a job for which he had
no labor certification. The Instant respondent, on the other hand,
at the time he applied for admission not only had a visa based on
a duly issued labor certification, but the certified employment was
actually in existence and awaiting him, and he intended in good
faith to proceed to it. focusing on the moment of admission, as
1

She did not have a labor certification, but did not need one because she

was the spouse of an alien with an approved sixth preference visa.

229

Interim Decision #1963
we must where deportability under section 214(a) (1) of the Act
is charged, we cannot find that respondent was at that time
barred from entry by the provisions of section 212(a) (14), as al-

leged.
Section 212(a) (14) was designed to protect American labor.
With stated exceptions, aliens coming here to work were to be de-

nied visas and entry if they would displace available American
workers or would adversely affect the wages and working conditions of American workers. As originally enacted in 1952, section
212 (a) (14) prescribed a negative certification by the Secretary of
Labor as a condition of exclusion. This exclusion provision was
drastically tightened by the 1965 amendment, 2 which required an
affirmative certification, with its underlying clearance procedures,

was the mechanism which Congress employed as the means for
screening out immigrants whose admission would adversely affect
American labor.

Once the intending immigrant successfully passed through the
screening procedures and the Secretary of Labor issued him a
labor certification, the way was paved for visa-issuance and admission for permanent residence. We can find nothing in the test
of section 212 (a) (14) or in its legislative history to indicate that
the admission of an alien so documented was designed by Congress as a conditional entry, to be convertible into permanent residence only after a stated probationary period' Neither does this
provision of the statute, or any other, make such an admission
one on condition subsequent, subject to defeasance if the alien
does not take up and maintain for a stated period of time the employment he has contracted to perform with the employer to
whom he was destined.'
Once an alien, such as the respondent, has been admitted, destined to an existing certified job with the intention of taking up
the employment, he must be considered as having been lawfully
admitted for permanent residence. If he reports to work and accepts the employment, he may still quit after a while because he
does not like the work or because he has received a better offer
eslewhere. 5 Where he reports to work and then declines to take
the job, under circumstances such as those outlined here, we do
not see how this can impugn the validity of his admission.
An alien's post-entry failure to take up or continue in the certiz Act of October 3, 1965; '19 Stet. 911.
Cf. section 203 (a) (7) of the Act, 8 U.S.C. 1153.
4 Cf. section 241(c) of the Act, 8 U.S.C. 1251(c).
5 See Matter of Marcoux, 12 I. & N. Dec. 827 (BIA, 1968.

3

230

Interim Decision #1963
fled employment may, of course, give rise to a suspicion that he
never intended to fulfill his employment contract in the first
place. Properly pursued, such a suspicion may lead to evidence
sufficient to undermine the validity of the labor certification. See
29 CFR 60.5. That is not the situation here. The special inquiry
officer has found, quite properly on this record, that the respondent at the time of entry fully intended to take up the certified employment.
ORDER: It is ordered that the special inquiry officer's decision
of July 31, 1968 be withdrawn and that the proceedings be and
they are hereby terminated.

231


Interim Decision #2484

MATTER OF GUZIVIAN
In Visa Petition Proceedings
A-20067047
Decided by Board March 5,

197'6

The United State, citizen petitioner seeks to accord beneficiary, a native and citizen of the
DominicanRepublic, immediate relative classification as her spouse on the basis of their
marriage in New Jersey in November 1973 following beneficiary's mutual consent
divorce from his first wife (also a Dominican) obtained in the Dominican Republic in
August 1973, the decree of which indicates that there was no personal appearance made
by either of the parties in the proceedings. Although the record does not clearly indicate
where the parties to the divorce were residing at the time the divorce Was obtained, if
the parties were then residing in the Dominican Republic, the divorce is invalid because
they did not personally appear before the court as required by Article 30 of the Civil
Code of the Dominican Republic. On the other hand, even if the parties were not
required to appear personally before the court under Article 28, Paragraph IV, of the
Civil Code of tie Dominican Republic because they resided abroad, the divorce is not
entitled to recognition because the State of New Jersey does not recognize absentee
divorcee obtained by its residents. Accordingly, beneficiary's subsequent marriage to
petitioner in Ni w Jersey is not valid to confer upon him immediate relative classification.
ON BEHALF OF PETITIONER: Antonio C. Martinez, Esquire
324 West 14th Street
New York, New York 10014

The United States citizen petitioner applied for immediate relative
status for the beneficiary as her spouse under section 201(b) of the
Immigration and Nationality Act. In a decision dated February 18,
1976, the district director denied the petition. The appeal will be dismissed.
The beneficiary, a native and citizen of the Dominican Republic,
married the petitioner in New Jersey on November 19, 1973. This is the

second marriage for the beneficiary. A divorce decree from a court in
the Dominican Republic was submitted indicating that the beneficiary
obtained a divorce by mutual consent from his first wife, also a Dominican, on August 29, 1973. It appears from the divorce decree that no
personal appearance was made by either of the parties in these proceedings. A copy of the Pronouncement of the divorce, dated September 7,
1973, is also contained in the record.
The district director denied the petition on the ground that the beneficiary's divorce was invalid in that the parties were neither personally
624

Interim Decision #2484
present before the court nor before the Official of the Civil Registry who
made the pronouncement.
Chapter IV (containing Articles 26 through 33) of Law 1306-bis (1937)
as amended by Law 142 (1971), Civil Code of the Dominican Republic,
sets out the procedures to be followed in divorces obtained by the

mutual consent of the parties. The procedures for mutual consent divorces sought by foreigners', by Dominicans residing abroad and by
Dominicans residing in the Dominican Republic are different.
The parties to the divorce involved here were both Dominicans.
According to Article 28, Paragraph IV, if they were residing outside of
the Dominican Republic at the time of the divorce action, both parties
could have submitted to the jurisdiction of the court without their
personal appearance to obtain a valid divorce in the Dominican Republic. If they were residing in the Dominican Republic at the time, they
must have personally appeared at a hearing before the court pursuant to
Article 30.
The record does not clearly indicate where the parties to the divorce
were residing when the divorce was obtained in 1973. Although it is
stated on the visa petition filed in November of 1973 that the beneficiary
had last entered the United States in 1970 and was residing in New
Jersey, the divorce decree indicates that the parties were both residing
in the Dominican Republic. If Lhe parties' wereindeed residents of the
Dominican Republic at the time of the divorce, the requirement of
personal appearance set out in Article 30 was not met, and the aiVorce is
invalid. Moreover, we are convinced that the divorce is not entitled to

recognition even if neither spouse was required to appear personally
before the Dominican court under Article 28, Paragraph W, because
they resided abroad. New Jersey does not recognize absentee divorces
obtained by its residents. Tonti v. Caldwell,' 1 N.J. 531, 64 A.2d 436
(1949).
We note that the district director also concluded that the divorce is
invalid because the parties did not personally appear before the Official
of the Civil Registry for the pronouncement of the divorce. That conclusion is erroneous. The statutory provision requiring personal appearance for the pronouncement applies to divorces obtained for cause, not
by mutual consent. See Law 659, Title V, Article 64 (1944), Civil Code of

the Dominican Republic.
The district director's decision denying the petition is correct. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
' The personal _ Euppeavance of only one of the partite in required in mutual consent

divorces sought by foreigners. Articles 28, Paragraph V, Law 1306-bis (1937) as amended
by Law 142 (1971), Civil Code of the Dominican Republic. See Matter of Atwater, 14 L &
N. Dec. 410 (BIA 1973)..

625


Interim Decision #1938

MATTER OF FUENTES-BLANCO

In Deportation Proceedings
A-14196901
Decided by Board December 27, 1968
Adjustment of status under section 245, Immigration and Nationality Act,
as amended, is denied as a matter of discretion to applicant who entered
this country with the preconceived intent to remain permanently, having
withdrawn all of her savings when she came to the United States, having
entered with a visitor's visa obtained from the American Consul in Mexico
City upon concealment that she had previously been denied a visitor's visa
by an American Consul in Chile, having traveled to the United States
from Mexico on a one-way ticket, and within ten days after arrival here
having applied for adjustment of status, having in her possession at entry
her birth certificate and a certificate of good conduct, which are needed in
support of an adjustment application.
CHARGE:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)]—Nonimmi-

grant—visitor for pleasure—remained longer.
ON BEHALF OF RESPONDENT: Lloyd A. Tasoff, Esquire
408 South Spring Street
Los Angeles, California 90013
(Brief filed)

The proceedings are before us on appeal from the decision of
the special inquiry officer who found respondent deportable as
charged, denied her applidation for adjustment of status to that
of a permanent resident under section 245 of the Immigration
and Nationality Act, and granted her the privilege of voluntary
departure with an alternate order of deportation to Chile in the
event she did not depart as and when directed.
The respondent is a 35-year-old single female alien, a native
and citizen of Chile, who entered the United States as a visitor
for pleasure on or about November 14, 1964. She remained longer
than permitted and in October 1967 the District Director, Los
Angeles, granted her voluntary departure to January 11, 1967 in
128

