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Matter of Miguel Angel ALVARADO, Respondent
Decided December 29, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The generic definition of “perjury” in section 101(a)(43)(S) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (2012), requires that an offender make a
material false statement knowingly or willfully while under oath or affirmation where
an oath is authorized or required by law.
(2) The crime of perjury in violation of section 118(a) California Penal Code is
categorically an offense relating to perjury under section 101(a)(43)(S) of the Act.
FOR RESPONDENT: Edgardo Quintanilla, Esquire, Sherman Oaks, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Cindy C. Yu, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS and CREPPY, Board Members; GELLER,
Temporary Board Member.
MALPHRUS, Board Member:

In a decision dated December 1, 2014, we dismissed the respondent’s
appeal from an Immigration Judge’s decision after concluding that his
conviction for perjury in violation of section 118(a) of the California Penal
Code is categorically a conviction for an aggravated felony that renders him
ineligible for relief from removal. On January 13, 2016, the United States
Court of Appeals for the Ninth Circuit remanded this case to us to further
consider whether the respondent’s perjury conviction under California law
is for an aggravated felony under section 101(a)(43)(S) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (2012). Both parties filed
briefs on remand. The respondent’s appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala who entered the
United States without inspection on or about March 3, 1985. On June 1,
1993, he was convicted of perjury in violation of section 118(a) of the
California Penal Code and was sentenced to 2 years of incarceration. The
Department of Homeland Security initiated removal proceedings on
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February 3, 2004, charging him with inadmissibility under section
212(a)(6)(A)(i) of the Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as an alien
who is present in the United States without being admitted or paroled.
During the proceedings, the respondent conceded removability and
applied for cancellation of removal under section 240A(b)(1) of the Act,
8 U.S.C. § 1229b(b)(1) (2012), special rule cancellation of removal under
section 203 of the Nicaraguan Adjustment and Central American Relief Act
(“NACARA”), Pub. L. No. 105-100, 111 Stat. 2160, 2193, 2196 (1997),
amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), and suspension of
deportation under former section 244(a) of the Act, 8 U.S.C. § 1254(a)
(1994). Relying on Matter of Martinez-Recinos, 23 I&N Dec. 175
(BIA 2001) (en banc), the Immigration Judge concluded that the
respondent’s perjury conviction is for an aggravated felony that renders him
ineligible for relief from removal pursuant to section 101(a)(43)(S) of the
Act. We affirmed the Immigration Judge’s conclusion in this regard.
The respondent filed a petition for review in the Ninth Circuit, which
granted an unopposed motion to remand. We have been asked to further
consider our previous determination in Matter of Martinez-Recinos that
18 U.S.C. § 1621 (1994) provides the generic definition of perjury for
purposes of section 101(a)(43)(S) of the Act. 1

II. ANALYSIS
The definition of the term “aggravated felony” includes “an offense
relating to . . . perjury . . . for which the term of imprisonment is at least one
year.” Section 101(a)(43)(S) of the Act. In Matter of Martinez-Recinos,
23 I&N Dec. at 177, we held that a violation of section 118(a) of the
California Penal Code is categorically an aggravated felony perjury
offense. 2 Because neither the language of the Act nor prior case law

1

Because the record was remanded for this purpose only, no other issues are before us,
including the denial of the respondent’s applications for relief.
2
At all relevant times, section 118(a) of the California Penal Code has provided, in
pertinent part, as follows:
Every person who, having taken an oath that he or she will testify, declare, depose,
or certify truly before any competent tribunal, officer, or person, in any of the cases
in which the oath may by law of the State of California be administered, willfully
and contrary to the oath, states as true any material matter which he or she knows
to be false, and every person who testifies, declares, deposes, or certifies under
penalty of perjury in any of the cases in which the testimony, declarations,
depositions, or certification is permitted by law of the State of California under
(continued . . .)