Interim Decision * 1938
lieu of the institution of deportation proceedings. She did not
leave the United States.
The respondent admits the allegations of fact contained in the
order to show cause and she concedes deportability. The sole
question before us in this appeal is whether she is entitled to
have her status adjusted to that of a permanent resident under
section 245 of the Act. The special inquiry officer found that she
was statutorily eligible for this relief but that it was denied as a
matter of discretion.
The special inquiry officer found that when she entered the
United States on or about November 14, 1964, being admitted on
a visitor's visa obtained by her from the American consul in Mexico City on or about November 13, 1964, she had the preconceived
intent of coming to the United States to remain here permanently
as an inunigrant. Thus, by this device of entering as a visitor she
avoided having to meet the various qualifications for obtaining an

immigrant visa. This being the case she was not entitled to the
favorable exercise of the Attorney General's administrative discretion. With this conclusion we are in agreement.
The respondent's application for adjustment of status under
section 245 of the Act was filed on December 5, 1964. Although
natives of Western Hemisphere countries are ineligible to adjust
their status in the United States after December 1, 1965 by reason of section 13 of the Act of October 8, 1965 (P.L. 89-236),
section 3 of the Act of November 2, 1966 (P.L. 89-732), allows
consideration of an application by a Western Hemisphere native
if it was filed prior to December 1, 1965. Thus, respondent is eligible to have her application for adjustment considered at this
time.
When the special inquiry officer denied the application for adjustment on January 18, 1968, that was the third time that the
application had been rejected. It was originally denied by the District Director on July 27, 1965, and then after the proceedings
were reopened upon motion and further consideration given to
the application, it was again denied by the District Director on
January 27, 1967.
The special inquiry officer has succinctly set forth in his decision the background facts relative to the respondent's entry into
the United States and what transpired thereafter, and it is not

necessary for us to repeat in detail these facts. However, we will
state that the record shows that respondent applied for a visitor's
visa in Santiago, Chile, which was denied by the American consul
there on October 19, 1964 on the basis that she failed to present

129

Interim Decision #1938
proof that she was a bona fide tourist. She then purchased a
round-trip airline ticket from Chile to Mexico and arrived in
Mexico City during the first week in November 1964. Shortly

thereafter, less than a month after having been denied a visitor's
visa in Chile, she obtained such a visa from the American consul
in Mexico City. She testified that she told the consul of the previous denial (Tr. of hearing p. 16). However, the consul advised
the Immigration and Naturalization Service on December 21,
1965 that there was no evidence of record that the respondent
had advised the consular officer at the time of interview that she
had been denied a nonimmigrant visa in Santiago, Chile. He
stated that the consular officer at the post would normally ask the
applicant if he had ever been denied a visa in his home country,
especially if he had just arrived (part of Ex. 4).
In connection with her application for adjustment, respondent
was interviewed by an immigrant inspector on February 22,

1965, at which time, through an interpreter, she gave a sworn
statement to the immigrant inspector (part of Ex. 4). The assertions contained in this sworn statement conflict with assertions
made at the time of the deportation hearing regarding whether
her intent when she entered the United States was to come here
as a bona fide visitor or whether she intended to remain in the
United States permanently. At the onset, counsel for respondent
contends that it was improper and illegal to enter this sworn
statement into the record because respondent was not informed
of her right to have counsel at the time she gave it. However, pursuant to 8 CFR 2422.14(c), any oral or written statement previously made by an alien during an investigation may be received
in evidence by the special inquiry officer. 1 A statement made by
an alien voluntarily and without counsel is admissible in deportation proceedings.2 Failure to advise a respondent of the right to
counsel at the time a preliminary sworn statement was voluntarily made does not render such statement inadmissible in evidence
in deportation proceedings since, there is no right to counsel during the taking of a statement in the investigative stage.3 Respondent testified (Tr. of hearing, pp. 34 & 35) that the sworn state1

Siting Hang Tsui v. Immigration and Naturalization Service, 389 F.2d

994 (1968).

2 Nozon. v. Immigration and Naturalization Service, 370 F.2d 865 (1965);
Matter of Argyros, 11 I. & N. Dec. 585; Matter of Pang, 11 I. & N. Dec.
213.
Almon v. Immigration and Naturalization Service, supra; Matter of

Steele, 12 I. & N. Dec. 302 (1967).

130

Interim Decision #1938
ment given by her on February 23, 1965 was freely and
voluntarily given.
A careful reading of the sworn statement reveals that respondent hedged in many of her answers but that she finally admitted
that at the time she came to the United States it was her intention to attempt to establish permanent residence (p. 5). This intention was denied by her at the deportation hearing. The special
inquiry officer states in his decision (p. 8) that he did not believe
that the respondent's belated self-serving clarifications offered
during the hearing were credible, and he found that the respondent's testimony lacked candor and probity. The hearing officer enjoys an inestimable advantage of seeing and hearing the person
testifying, and is in the best position to determine the accuracy,

reliability and truthfulness of the testimony.*
We find that within ten days after arriving in the United
States the respondent executed (on November 24, 1964) an application for adjustment of status under section 245 of the Act
(Form 1-485). She testified that this form was prepared by an
immigration advisor, one Marie Lopez, and that an affidavit of
support was executed by a husband and wife, citizens of the
United States, on November 30, 1964. The application for adjustment was filed on December 5, 1964, It is to be noted that when
the respondent traveled from Mexico City to Los Angeles she
purchased only a one-way ticket, although she did testify that she
intended to buy a return ticket in the United States. It is also to
be noted that she applied for a visitor's visa to the United States
in Mexico City after being there just a few days (p. 30 transcript
of hearing).
Respondent further testified that when she came to the United
States she withdrew all of her savings and that she had about
$800 on her person when she arrived (pp. 29, 32). When she entered the United States she had with her a birth certificate and a
certificate of good conduct, which of course are needed in applying for adjustment of status. She stated that her brother, who is
a police officer in Chile, told her that she should have these documents with her when she traveled.
After a most careful consideration of the entire record, including the affidavit executed by respondent and the brief filed by
counsel, we are of the opinion that this alien did come to the
United States with a preconceived intent to remain permanently.
We have held that even though a person is statutorily eligible for
Todaro v. Pederson., 205 P. Supp. 612 (1961), arid 305 F.2d 377 (1962) ,

cert. denied 371 U.S. 891 (1962) ; see also Matter of 21—, 7 I. & N. Dee. 417.

131

Interim Decision #1938
the benefits of section 245, it will generally be denied as a matter
of discretion to one who comes to the United States with a preconceived intention to remain here permanently. 3
We have further held that adjustment of status under section
245 will be denied in the absence of particular equities. 6 There are
no particular equities in this case which would justify the favorable exercise of administrative discretion, especially where, as in
this case, it is quite clear that the respondent did evade the normal visa issuing function of the Department of State. Also, respondent's entire family resides in Chile and she has no family or
relatives of any kind in the United States. The courts have held
on a number of occasions that lack of family ties in the United
States is alone a sufficient reason to deny adjustment of status
under section 245. 7
We will affirm the decision of the special inquiry officer to deny
adjustment of status as a matter of discretion. Accordingly, the
appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is
hereby dismissed.

8 1Ifatter of Garcia-Castillo, 10 I. & N. Dec. 516; Matter of Amities, 10 I.
& N. Dec. '774; Matter of Tonga, 12 I. & N. Dec. 212; Matter of Muslemi,

12 I. & N. Dec. 249.
G

Matter of Leger,

11 I. & N. Dec. 796; Matter of Ramirez,

12 L & N.

Dec. 78.
7 Kam Ng v. Pilliod,
279 F.2d 207 (1961), cert. denied 365 U.S. 860
(1961); Santos v. Immigration and Naturalization Service, 375 F.2d 262
(1967).

132


Interim Decision #2385

MATTER OF LOO BING SUN
In Deportation Proceedings
A-12874785
Decided by Board March 21, 1975
Respondent moved that the Board reconsider its decision of February 10, 1972, which
affirmed the decision of the immigration judge denying respondent's motion to reopen
deportation proceedings to consider an application for adjustment of status under
section 245 of the Immigration and Nationality Act. Respondent had previously been
granted adjustment of status on March 17, 19,66 based on preference classification as the
unmarried son of a lawful permanent resident. This adjustment was rescinded May 19,
1967 because respondent actually was married and not entitled to that adjustment.
Thereafter a new visa petition was approved according him preference classification as a
mauled son of a United States citizen_ Notwithstanding his eligibility to apply for
adjustment of status, as one who had been inspected and admitted, this motion to
reconsider is denied as a respondent is excludable under section 212(a)(19) of the Act as
an alien who has procured documentation by fraud. The respondent was not eligible for
a waiver of inadmissibility under section 212(1) of the Act or for relief under section
241(f) of the Act as he lacks the family relationship required by those sections. (Matter
of Ghazal, 10 I. es N. Dec. 344, to the extent that it is inconsistent with the rule stated in
Matter of Krastman, 11 I. & N. Dec. 720, is overruled.)
CHARGES

Order: Act of 1952-2Section 241(a)(1) [8 4 U.S.C. 1251(a)(1))—Excludable at time of
entry (section 212(a)(19))—(8 U.S.C. 1182(a)(19)]—Visa or
other documentation procured by fraud or willfully misrepresenting a material fact.

Act of 1952—Section 241(a)(1) [8 U.S:C. 1251(a)(1)]—Excludable at time of
entry (section 212(a)(20))—(8 U.S.C. 1182(a)(20)]—Immigrant,
not in possession of immigrant visa.

or SERVICE:
Newton T. Jones
Trial Attorney
(Brief filed)

ON BEHALF

ON BEHALF OF RESPONDENT:

Herman Ebner, Esquire
882 Security Building

Toledo, Ohio 43604

This is a motion to reconsider our decision of February 10, 1972,
wherein we affirmed the immigration judge's decision. The immigration
judge had denied the respondent's motion to reopen the proceedings to
consider an application for adjustment of status under section 245 of the
Immigration and Nationality Act, holding that the respondent was not
307

Interim Decision #2385
eligible for section 245 relief. We shall deny the motion to reconsider.
The record relates to a married male alien, 36 years of age, a native
and citizen of China. He was granted an adjustment of status to lawful
permanent resident on March 17, 1966, based on preference classification as the unmarried son of a lawful permanent resident. In fact he was
married at the time and was not eligible for the status accorded. He last
entered the United States on or about October 4, 1966 as a returning
lawful permanent resident. His adjustment of status was rescinded on
May 19, 1967. Deportation was ordered November 15, 1967 after the
respondent conceded deportability.
A new visa petition was approved on April 26, 1971 according the
respondent preference classification as the married son of a United
States citizen. On the basis of this petition, the respondent- moved to
reopen to apply for a new adjustment of status pursuant to section 245.
The immigration judge denied the motion on June 24, 1971 on the
ground that respondent was ineligible for an immigrant visa because he
is excludable pursuant to section 212(a)(19) as an alien who has procured
documentation by fraud. Eligibility for an immigrant visa is a prerequisite for section 245 relief. The immigration judge found that the respondent was nut eligible for a waiver of inadmissibility under section 212(1)
or relief from deportation under section 241(f) because he lacks the
family relationship required by those sections. Upon appeal to us, we
upheld the immigration judge's decision by our decision dated February
10, 1972.

The respondent moves us to reconsider on the basis that our decision
is inconsistent with Matter of Ghazal, 10 I. & 1st: Dec. 344 (BIA 1963)
which held that an alien who entered with a fraudulently procured visa
was eligible to apply for section 245 relief despite the fact that he had
entered for permanent residence with ari immigrant visa.
In Tiblce v. INS, 335 F.2d (C.A. 2, 1964), the court refused to follow

Matter of Da Silva, 10 I. & N. Dec. (BIA 1963), which had held that an
alien 'lawfully admitted for permanent residence was not eligible fr
section 245 adjustment. Relying on Tibke v: INS, supra, in Matter of
Krastman, 1:. I. & N. Dec. 720 (BIA 1966) we overruled Matter of Da
Silva, supra. Thus, the distinctions stressed in Matter of Ghazal, supra,
are no longer relevant. We recognize, however, that the language used
in the headnote, as well as some of the language in Matter of Ghazal is
misleading. To the extent that Matter of Ghazal, supra, is inconsistent
with the, rule stated in Matter of Krastman, supra, it is hereby overruled. An alien admitted for permanent residence is eligible to apply for
adjustment under section 245, whether deportability stems from a cause
preceding or accompanying entry (e.g. fraud), or after entry (e.g.
crimes).
Notwithstanding respondent's eligibility to. apply for adjustment
.

308

Interim Decision #2385
under section 245 as one "inspected and admitted" since section 245 also
requires that the alien "is eligible to receive an immigrant visa and is
admissible to the-United States for permanent residence" and the respondent is ineligible for any waiver of that ground of inadmissibility,
his application was properly denied. Our decision of February 10, 1972
will be affirmed.
ORDER: The motion is denied.

309


1111ML.•111.

JaPkilaW11

MATTER OF PAJARILLO

In Visa Petition Proceedings
A-18419619
Decided by Board May 31, 1988

Since the first marriage of petitioner, a native and citizen of the Philippines, to a
Filipino, contracted in the Philippine Islands, was terminated by a valid and
absolute divorce obtained by the first wife in Hawaii in 1963 at which time both
petitioner and the first wife were and had been long prior to the divorce permanent residents of the United States, his subsequent marriage in the Philippines
in 1964 to beneficiary, a native and citizen of the Philippines, is valid to accord
her preference status under section 203 (a) (2) of the Immigration and Nationality Act, as amended, notwithstanding petitioner's failure to disclose hie prior
marriage.
ON BEHIlLF or PErmorms : Arthur S. Komori, Esquire

P.O. Box 402
Lihne, Kauai 98766

The case comes forward pursuant to certification by the District
Director, Honolulu District, dited March 27, 1968 ordering that the
revocation proceedings instituted on December 21, 1967 be terminated
and further ordering that the visa petition be approved.
The petitioner, a native and citizen of the Philippines, 47 years old,
male, a lawfully admitted permanent resident of the 'United States
since March 15, 1946, seeks preference status under section 203(a) (2)
of the Immigration and Nationality Act on behalf of the beneficiary
as his wife. The beneficiary is a native and citizen of the Republic of the
Philippines, 44 years of age. The parties were married in a Catholic
church ceremony on September 2, 1964 at Santisimo Rosario, Manila,
Republic of the Philippines. The petitioner was married once previously. The file does not disclose the date or place of his prior marriage. The prior marriage of the petitioner was terminated by an absolute decree of divorce glinted by the Fifth Circuit Court in Lihue,
Hawaii on April 5, 1963. (The wife in the divorce proceedings was
granted custody of two daughters, born October 13, 1951 and June 8,

743

Interim Decision .#1866
1953 while the husband was granted custody of a son born February VP,,
1945.) The visa petition was approved by the District Director on
November 28, 1966.
In a letter dated November 2, 1967 (Ex. 1) a Vice Consul at the
American Embassy in Manila requested further consideration of the
approval of the visa petition. It was pointed out that the marriage
contract between the petitioner and beneficiary indicated that the petitioner was single as contrasted from divorced or widowed; that the
beneficiary stated that her husband had originally been married in the
Philippines, was divorced in Hawaii on April 5, 1963 and returned to
the Philippines where he married the beneficiary on September 2, 1964.
The visa petition indicates that the beneficiary will reside in Eleele,
Kauai, Hawaii. The Vice Consul concluded that a material fact was
misrepresented by the petitioner in order to contraa the present marriage; that the marriage is not recognized by Philippine law inasmuch
as divorce is not recognized by Philippine law ; that, as a consequence,
the beneficiary is nol entitled to second preference status as the wife of
an alien permanent resident of the United States. On December 21,
1967 the petitioner was given notice that the Service intended to revoke
the previously approved petition. The petitioner, through counsel, submitted another copy of the divorce decree terminating his first marriage and asserted only that the petitioner was free to marry for a second time. The sole issue to be decided is the validity for immigration
purposes of the petitioner's second marriage.
The District Director pointed out that the leading cases on this point
are Matter of Whitehurst, Lit. Dec. No. 1751 (July 11, 1967), and
Matter of AS — and and P— , 8 I. 82 N. Doc. 177. The former ease
involved a divorce secured by a prior husband, a United States citizen,
in the United States thereby terminating his marriage to the Filipino
beneficiary, and the snlwequent marriage of the petitioner, a United
States citizen, to the same beneficiary, a native and citizen of the
Philippines. This marriage was recognized for immigration purposes.
The other case stood for the proposition that Philippine law does not
bar recognition of an American divorce obtained by a naturalized
United States citizen husband, formerly a Philippine national, thus
dissolving marriage contracted in the Philippine Islands with the
Philippine spouse; that the husband's subsequent marriage in the
Philippine Islands was held valid, permitting acquisition of nonquota
status by the second wife.
We are in agreement with the well reasoned decision of the District
Director that the present marriage is valid for immigration purposes;
and that the difference between the instant case and the cited case, that
one of the parties was a citizen of the United States at the time his sec-

744

and marriage was contracted, while in this case both parties are still
citizens of the Republic of the Philippines, does not warrant a different conclusion.
The petitioner's prior marriage was terminated by divorce obtained
by the first wife in Hawaii. The petitioner at that time was a permanent legal resident of the United States and had been in that
status since 1946. The court which granted the divorce had jurisdiction over the parties and there is no question that the petitioner's first
marriage was validly and absolutely terminated by the divorce decree
in Hawaii.
Both the full faith and credit clause of the Constitution and familiar
principles of international law based upon comity require the acceptance at face value of a. judgment regularly granted by a competent
court unless a fatal defect is evident upon the judgment's face. A
divorce decree regularly granted by a court in the United States should
be accepted at face value and should be deemed to have terminated
the prior marriage for immigration purposes. For the purpose of the
immigration laws, a divorce regularly granted by a state court should
be regarded as valid. A subsequent remarriage in conformity with
the laws of that state or of any other state should be regarded as
equally valid. In adopting this policy, the requirements of the law

would be adhered to, proper effect would be given to judgments and
proceedings of a sovereign state, and reasonable safeguards would
thereby be erected to protect a properly solemnised marital relationship. The adoption of such a policy would unquestiohably facilitate the administration of the immigration laws. Matter of F—,
I. & N. Dec. 251,254.
The record establishes that the marriage ceremony was performed
in accordance with the laws of the Philippines. There is nothing to
show that this marriage has ever been questioned by a court of competent jurisdiction in the Philippines. A letter from the Philippine
Undersecretary of Justice dated March 15, 1966, quoted in Matter of
Whitehurat, Int. Dec. No. 1751, expressed the view that it is deemed
sufficient pursuant to established procedures for executive officials to
rely upon the legal presumption that a marriage duly contracted by
the parties is valid, especially so where the question arises only in
the issuance of a visa to a married woman desiring to enter her
husband's country which recognizes absolute divorce.
The final issue relates to the failure of the petitioner to disclose his
prior marriage to the priest who performed his present marriage. The
Supreme Court of the Philippines has held that concealment of a
prior marriage from the priest who solemnizes the second marriage
cannot be considered sufficient proof of bad faith. United States v.
Eltrigues, 32 Phil. 202.