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described the Federal generic definition of aggravated felony perjury at that
time, we looked to 18 U.S.C. § 1621, the Federal statute defining perjury,
to define the generic crime. Comparing the elements of section 118(a) to
those in § 1621, we concluded that “the provisions of each statute are
essentially the same” and therefore that section 118(a) matches the generic
definition of perjury. Id.
In so holding, we did not explain why we relied on § 1621 for the
generic definition of perjury. Upon further consideration, we conclude that
18 U.S.C. § 1621 alone does not provide the generic definition of perjury
for purposes of section 101(a)(43)(S) of the Act. Instead, we find it
appropriate to adopt a generic definition based on how the crime of perjury
was commonly defined at the time section 101(a)(43)(S) was enacted. We
therefore look first to the definition of the term “perjury” that Congress
contemplated when it added the offense to the Act in 1996. See Taylor
v. United States, 495 U.S. 575, 592, 598 (1990) (construing an offense’s
generic definition in accordance with its “contemporary usage,” or the
“sense in which the term is . . . used in the criminal codes of most States”);
Perrin v. United States, 444 U.S. 37, 42 (1979) (looking “to the ordinary
meaning of the term ‘bribery’ at the time Congress enacted the statute”);
see also Matter of M-W-, 25 I&N Dec. 748, 751–52 (BIA 2012).
Accordingly, we will survey the definitions codified in State and
Federal statutes, the Model Penal Code, and the scholarly commentary that
existed in 1996 to determine the contemporary usage of the term
“perjury” at the time section 101(a)(43)(S) was enacted. This approach will
allow us to articulate a “uniform definition [of perjury] independent of the
labels employed by the various States’ criminal codes.” Taylor, 495 U.S. at
592; see also United States v. Garcia-Santana, 774 F.3d 528, 533–34
(9th Cir. 2014) (citing Taylor and describing the appropriate method for
determining the contemporary usage of a term). 3 We will withdraw from
Matter of Martinez-Recinos to the extent that it conflicts with this new
analysis. 4
_______________________________

penalty of perjury and willfully states as true any material matter which he or she
knows to be false, is guilty of perjury.
3

We recognize that the Ninth Circuit has applied the current versions of State statutes
when determining the generic definition of an offense. See Garcia-Santana, 774 F.3d at
535 n.4. However, because we do not discern any meaningful difference between State
perjury statutes in 1996 and contemporary provisions, this would not affect the outcome
of our analysis.
4
Although Matter of Martinez-Recinos was rendered by the Board en banc and this
case is being decided by a three-member panel, a majority of the permanent Board
members have designated this decision for publication, and it will serve as precedent
(continued . . .)

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A. Survey of Perjury Statutes
The offense of perjury, which has a long history in American
jurisprudence, has not diverged significantly from its common law roots.
United States v. Norris, 300 U.S. 564, 574 (1937) (stating that perjury has
been a common law crime since at least the 17th century and “the
conception embodied in the common law definition of perjury has been
embodied in statutes”); cf. Matter of M-W-, 25 I&N Dec. at 751 (looking to
common law to discern the generic definition of the crime of “murder,”
which we found had “not diverged significantly from its common-law
roots”). At common law, perjury was defined as “a crime committed when
a lawful oath is administered, in some judicial proceeding, to a person who
swears willfully, absolutely, and falsely, in a matter material to the issue or
point in question.” 4 William Blackstone, Commentaries on the Laws of
England, 136–37 (1769). See generally United States v. Wells, 519 U.S.
482, 504 n.6 (1997) (Stevens, J., dissenting) (describing the common law
definition of perjury).
The Model Penal Code slightly expanded the common law definition of
perjury by proscribing false statements made “in any official proceeding,”
not just those made in “judicial” proceedings. Model Penal Code
§ 241.1(1) (1985). Consequently, under the Model Penal Code, a perjury
offense may occur “before any legislative, judicial, administrative or other
governmental agency or official authorized to take evidence under oath.”
Model Penal Code § 240.0(4) (defining the term “official proceeding” for
purposes of section 241.1 of the Model Penal Code).
The States’ perjury laws have many similarities to the common law and
Model Penal Code definitions. When the term “perjury” was added to
section 101(a)(43)(S) of the Act in 1996, the majority of States agreed that
perjury must at least include (1) a material (2) false statement (3) made
knowingly or willfully5 (4) while under oath, affirmation, or under penalty
of perjury.
_______________________________