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The only difference between the two cited cases and the instant
case is that the former involved divorces obtained by United States
citizens terminating a prior Philippine marriage whereas the present
case involves Filipinos and a Philippine marriage which was terminated by a divorce in the United States by persons over whom the
divorce court had jurisdiction, and who were permanent lawful residents of the United States long prior to the divorce. It is concluded
that the difference in the cases does not warrant any change in the
finding that the petitioner has met the burden of establishing, for
immigration and visa issuances purposes, a valid marriage to the
beneficiary. The order of the District Director will be affirmed.
ORDER: It is ordered that the decision of the District Director
dated March 27, 1968, terminating the revocation proceedings and
approving the visa petition be and the same is hereby affirmed.

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Matter of Kwan Ho KIM, Respondent
Decided January 31, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The crime of mayhem in violation of section 203 of the California Penal Code, which
requires a malicious act that results in great bodily injury to another person, necessarily
involves the use of violent force and is therefore categorically a crime of violence under
18 U.S.C. § 16(a) (2012).
FOR RESPONDENT: Claire H. Kim, Esquire, Los Angeles, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: R.R. Stern, Assistant Chief
Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
MALPHRUS, Board Member:

In a decision dated November 16, 2015, an Immigration Judge
terminated the removal proceedings against the respondent.
The
Department of Homeland Security (“DHS”) has appealed from that
decision. The appeal will be sustained, the removal proceedings will be
reinstated, and the record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of South Korea and a lawful
permanent resident of the United States. In January 2015, the DHS charged
him with removability under section 237(a)(2)(A)(iii) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien
convicted of an aggravated felony under section 101(a)(43)(F) of the Act,
8 U.S.C. § 1101(a)(43)(F) (2012), namely, a crime of violence for
which the term of imprisonment was at least 1 year. In support of this
charge, the DHS presented evidence establishing that the respondent
was convicted on December 16, 2013, of mayhem in violation of section
203 of the California Penal Code, for which he was sentenced to 2 years of
imprisonment.
It is undisputed that the respondent was convicted of mayhem and was
sentenced to a term of imprisonment of at least 1 year. The Immigration
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Judge nevertheless determined that the respondent’s offense did not qualify
as crime of violence because section 203 of the California Penal Code
lacked an explicit element regarding the use, attempted use, or threatened
use of violent force against another person, as required by 18 U.S.C.
§ 16(a) (2012). Whether mayhem under California law is a crime of
violence is a question of law that we review de novo. 8 C.F.R.
§ 1003.1(d)(3)(ii) (2016).

II. ANALYSIS
A. Categorical Approach
To determine whether the respondent’s conviction renders him
removable under section 237(a)(2)(A)(iii) of the Act, we employ the
categorical approach outlined by the Supreme Court in Taylor v. United
States, 495 U.S. 575 (1990), by comparing the elements of section 203 of
the California Penal Code to those of the Federal generic definition of a
crime of violence in section 101(a)(43)(F) of the Act. An element of a
statute is what the “prosecution must prove to sustain a conviction” and the
jury must find beyond a reasonable doubt. Mathis v. United States, 136
S. Ct. 2243, 2248 (2016) (quoting Black’s Law Dictionary 634 (10th ed.
2014)). In other words, an element of section 203 is any fact “necessarily
involved” in a mayhem violation. Moncrieffe v. Holder, 133 S. Ct. 1678,
1684 (2013) (emphasis added); see also Descamps v. United States, 133
S. Ct. 2276, 2299 (2013) (discussing Taylor’s “demanding requirement that
. . . a prior conviction ‘necessarily’ involved . . . facts equating to [the]
generic” offense (Alito, J., dissenting) (quoting Shepard v. United States,
544 U.S. 13, 24 (2005) (plurality opinion))).
Where the text of a State statute does not explicitly set forth an element
of the generic crime, we may look to, among other things, State case law or
jury instructions to discern whether the pertinent element is present. See
Mathis, 136 S. Ct. at 2249, 2256–57 (authorizing recourse to, inter alia,
“state court decision[s]” and “jury instructions” to discern whether an
aspect of a State statute is an element of the offense); see also Ramirez
v. Lynch, 810 F.3d 1127, 1131 (9th Cir. 2016) (“In identifying the elements
of the statute of conviction, we look not only to the text of the statute, but
also to how state courts have interpreted and applied the statute.”).
Because our examination is limited to the elements of section 203 of the
California Penal Code, or what a violation of this provision “necessarily
involved, . . . we must presume that the conviction ‘rested upon [nothing]
more than th[e] least of the acts’ criminalized, and then determine whether
even those acts are encompassed by the generic federal offense.”
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Moncrieffe, 133 S. Ct. at 1684 (alterations in original) (quoting Johnson
v. United States, 559 U.S. 133, 137 (2010)). Nevertheless, “our focus on
the minimum conduct criminalized by the state statute is not an invitation to
apply ‘legal imagination’ to the state offense; there must be ‘a realistic
probability, not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition of a crime.’” Id.
at 1684–85 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007)); see also id. at 1693 (stating that “[t]o defeat the categorical
comparison in this manner, a noncitizen would have to demonstrate that the
State actually prosecutes the relevant offense in cases involving” conduct
outside the generic definition of the crime (emphasis added)).
B. Crime of Violence
A crime of violence is defined in relevant part as “an offense that has as
an element the use, attempted use, or threatened use of physical force
against the person or property of another.” 18 U.S.C. § 16(a); see also
section 101(a)(43)(F) of the Act (incorporating the definition of a “crime of
violence” in § 16(a) into the Act). 1 The term “use” under § 16(a) “requires
active employment” and therefore denotes volition. Leocal v. Ashcroft, 543
U.S. 1, 9 (2004). And “the phrase ‘physical force’ means violent force—
that is, force capable of causing physical pain or injury to another person.”
Johnson, 559 U.S. at 140; see also Leocal, 543 U.S. at 11 (holding that
§ 16(a) “suggests a category of violent, active crimes”); Matter of Chairez,
26 I&N Dec. 819, 821 (BIA 2016) (stating that Johnson and Leocal control
our interpretation of § 16(a)).
Section 203 of the California Penal Code provides as follows:
Every person who unlawfully and maliciously deprives a human being of a
member of his body, or disables, disfigures, or renders it useless, or cuts or disables
the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.

Pursuant to the pertinent jury instructions, the State must prove—and a jury
must find—that a violator of this statute (1) committed an unlawful and
malicious act (2) that resulted in another person’s body part being removed,
disabled, or disfigured. See Judicial Council of California Criminal Jury
1

A separate definition of the term “crime of violence” is set forth in 18 U.S.C. § 16(b).
However, we will only address whether the respondent’s offense is categorically a crime
of violence under § 16(a) because the United States Court of Appeals for the Ninth
Circuit, in whose jurisdiction this case arises, has deemed § 16(b) to be unconstitutionally
vague for purposes of section 101(a)(43)(F) of the Act. Dimaya v. Lynch, 803 F.3d 1110,
1120 & n.17 (9th Cir. 2015), cert. granted, 137 S. Ct. 31 (2016).

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Instruction (“CALCRIM”) 801 (Oct. 2016); Cal. Jury Instr.—Crim.
(“CALJIC”) 9.30 (Sept. 2016); see also People v. Santana, 301 P.3d 1157,
1160 (Cal. 2013) (discussing the California jury instructions for “mayhem,”
which is an “older form of the word ‘maim’” (quoting People v. Keenan,
277 Cal. Rptr. 687, 692 (Cal. Ct. App. 1991))). 2
After reviewing the statutory text and the above jury instructions, the
Immigration Judge terminated proceedings, concluding that section 203
lacked an explicit element regarding the use, attempted use, or threatened
use of violent force against another person under § 16(a). However, her
analysis does not recognize that, even where the terms “use” and “force”
are not explicitly included in a statute’s text or the related jury instructions,
the requisite use of violent force under Johnson and Leocal may be intrinsic
to—or “necessarily involved” in—all violations of the statute. Moncrieffe,
133 S. Ct. at 1684; see also Mathis, 136 S. Ct. at 2256; Ramirez, 810 F.3d
at 1131.
1. “Use” of Force
The parties do not dispute that section 203 requires a defendant to
actively “use” force within the meaning of § 16(a), and based on the
elements of the offense, we conclude that it does. Mayhem under
California law must be committed “maliciously,” which means that it must
be done with an “intent to vex, annoy, or injure another person, or an intent
to do a wrongful act.” Santana, 301 P.3d at 1163 (emphases added)
(quoting People v. Bryan, 12 Cal. Rptr. 361, 364 (Cal. Ct. App. 1961))
(internal quotation mark omitted); see also Cal. Penal Code § 7(4) (2016)
(defining “malice”).
“Malicious” intent may be inferred through a defendant’s actions, which
must necessarily result in “the types of injuries” listed in section 203.
People v. Rodarte, 168 Cal. Rptr. 3d 12, 21 (Cal. Ct. App. 2014) (quoting
People v. McKelvy, 239 Cal. Rptr. 782, 785 (Cal. Ct. App. 1987)). For this
reason, California courts characterize mayhem as a crime that only requires
a general intent, rather than a specific intent to maim, disable, or disfigure.
See, e.g., id. However, a “‘general intent’ designation” under California
law does not reflect that the requisite “use” of force under Leocal is
2

The California Judicial Council “withdrew its endorsement of the long-used CALJIC
instructions and adopted the new CALCRIM instructions, effective January 1, 2006.”
People v. Thomas, 58 Cal. Rptr. 3d 581, 582 (Cal. Ct. App. 2007). The use of the newer
instructions is not mandatory, but merely “strongly encouraged” and “recommended,” so
the continued use of the CALJIC instructions is not legal error. Id. at 582–83 (quoting
California Rules of Court, Rule 2.1050(e)).

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necessarily absent; “it merely clarifies that the crime does not require” an
intent to inflict a specific injury. United States v. Grajeda, 581 F.3d 1186,
1193–97 (9th Cir. 2009) (analyzing whether an offense is a crime of
violence under section 2L1.2 of the United States Sentencing Guidelines,
which is identical to 18 U.S.C. § 16(a) in all relevant respects); see also
United States v. Laurico-Yeno, 590 F.3d 818, 822 n.4 (9th Cir. 2010)
(“A general intent crime can satisfy the generic definition of a ‘crime of
violence.’”). This is so because, while Johnson and Leocal dictate that a
crime of violence must involve a volitional act capable of causing physical
pain or injury, they do not require that the act be intended to cause a
specific type of qualifying harm. See Grajeda, 581 F.3d at 1193–96.
The malice requirement under section 203 ensures “that the proscribed
conduct was ‘a deliberate and intentional act, as distinguished from an
accidental or unintentional’ one,” even if there was no specific intent to
bring about the requisite type of injury. Rodarte, 168 Cal. Rptr. 3d at 21
(emphasis added) (quoting People v. Atkins, 18 P.3d 660, 668 (Cal. 2001));
see also id. at 22 (observing that even the intent to “‘vex, injure, or annoy’
connotes a knowing violation of social norms” (emphasis added)).
Accordingly, the term “maliciously” in section 203 signifies something
more than acting “recklessly,” which is separately defined under California
law as meaning that “a person is aware of and consciously disregards a
substantial and unjustifiable risk.” Cal. Penal Code § 450(f) (2016); see
also People v. Watie, 124 Cal. Rptr. 2d 258, 267–68 (Cal. Ct. App. 2002)
(noting the distinction between “malice” and “recklessness”); cf. People
v. Hayes, 129 Cal. Rptr. 2d 885, 888 (Cal. Ct. App. 2003) (holding that a
California sentencing law that only encompasses crimes “requir[ing] a
showing of willfulness and malice” excludes the crime of “recklessly
causing a fire”). Compare 1 Bernard E. Witkin, Cal. Crim. Law Elements
§ 12, Westlaw (4th ed. updated June 2016) (quoting the definition of
“recklessness” in section 450(f) of the California Penal Code), with id.
§ 11 (providing that “the element of malice in most [California] criminal
statutes is satisfied by the intentional doing of the act without justification
. . . (‘an intent to do a wrongful act’)” (emphases added)). 3
3

The mens rea of recklessness will only be relevant to a violation of section 203 of the
California Penal Code, if at all, where a defendant, in the course of intending “to vex or
annoy” the victim, recklessly deploys force that maims or disfigures that person.
However, to our knowledge no defendant has actually been prosecuted under section 203
for such conduct. See, e.g., Witkin, supra, Crimes Against the Person § 87 (discussing
the intent required to commit mayhem under section 203 and collecting cases). We
therefore conclude that there is no realistic probability that section 203 will be used to
actually prosecute a mayhem offense in which the use of physical force was reckless,
negligent, or accidental. See Moncrieffe, 133 S. Ct. at 1684–85.

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This is important because the Supreme Court has held that the phrase
“the use . . . of physical force against the person or property of another” in
§ 16(a) “most naturally suggests a higher degree of intent than negligent or
merely accidental conduct.” Leocal, 543 U.S. at 9. 4 Because section 203
of the California Penal Code requires that mayhem be committed
“maliciously,” that is, deliberately and intentionally, we conclude that the
respondent’s violation of the statute must have necessarily involved the
“use,” or active employment, of force contemplated by Leocal.
2. “Physical Force”
The respondent’s violation of section 203 of the California Penal Code
must also have necessarily involved the use of “violent” physical force
discussed in Johnson. The relevant jury instructions make clear that a jury
must find that a defendant’s malicious act resulted in removal of a part of
the victim’s body; disabling or making useless a part of the victim’s body;
permanently disfiguring that person; cutting or disabling that person’s
tongue; slitting that person’s nose, ear, or lip; or putting out or injuring that
person’s eye. 5 See CALCRIM No. 801; CALJIC No. 9.30.
While these instructions do not explicitly state that a defendant must use
“force” when, for example, putting out or injuring a victim’s eye, it is clear
that a jury must necessarily find that the defendant used some degree
of force in doing so, because an eye cannot be put out or injured without
force. See United States v. Nason, 269 F.3d 10, 20 (1st Cir. 2001) (holding
that Maine’s assault statute, which requires proof that an assault “cause
physical injury,” contains an implied element requiring the use of some
degree of physical force, because “to cause physical injury, force
necessarily must be physical in nature”); see also United States v. Waters,
823 F.3d 1062, 1064 (7th Cir. 2016) (noting that “proving intentional
causation of bodily harm ‘unambiguously requires proving physical force’”

4

The Ninth Circuit has held that recklessness is not “a sufficient mens rea to establish
that a conviction is for a crime of violence under § 16.” Fernandez-Ruiz v. Gonzales, 466
F.3d 1121, 1130 (9th Cir. 2006) (en banc). However, the Supreme Court has declined to
“resolve whether § 16 includes reckless behavior.” Voisine v. United States, 136 S. Ct.
2272, 2280 n.4 (2016). The Ninth Circuit has since recognized that Voisine may
undermine the circuit’s prior holdings because the Supreme Court’s interpretation of a
similarly worded statute suggests that “reckless conduct indeed can constitute a crime of
violence.” United States v. Benally, 843 F.3d 350, 354 (9th Cir. 2016).
5
In California, the jury verdict in a criminal case must be unanimous. See People
v. Russo, 25 P.3d 641, 645 (Cal. 2001) (citing Cal. Const. art. I, § 16).

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(quoting United States v. Upton, 512 F.3d 394, 405 (7th Cir. 2008)). 6
Because the jury instructions make clear that a malicious act under section
203 must necessarily be attended by some degree of force, the critical
inquiry then becomes whether the force involved in all violations of section
203 must necessarily be “violent” in nature, as contemplated by Johnson.
For the following reasons, we hold that it does.
As noted, section 203 requires a jury to find that a defendant committed
a malicious act that resulted in another person’s body part being removed,
disabled, or disfigured. Put another way, a jury must find that a
defendant’s malicious act under section 203 caused “great bodily injury” to
that person. Santana, 301 P.3d at 1163 (recognizing that mayhem includes
a “great bodily injury” component). California law defines “great bodily
injury” as a “significant or substantial injury.” People v. Escobar, 837 P.2d
1100, 1103 (Cal. 1992). 7
We conclude that a “malicious”—or deliberate and intentional—act that
causes “great bodily injury” under California law must necessarily involve
force capable of causing physical pain or injury to another person
pursuant to Johnson. First, as a matter of logic “it is impossible to cause”
the great bodily injury contemplated by section 203 “without using force
‘capable of’ producing that result.” United States v. Castleman, 134 S. Ct.
1405, 1416–17 (2014) (Scalia, J., concurring in part and concurring in
judgment). Moreover, the United States Court of Appeals for the Ninth
Circuit has explained that the degree of force necessarily involved in a
conviction “based on ‘force likely to produce great bodily injury[]’ . . .
must necessarily go beyond the ‘least touching,’ and represents ‘actual
force’ that is violent in nature.” Grajeda, 581 F.3d at 1192 (emphases
added); see also People v. Reed, 203 Cal. Rptr. 659, 661 (Cal. Ct. App.
6

We emphasize that we are not citing Waters and Nason for the proposition that
“violent” physical force within the meaning of Johnson was necessarily used by the
respondent in violating section 203. We merely cite these cases to support our
conclusion that some degree of force was necessarily involved in his offense, even
though neither the text of section 203 nor the relevant jury instructions explicitly require
that “force” be used to commit mayhem. Waters and Nason were interpreting the term
“physical force” in the context of deciding whether an offense was a misdemeanor crime
of domestic violence under 18 U.S.C. § 922(g)(9) (2012). Although the term “physical
force” under that provision incorporates a lesser degree of force than the “violent force”
described in Johnson, it nevertheless indicates that some degree of physical force was
necessarily involved in the offense at issue. See United States v. Castleman, 134 S. Ct.
1405, 1411−13 (2014).
7
Construing California’s rape statute, the California Supreme Court has additionally
held that the concept of “great bodily injury” excludes “substantial psychological and
emotional distress.” People v. Caudillo, 580 P.2d 274, 285−86 (Cal. 1978), overruled on
other grounds by People v. Martinez, 973 P.2d 512 (Cal. 1999).