going forward. See 8 C.F.R. § 1003.1(g) (2016) (“By majority vote of the permanent
Board members, selected decisions of the Board rendered by a three-member panel or by
the Board en banc may be designated to serve as precedents in all proceedings involving
the same issue or issues.”).
5
Some States had a “knowing” mens rea in their perjury statutes, while others included
a “willful” requirement. However, these states of mind are not meaningfully
distinguishable because courts have uniformly interpreted the willfulness requirement of
perjury to mean that the defendant knowingly made the false statement. See Bronston
v. United States, 409 U.S. 352, 359 (1973) (stating that for purposes of the Federal
perjury statute, “the state of mind of the witness is relevant only to the extent that it bears
on whether ‘he does not believe (his answer) to be true’”); see also Matter of Esqueda,
(continued . . .)

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In 1996, many State perjury laws, as well as the Federal statute, 6
included language reflecting that a false statement must be made under oath
at a “proceeding” before it will be considered perjury. While some State
statutes did not clearly include this requirement, 7 the majority of States, the
Model Penal Code, and the Federal statute required that the witness take the
oath in an “official proceeding,” 8 or in a proceeding where an oath was

_______________________________

20 I&N Dec. 850, 858 (BIA 1994) (stating that the word “willful” generally means that
“a person acts knowingly with respect to the material elements of the offense, unless a
purpose to impose further requirements appears” (emphasis in original) (quoting United
States v. Hoyland, 914 F.2d 1125, 1129 (9th Cir. 1990))); Model Penal Code § 2.02(8);
2-48 Modern Federal Jury Instructions—Criminal § 48.01.
6
At the time when Congress enacted section 101(a)(43)(S), the Federal perjury statute
at 18 U.S.C. § 1621 set forth the following comprehensive definition of perjury:
Whoever—
(1) having taken an oath before a competent tribunal, officer, or person, in any
case in which a law of the United States authorizes an oath to be administered, that
he will testify, declare, depose, or certify truly, or that any written testimony,
declaration, deposition, or certificate by him subscribed, is true, willfully and
contrary to such oath states or subscribes any material matter which he does not
believe to be true; or
(2) in any declaration, certificate, verification, or statement under penalty of
perjury as permitted under section 1746 of title 28, United States Code, willfully
subscribes as true any material matter which he does not believe to be true;
is guilty of perjury . . . .
7

See, e.g., Alaska Stat. Ann. § 11.56.200 (West 1996); Ariz. Rev. Stat. Ann. § 13-2702
(1996); N.Y. Penal Law § 210.15 (McKinney 1996); Or. Rev. Stat. Ann. § 162.065 (West
1996); R.I. Gen. Laws Ann. § 11-33-1 (West 1996); Tenn. Code Ann. § 39-16-702 (West
1996); Va. Code Ann. § 18.2-434 (West 1996).
8
See, e.g., Ala. Code § 13A-10-101 (1996) (proscribing perjury in the first degree); Ark.
Code Ann. § 5-53-102 (West 1995); Colo. Rev. Stat. Ann. § 18-8-502 (West 1996)
(criminalizing perjury in the first degree); Conn. Gen. Stat. Ann. § 53a-156 (West 1996);
Fla. Stat. Ann. § 837.02 (West 1996) (proscribing perjury in official proceedings); Haw.
Rev. Stat. Ann. § 710-1060 (West 1996); Ky. Rev. Stat. Ann. § 523.020 (West 1996)
(criminalizing perjury in the first degree); Me. Rev. Stat. Ann. tit. 17-A, § 451 (1996);
Mo. Ann. Stat. § 575.040 (West 1996); Mont. Code Ann. § 45-7-201 (West 1996);
Neb. Rev. Stat. Ann. § 28-915 (West 1996); N.H. Rev. Stat. Ann. § 641:1 (1996); N.J.
Stat. Ann. § 2C:28-1 (West 1996); N.M. Stat. Ann. § 30-25-1 (West 1996); N.D. Cent.
Code Ann. § 12.1-11-01 (West 1995); Ohio Rev. Code Ann. § 2921.11 (West 1996);
18 Pa. Stat. and Cons. Stat. Ann. § 4902 (West 1996); Utah Code Ann. § 76-8-502 (West
1996) (proscribing false or inconsistent material statements); Wash. Rev. Code Ann.
§ 9A.72.020 (West 1996) (criminalizing perjury in the first degree).