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1984) (describing mayhem as “a crime involving destructive violence
toward another”). 8
Arellano Hernandez v. Lynch, 831 F.3d 1127 (9th Cir. 2016), supports
our conclusion in this regard. In that case, the court reiterated that a
conviction for criminal threats under section 422 of the California Penal
Code is categorically for a crime of violence under § 16(a), despite the fact
that the State statute and relevant case law failed to specify the degree of
force that must attend a proscribed threat. Id. at 1130–32. The court
reasoned that since the statute requires a violator of section 422 to
“willfully threaten[] to commit a crime which will result in . . . great bodily
injury to another person,” all violations of this provision must necessarily
involve “violent force” pursuant to Johnson. Id. (emphasis added).
Likewise, because a jury must find that a mayhem offense in violation of
section 203 of the California Penal Code involved a deliberate and
intentional act that will result in great bodily injury to another person, all
violations of this provision must also involve a degree of force that is
“violent” in nature within the meaning of § 16(a). See id.; Santana, 301
P.3d at 1163.
This remains the case even if mayhem under section 203 is committed
through the use of indirect force—for instance, where a victim is disabled
through the use of poison. See Arellano Hernandez, 831 F.3d at 1130–31;
see also Matter of Guzman-Polanco, 26 I&N Dec. 806, 807 (BIA 2016)
(recognizing the circuit split regarding whether the indirect use of force
satisfies the violent force requirement in Johnson and listing cases). The
Ninth Circuit has determined that a violation of section 422 of the
California Penal Code categorically falls within the generic definition of
§ 16(a), even if the threat was to poison another person. Arellano
Hernandez, 831 F.3d at 1131. While the court acknowledged cases in the
8

We recognize that the Second Circuit recently construed the violent force requirement
under Johnson as necessitating “no more nor less than force capable of causing [any]
physical pain or injury to a person.” United States v. Hill, 832 F.3d 135, 142 (2d Cir.
2016) (citing Castleman, 134 S. Ct. at 1417 (Scalia, J., concurring in part and concurring
in judgment) (rejecting the argument that Johnson “requires force capable of inflicting
‘serious’ bodily injury,” as opposed to merely “force capable of causing physical pain or
injury, serious or otherwise”)); see also De Leon Castellanos v. Holder, 652 F.3d 762,
766 (7th Cir. 2011) (holding “that so long as the force involved is ‘capable of causing
physical pain or injury to another person’ . . . the ‘physical force’ requirement of the
crime-of-violence definition is satisfied” (quoting Johnson, 559 U.S. at 140)). In this
case, we do not attempt to demarcate the precise point at which force becomes “violent”
under Johnson. We merely conclude that the force attendant to a “malicious” act that
causes “great bodily injury” to another person under California law necessarily satisfies
this threshold.

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Fourth and Fifth Circuits holding that poisoning cannot qualify as “physical
force” under § 16(a), it concluded that the Supreme Court’s more recent
decision in Castleman had rejected such reasoning. Id.
In Castleman, the Supreme Court made clear that “[t]he ‘use of
force’ . . . is not the act of ‘sprinkl[ing]’ the poison; it is the act of
employing poison knowingly as a device to cause physical harm. That the
harm occurs indirectly, rather than directly (as with a kick or punch), does
not matter.” Castleman, 134 S. Ct. at 1415. To hold otherwise, the Court
opined, would be equivalent to “say[ing] that pulling the trigger on a gun is
not a ‘use of force’ because it is the bullet, not the trigger, that actually
strikes the victim.” Id. Thus, even if a violation of section 203 involves the
indirect use of force, such as the use of poison, it still necessarily involves
the requisite use of violent force contemplated by Johnson. See Arellano
Hernandez, 831 F.3d at 1131 (citing United States v. De La Fuente, 353
F.3d 766, 770–71 (9th Cir. 2003) (concluding that a threat of anthrax
poisoning constitutes a “threatened use of physical force” because the
defendant’s “letters clearly threatened death by way of physical contact
with anthrax spores”)).
Concluding that a violation of section 203 entails anything less than the
use of violent force (such as an offensive touching) would require an
impermissible application of legal imagination. 9 See Moncrieffe, 133 S. Ct.
at 1684–85. We are unable to envision how a mere offensive touching, in
any practical sense, could be said to cause the removal of a limb, for
example. See Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1222 (9th Cir.
2004) (analyzing whether a violation of section 203 qualified as a crime of
violence under § 16(b) and rejecting the alien’s “efforts to concoct an
example of mayhem involving no physical force”). And we are unaware of
any California case relating to the prosecution of an individual for the crime
9

Generally, crimes like simple battery are not regarded as necessarily involving violent
force under § 16(a) because they only require proof of an offensive touching. See
Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016–17 (9th Cir. 2006) (holding that
simple battery under California law is not a crime of violence under § 16(a) because it
can be based on the “least touching”). By contrast, aggravated battery offenses—
particularly crimes like mayhem under section 203 that necessarily involve force that is
likely to or does result in “great bodily injury”—satisfy the violent force requirement.
See Grajeda, 581 F.3d at 1191–92. In this respect, California mayhem is more akin to an
aggravated battery offense because both entail more than mere offensive touching. See
id.; see also Witkin, supra, Crimes Against the Person § 85 (“Mayhem is a kind of
aggravated battery . . . .”); 2 Wayne R. LaFave, Substantive Criminal Law § 16.1(b)
(2d ed. Oct. 2016) (noting that “the common law did recognize the existence of a few
aggravated batteries, such as mayhem (which required not merely a bodily injury but in
addition a dismemberment type of injury)”).

920

Cite as 26 I&N Dec. 912 (BIA 2017)

Interim Decision #3885

of mayhem in which the only force used was offensive touching. See, e.g.,
Witkin, supra, Crimes Against the Person § 85 (listing acts that California
courts have determined constitute mayhem). Thus, there is no realistic
probability that section 203 will be used to actually prosecute a mayhem
offense involving such conduct. See Moncrieffe, 133 S. Ct. at 1684–85.

III. CONCLUSION
Although the text of section 203 of the California Penal Code and the
relevant jury instructions do not explicitly set forth an element regarding
“the use, attempted use, or threatened use of physical force,” the requisite
use of violent force under Johnson and Leocal is necessarily involved in all
violations of the statute. A defendant convicted under section 203 must
necessarily act “maliciously”—that is, deliberately and intentionally. Such
a deliberate and intentional act must necessarily involve the use of force,
and, because that force must result in great bodily injury under California
law, the force used must necessarily be violent in nature. For these reasons,
we conclude that a violation of section 203 is categorically a crime of
violence under § 16(a).
The respondent’s mayhem conviction under section 203 renders him
removable under section 237(a)(2)(A)(iii) of the Act as an alien convicted
of an aggravated felony crime of violence under section 101(a)(43)(F). The
Immigration Judge therefore erred when she terminated his removal
proceedings. Accordingly, the DHS’s appeal will be sustained, the removal
proceedings will be reinstated, and the record will be remanded to give the
respondent an opportunity to pursue the relief he sought before the
proceedings were terminated.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the
removal proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

921


„Interim Decision #2120

MATTER

OF

WONG*

In Deportation Proceedings
A-19057437
A-19058775
A-19058773
Decided by Board January 17, 1972
(1) Admission to the United States of respondents, a married female alien and her
two minor children, in possession of visas to which they were not entitled never
conferred a lawful status upon them, and they cannot rely on each other's
admission to bring themselves within the purview of section 241(0 of the Immigration and Nationality Act, as amended.
(2) The Service, acting out of a desire to benefit the minor respondents, should not
be penalized because orders to show cause were not issued to them when
proceedings were instituted against the mother. The issuance of orders to show
cause to the children subsequent to the mother's deportation hearing and a
request for reopening of proceedings in her case so that all three cases could be
considered at one time was not improper, since formal action in the cases of the
minors had been made an issue by the special inquiry officer.
CHARGES:
Order: Act of 1952— Section 241(aX1) [8 U.S.C. 1251(aX1)] — Excludable at
entry as aliens not of status specified in immigrant
visa.
Lodged: Act of 1952 Section 241(a)(1) [8
1251(a)(1)] — Excludable at
entry under section 212(a)(20), not in possession of
valid immigrant visas.
ON BEHALF OP RPSPONOPTITA:

ON BEHALF OF SERVICE:

R. A. Vielhaber
Appellate Trial Attorney

Michael W. Roberts, Esquire
970 North Hill Street
Los Angeles, California 90012

Reece B. Robertson
Trial Attorney
(Brief filed)

(Brief filed)

* Affirmed: 474 F.2d 739 (C.A. 9, 1973).

12

Interim Decision #2120
Respondents appeal from the special inquiry officer's order
finding them deportable on the lodged charge. Voluntary departure was granted. The appeals will be dismissed:
The facts have been fully stated in previous orders. Briefly,
respondents are a married female alien, 46 years of age, and her
two minor children. The adult respondent is a native and citizen of
China, the minor respondents are natives of Hong Kong and

citizens of Great Britain. The husband/father of the respondents
received an immigrant visa under the fourth preference. The
respondents were given preference visas as members of an immigrant's family accompanying him or following to join him, section
203(aX9) of the Act. The husband/father never came to the United
States. When the respondents applied for admission on March 7,
1969, the Service, unaware that they were not accompanying or
following to join the husband/father, admitted them for permanent
residence. On August 27, 1969, the Service instituted deportation
proceedings against the adult respondent. Proceedings were not
instituted against the minor respondents. 1 On October 15, 1969, the
special inquiry officer entered an order in the deportation proceeding finding that the adult respondent was not deportable because
she was within the provisions of section 241(f) of the Act which,
under certain conditions, save from deportation an alien who
entered by fraud or misrepresentation. As is pertinent here, one of
the conditions imposed by section 241(1) is that the alien who is

under proceedings be the parent or the child of an alien lawfully
admitted for permanent residence. The special inquiry officer
found that the adult respondent met this condition because she
was the parent of the two minor children who had been admitted
for permanent residence. The special inquiry officer held that
while the minors had been erroneously admitted for permanent
residence, he was required to consider them as having been
lawfully admitted for permanent residence until they were placed
in deportation proceedings and were formally adjudicated to be
deportable. He certified his decision to the Board since a novel

question was involved.
Before the Board acted, the Service placed the two minor
respondents under deportation proceedings and moved for reopening of the adult respondent's case so that the three cases could be
considered together. We granted the motion. In our order, we
pointed out that the special inquiry officer's decision having been
1 The Service states that it refrains from issuing an order to show cause in the
case of a deportable child of tender years whose parent is in deportation
proceedings. This restraint is exercised so that the child may leave on a
voluntary basis with the parent if the parent's departure is required.

13

Interim Decision #2120
certified was not a final action, but merely a suggested solution.
Our reopening order required the special inquiry officer to redetermine the issues presented.
The special inquiry officer handled the three cases together. He
held that respondents were deportable on the lodged charge since
they had not been admissible to the United States with their
preference immigrant visas! they were not accompanying or following to join their husband/father. It followed that they had not
been in possession of valid visas. He held that section 241(f) relief
was not available to any of the respondents since no person to
whom they had the necessary relationship was a lawful permanent resident alien or a United States citizen.
Counsel contends that the necessary conditions exist for the
application of section 241(f) to any respondent's case. He believes
that the lawful permanent resident mentioned in section 241(0
need not be a person who is a lawful permanent resident at the
time of the deportation proceeding as long as he was at one time,
no matter how brief a time, such a person. He believes that any of
the respondents is such a person because each, even if only for a
moment, was a lawful permanent resident upon admission. Additionally, he contends that the adult female respondent was a
lawful permanent resident, at least, from the time the special
inquiry officer terminated the deportation proceeding and certified
his decision, to the time the Board reopened proceedings.

The contentions are rejected. Admission of respondents in possession of visa to which they were not entitled never conferred a
lawful status upon them, Mannerfrid v. Brownell, 145 F. Supp. 55
(D.C., 1956); U.S. ex rel. Garos v. Reimer, 24 F. Supp. 869 (S.D.N.Y.,
1938), affirmed 97 F.2d 1019 (C.A.2, 1938), cert. denied 305 U.S. 650
(1938); Matter of M , 4 I. & N. Dec. 532 (A.G., 1952). The special
—

inquiry officer's original order terminating proceedings in the
belief that the adult respondent came within section 241(f) con-

ferred no rights upon her. As we stated in our order reopening
proceedings, a decision which is certified is not a final one, it is
merely a suggested disposition of a case. Not until the Board

enters its order is there a final adjudication of the alien's rights.
We are faced therefore, with the cases of three aliens who,
although admitted for permanent residence, were not lawfully
admitted. They cannot rely upon each other's admission to bring
themselves within section 241(f).
Cases cited by counsel concerning that aspect of section 241(f)
which makes it a condition of eligibility that the alien be "otherwise admissible" are inapposite. We do not reach this aspect of
eligibility since the respondents are clearly ineligible on the
ground we have previously discussed.
14

Interim Decision #2120
Counsel contends that the Board failed to follow its regulations
when it based its action in reopening the deportation proceeding
on the fact that orders to show cause had been issued in the cases
of the minor respondents. The regulation provides that the Board
shall not grant a reopening unless the motion to reopen is based
on evidence not previously available to the movant and the
evidence could not have been discovered or presented at the
former hearing, 8 CFR 3.2. Counsel contends that the Service,
aware that the minor respondents had not been lawfully admitted
for permanent residence, could have issued orders to show cause
and could have presented evidence of such issuance at the former

hearing. The contention must be dismissed. The fact that orders to
show cause were not issued to the children together with the
mother has been adequately explained by the Service. The Service
should not be penalized because it acted out of a desire to benefit
the minor respondents. Since formal action in the case of the
minors had been made an issue by the special inquiry officer, it
was not improper to take such formal action and then request
reopening of proceedings so that all three cases could be considered at one time.
We note that the adult respondent has another child involved

in immigration proceedings. Her son Lip (Lap) Kuen Wong,
A-17189943, a minor, was excluded by a special inquiry officer when
he applied on March 8, 1969 at Honolulu, Hawwaii. His appeal has
been dismissed by the Board. Counsel informed us that this child is
the beneficiary of an order issued by the United States District
Court at Los Angeles in habeas corpus proceedings permitting him
to stay in the United States until a final determination is made on
the adult respondent's case. The adult respondent filed a visa petition on this child's behalf requesting that he be classified as the
unmarried child of an alien lawfully admitted for permanent residence. The District Director denied the petition on the ground that

the petitioner was not an alien lawfully admitted for permanent
residence. Her appeal in the visa petition case, also before us, is
being dismissed this day.
ORDER: The appeals are dismissed.
Further order: Pursuant to the special inquiry officer's order,
the respondents are permitted to depart from the United States
voluntarily within 60 days from the date of this decision or any

extension beyond that time as may be granted by the District
Director; in the event of failure so to depart, the respondents shall
be deported as provided in the special inquiry officer's order.

15


MAI:rt.:R.

OF

Al--

In DEPORTATION Proceedings
A-10594987

Decided by Board August 5, 1960
Adjustment of status—Section

245 of 1952

act—Board lacks juriesdiction to

review Regional Commissioner's action.
Jurisdiction delegated to the Board of Immigration Appeals under 8 CYR
3.1(b) does not include authority to review Regional Commissioner's denial
of application for adjustment of status under section 240 or tne 1952 Act.
CHARGE :

Order: Act of 1952—Section 241(a) (2) [8 "U.S.C. 1251(a) (2)]—Remained
longer—nonimmigrant.
BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the special inquiry officer dated March 24, 1960, finding the alien
subject to deportation on the charge stated in the order to show cause
and directing that he be granted the privilege of voluntary departure
in lieu of deportation with the further order that if the alien fails
to so depart, the voluntary departure privilege be withdrawn and
he be deported.
The facts of the case are fully set forth in the decision of the
special inquiry officer. Briefly, the record relates to a native of
Poland, a citizen of Argentina, 38 years old, male, who last entered
the United States at the port of Miami, Florida, on October 21, 1956,
and was admitted as a nonimmigrant visitor for pleasure. An application for adjustment of status to that of a permanent resident
pursuant to section 245 of the Immigration and Nationality Act was
filed on December 13, 1956, was denied by the District Director, New
York District, on August 13, 1959, and the denial was affirmed on
appeal to the Regional Commissioner on November 20, 1959. The
respondent was notified of the final decision on December 3, 1959,
and advised that ho was required to depart from the United States

on or before January 3, 1960. No further extension of stay was
authorized but the respondent has nevertheless continued to reside

in this country. Thereafter, deportation proceedings were instituted.
The evidence sustains the charge in the order to show cause.

11

Counsel's contentions were raised below and are raised again in
connection with the appeal. Counsel contends that the respondent
was denied due process of law in the hearing which resulted in a denial of his petition for adjustment of status under section 245 of the
Immigration and Nationality Act and that this Board has authority
to review the propriety of and basis for the issuance of the warrant
of arrest or order to show cause which followed the denial of the
application under section 245 and the failure of the respondent to
depart within the time authorized. Counsel asserts that a failure of
due process is always reviewable and that this Board has authority
to so review under the regulations.
The regulations defining the Board's appellate jurisdiction are
contained in 8 CFR 3.1 (b). An examination of the seven subparagraphs under 8 CFR 3.1(h) reveals that they do not include appeals
from denials of applications for adjustment of status under section
245 of the Immigration and Nationality Act. Indeed, the regulations relating to adjustment of status, 8 CFR, Part 215, specifically
state that if the application for adjustment of status is denied, the
applicant shall be notified of the reasons thereof and of his right to
appeal in accordance with the provisions of Part 103. Section
103.1(e), Title 8, CFR, reserves to the respective Regional Commissioner all appellate jurisdiction specified in the chapter not reserved
to the Board of Immigration Appeals or to District Directors outside the United States.
Counsel argues that under 8 CFR 3.1(d), which describes the powers of the Board, there exists authority to consider his collateral
attack upon the Regional Commissioner's denial of the application
for adjustment of status under section 245. 8 CFR 3.1(d) provides
as follows:
. . Subject to asp) specific limitation prescribed by this chapter, in eonstaertug and Geteranning cases before it as provided in this part the Board
shall exercise such discretion and authority conferred upon the Attorney General by law - as Is appropriate and necessary for the disposition of the case ...
(Emphails supplied.)