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either “required or authorized by law.” 9 For our purposes, we see no
meaningful distinction between an official proceeding and one where an
oath is authorized as part of the proceeding. See Model Penal Code
§ 240.0(4) (including within an “official proceeding” a proceeding that is
heard before an official who is “authorized to take evidence under oath”).
Because “removal proceedings are a function of Federal law,” we also
rely to a “significant degree” on 18 U.S.C. § 1621—the Federal perjury
statute at the time that section 101(a)(43)(S) was enacted—to discern the
elements of generic perjury. Matter of M-W-, 25 I&N Dec. at 752 n.5
(quoting Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 994–95
(BIA 1999)). The roots of § 1621 date back to at least the Perjury Statute
of 1563, and the statute has “remained unchanged in its material respects
for over a century.” United States v. Dunnigan, 507 U.S. 87, 94 (1993).
We therefore presume that Congress was familiar with 18 U.S.C. § 1621
when it enacted section 101(a)(43)(S) of the Act. Miles v. Apex Marine
Corp., 498 U.S. 19, 32 (1990) (“We assume that Congress is aware of
existing law when it passes legislation.”).
The Supreme Court has clarified that a witness violates this statute
when, while testifying under oath or affirmation, he or she “gives false
testimony concerning a material matter with the willful intent to provide
false testimony, rather than as a result of confusion, mistake, or faulty
memory.” Dunnigan, 507 U.S. at 94. 10 This definition is consistent with
the central elements of perjury set forth in the majority of State statutes, the
Model Penal Code, and the common law. See id. (recognizing that
18 U.S.C. § 1621 “parallels typical state-law definitions of perjury” and has
“gained general acceptance” as the acknowledged definition of perjury).

9

Iowa Code Ann. § 720.2 (West 1996); see also, e.g., D.C. Code § 22-2511 (West
1996); Idaho Code Ann. § 18-5401 (West 1996); 720 Ill. Comp. Stat. Ann. 5/32-2 (West
1996); Kan. Stat. Ann. § 21-3805 (West 1996); Mass. Gen. Laws Ann. ch. 268, § 1 (West
1996); Nev. Rev. Stat. Ann. § 199.120 (West 1996); N.C. Gen. Stat. Ann. § 14-209 (West
1996); S.D. Codified Laws § 22-29-1 (1996); Wyo. Stat. Ann. § 6-5-301 (West 1996).
10
The majority of the circuit courts have adopted this articulation of the elements of
18 U.S.C. § 1621. See, e.g., United States v. Thompson, 808 F.3d 190, 194 (2d Cir. 2015)
(per curiam); United States v. Waters, 799 F.3d 964, 974 (8th Cir. 2015); United States
v. Rodebaugh, 798 F.3d 1281, 1300 (10th Cir. 2015) (per curiam); United States
v. Fermin, 771 F.3d 71, 81 (1st Cir. 2014); United States v. Riney, 742 F.3d 785, 790 (7th
Cir. 2014); United States v. Watkins, 691 F.3d 841, 851 (6th Cir. 2012); United States
v. Armstrong, 620 F.3d 1172, 1176 (9th Cir. 2010); United States v. Singh, 291 F.3d 756,
763 & n.4 (11th Cir. 2002); United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998);
United States v. Como, 53 F.3d 87, 89 (5th Cir. 1995); United States v. Rose, 215 F.2d
617, 622–23 (3d Cir. 1954).