It is believed that the emphasized specific limitations described,
as to appellate jurisdiction in 8 CFR 245.1, disposes of the argument
raised by counsel. A similar issue involving the provisions of
ot‘
8 CFR 212.7(a) was under consideration in Mator of DoG
8 325. The question presented there was the authority of the
Board to grant a waiver in the light of the provisions of 8 CFR
2197(a), which require that an application be made with the
Service in accordance with established procedures. The Attorney
General•eld t1- ..t the Board's delegated authority, which is as broad
as the Attorney General's in the areas which are under its jurisdiction, is at the same time subject to specific limitations and falls short
-

-

12

of the authority attempted to be exercised. The limits of the Board's
jurisdiction are described in 8 CFR 3.1 (b). However, decisions involving an application for exercise of the discretion and authority
contained in sections 5 and 7 of the Act of September 11, 1957 (and
also involving applications for adjustment of status under section
245 of the 1952 Act), are not among the decisions there listed to
which its appellate jurisdiction extends. It was accordingly held
that jurisdiction of the Board was not established and must, therefore, be said to reside in the Commissioner pursuant to the delegation
made by 8 CFR 2.1 (and in the instant case, to the Regional Cornmissioner as provided by the then 8 CFR 2.1). The Attorney General acknowledged that it was true, as urged, that the Board's powers
embraced "the exercise of such discretion and authority as is appropriate and necessary for the disposition of the case," but held that
these powers were subject to the limitations prescribed by the regulations and were confined to the jurisdiction in which the Board is
authorized to operate.
The decision of the Attorney General in Matter of DeG—, supra,
is equally applicable to and dispositive of the argument advanced by
counsel in regard to the proceedings under section 245 of the Immigration and Nationality Act. A collateral attack thereon cannot be
entertained in these expulsion proceedings. Upon a review of the
record of the deportation proceedings over which we have appellate
jurisdiction, the evidence sustains the finding of deportability. The

grant of the discretionary relief of voluntary departure appears to
be appropriate.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
'This is not to say that counsel is not free to raise his objection of lack
of due urocess or any other ground in an appropriate court proceeding. Ange/is v. Bouchard, 181 F. Supp. 551 (D.C. N.J., 1960).

13


Interim Decision #2468

MATTER OF IRANI

In Visa Petition Proceedings
A-21769965
Decided by Board February 4, 1976
(1) Prior to the Hindu Adoptions and Maintenance Act of India which became effective
December 21, 1956, the rule of Hindu law was that adoption by a woman of a son to
herself was invalid and conferred no legal right upon the person adopted, and that a
woman could adopt a child to her husband if she obtained his express consent during his
lifetime. The woman's power to adopt could not be greater than the husband had in his
own lifetime. The adoption of a son by a male Hindu was invalid if he had a son,
grandson or great-grandson, natural or adopted, living at the time of the adoption.
(2)Petitioner has failed to sustain her burden of proving that the beneficiary qualifies for
preference classification under section 203(a)(2) of the immigration and Nationality Act.
as amended, as her adopted son, since she has not submitted evidence to establish that
she complied• with the applicable provisions of Hindu law in effect at the time of the
alleged adoption of beneficiary in Bombay, India, on December 1, 1964. Further, it
appears that, even if petitioner !mold establish that she had the express consent of her
husband to adopt beneficiary, the adoption would be invalid under Hindu law because
she had a son living at the time of the adoption.
ON BEHALF OF PETITIONER: Brian J. Tucker, Esquire
1501 Broadway
New York, New York 10036

The lawful permanent resident petitioner applied for preference classification for the beneficiary as heir unmarried adopted son under section
203(a)(2) of the Immigration and Nationality Act. In a decision dated
May 7, 1975, the district director denied that petition. The petitioner
has appealed. The appeal will be dismissed.
The beneficiary is a 24-year-old male alien, native and citizen of India,
who is presently residing in the United States as a nonimmigrant
student. The petitioner is the sister of the beneficiary's father.
The record contains two documents dated February 27, 1974, and
December 7, 1974, which purport to be declarations by Homai Irani, the
natural mother of the beneficiary. The beneficiary's natural mother
alleges in her "Declarations" that the beneficiary was born on December
20, 1951; that the petitioner adopted the beneficiary in Bombay, India,
on December 1, 1954; and that the petitioner provided for the welfare
569

Interim Decision #2468
and education of the beneficiary since that date of his adoption. The
record indicates that the petitioner was married at the time of the
alleged adoption, is presently married, and has one living male child of
her own, who was born on September 3, 1944.
In the last paragraph of the brief in support of the petitioner's appeal,
counsel contends that the district director "refused to consider the
primary evidence of the adoption decree". We note that the record does
not contain a document purporting to be an adoption decree.
In visa petition proceedings, the burden of establishing the claimed
relationship is upon the petitioner. Matter of Brantigan, 11 I. & N. Dec.
493 (BIA 1966). In order for the petitioner to establish that the beneficiary is her adopted son, she must show that the beneficiary had
qualified as an adopted "child" as that term is defined in section 101(b)(1)(E) of the Act. Matter of Ng, 14 I. & N. Dec. 135 (BIA 1972).
Section 101(b)(1)(E) includes:
a child adopted while under the age of fourteen years if the child has thereafter been in
the legal custody of, and has resided with the adopting parent or parents for at least two
years...

Inasmuch as the adoption allegedly was accomplished in India, we
must look to the provisions of the Hindu law which were in effect at the
time of the alleged adoption. Inquiry was directed to the Library of
Congress to ascertain whether the beneficiary had any status under
Hindu law as an adopted child. A memorandum of law prepared by the
Library of Congress dated January, 1976 is attached hereto and made
a part hereof. According to the information furnished by the Library of
Congress, the Hindu Adoptions and Maintenance Act became effective
on December 21, 1956. Prior to the adoption of that Act, the rule of
Hindu law was that adoption by a woman of a son to herself was invalid
and conferred no legal right upon the person adopted; and that a woman
could adopt a child to her husband if she obtained his express consent
during his lifetime. The report of the Library of Congress also indicates
that prior to the enactment of the Hindu Adoptions and Maintenance
Act of 1956, the adoption of a son by a male Hindu was invalid if he had a
son, grandson or great-grandson, natural or adopted, living at the time
of the adoption.
The petitioner has not submitted evidence to establish that she complied with the provisions of the Hindu law which were in effect at the

time of the alleged adoption. Apart from the uncorroborated "declaration" of the beneficiary's natural mother, Homai Irani, no other evidence
has been submitted by the petitioner to support the claimed relationship. Further, we note that in the petitioner's application for status as
Prepared by Itrishan S. Nellie, Senior Legal Specialist, American-British Law Divi

sion, Law Library, Library of Congress.

570

Interim Decision #2468
permanent resident filed October 19, 1972, she listed a male child,
Ardesher Irani, born on September 3, 1944 as one of her own children.
In light of this fact, it appears that even if the petitioner could establish
that she had the express consent of her husband during his lifetime to
adopt the beneficiary, the adoption would be invalid under Hindu law
because she had a son living at the time of the adoption.
Therefore, we conclude that on the basis of this record, the petitioner
has failed to sustain her burden of proving that the beneficiary qualifies
as her adopted son under section 203(a)(2) of the Act. The following
order will be entered.

ORDER: The appeal is dismissed.
APPENDIX
India

Before the commencement of the Hindu Adoptions and Maintenance
Act, 1956, No. 78, on December 21, 1956, the general rule of Hindu law
relating to adoption was that every male Hindu of the ,a.ge of discretion
could take a son in adoption provided he was of sound mind and had no
son, grandson or great-grandson, natural or adopted, living at the time
of adoption. 1
A woman could only adopt "to her husband." 2 A wife could not adopt
in her husband's lifetime without his express consent. 3 After his death,
she could adopt a son if the husband had so authorized her However,

the woman's power to adopt could not be greater than the husband had
in his own lifetime. 4 Thus, the existence of a son, natural or adopted,
was a bar to an adoption by a woman also.
In the present case, the adoption made in 1954 of a son by a woman,
who had a son living since 1944, would appear to be invalid, and the
following statements are, therefore, correct:
(1) Adoption by a woman of a son to herself was invalid and conferred no legal right upon
the peison adopted; and
(2) A woman could adopt a child to her husband if she obtained his express consent
during his life time.
Prepared by
Krishan S. Nehra
Senior Legal Specialist
American-British Law Division
Law Library, Library of Congress
January 1976
W. Stokes, Hindu Law Books 531 534 (1865).
Puttulal v. Parbati Kunwar, 37 Indian L.R. Allahabad Ser. 359 (P.C. 1915); Narendra
Nath Bairagi v. Dina Nath Das, 37 Indian L.R. Calcutta Ser. 224 (1909).
1

-

2

a

Narayan Babaji v. Nana Manobar, 7 Bombay II. Ct. R. 155 (1570)

IL Srinivasan, I Principles of Hindu Law 187 (4th ed. 1969).

571

.