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Based on the above, we conclude that the generic definition of the term
“perjury” in section 101(a)(43)(S) of the Act requires that an offender make
a material false statement knowingly or willfully while under oath or
affirmation where an oath is authorized or required by law. See Taylor, 495
U.S. at 598; Garcia-Santana, 774 F.3d at 534; see also United States
v. Esparza-Herrera, 557 F.3d 1019, 1025 (9th Cir. 2009) (finding that a
consensus among 33 States regarding the elements of aggravated assault
was sufficient to establish the elements of the generic definition of that
crime). 11
Because the majority of States, the Model Penal Code, and the Federal
statute included the foregoing elements in their definition of perjury when
Congress enacted section 101(a)(43)(S) of the Act, we conclude that this
definition also embodies the level of criminal liability that Congress
intended when it added the offense of perjury to the Act in 1996. See
Torres v. Lynch, 136 S. Ct. 1619, 1628 (2016) (refusing to construe section
101(a)(43) of the Act so as to produce the “haphazard” result of including
some serious State offenses while excluding others); Matter of H. Estrada,
26 I&N Dec. 749, 752–53 (BIA 2016) (rejecting an interpretation of the
Act that “frustrate[s] the manifest purpose of the legislation by rendering it
inapplicable in the clear majority of the States”).
B. California Perjury Statute
Comparing the elements of section 118(a) of the California Penal Code
to the generic definition of perjury, we conclude that the respondent’s
conviction is categorically for an offense “relating to” perjury under section
101(a)(43)(S) of the Act. We have consistently ascribed an expansive
meaning to the phrase “relating to” under the Act. Matter of Oppedisano,
26 I&N Dec. 202, 204 (BIA 2013) (stating that a “relating to” parenthetical
in the Act is “widely understood to have a descriptive import” (quoting
United States v. Harrell, 637 F.3d 1008, 1012 (9th Cir. 2011))); Matter of
Gruenangerl, 25 I&N Dec. 351, 356 (BIA 2010) (concluding that the
phrase “relating to” in section 101(a)(43)(R) of the Act “encompasses a
broad range of conduct”); see also Mellouli v. Lynch, 135 S. Ct. 1980, 1990
(2015) (recognizing that the phrase “‘relating to’ [is] ‘broad’ and
‘indeterminate’” (citation omitted)).
Section 118(a) criminalizes both oral and written perjury. See Rivera
v. Lynch, 816 F.3d 1064, 1072 (9th Cir. 2015). The Ninth Circuit has held
that oral perjury under section 118(a) requires proof of “a willful statement,
11

Mirroring the Federal statute and many State statutes, this generic definition
incorporates false statements made orally and in writing under penalty of perjury.

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under oath, of any material matter which the witness knows to be false.”
Id. (quoting Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004)). Such an
oath must also be provided “under circumstances in which the oath of the
State of California lawfully may be given.” Judicial Council of California
Criminal Jury Instructions (2016 edition), CALCRIM No. 2640. Written
perjury under section 118(a) mirrors oral perjury as to materiality and
willfulness, but it also requires that a false statement be provided “under
penalty of perjury” in circumstances “permitted by law.” Id.; see also
Rivera, 816 F.3d at 1072. 12
Because a person who violates section 118(a) must make a material
false statement knowingly or willfully while under oath or affirmation
where an oath is authorized or required by law, the elements of the
respondent’s State statute of conviction match those of the generic
definition of perjury. 13 The California statute substantially emulates the
Federal crime of perjury proscribed by 18 U.S.C. § 1621, which has its
roots in common law and is generally accepted as the acknowledged
definition of perjury. 14 See Dunnigan, 507 U.S. at 94. We therefore infer
that Congress intended a conviction under section 118(a) of the California
Penal Code to categorically fall within the generic definition of an offense
12

In Rivera, 816 F.3d at 1075, the Ninth Circuit held that a violation of section 118(a) of
the California Penal Code is not categorically a crime involving moral turpitude, contrary
to our determination in Matter of Martinez-Recinos, 23 I&N Dec. at 178. The court
found that section 118(a) does not require an intent to defraud and encompasses conduct
that is not base, vile, or depraved. However, those findings are not relevant to whether
the offense is an aggravated felony. Therefore, the court’s conclusion in this regard is not
dispositive of whether a violation of section 118(a) is categorically an offense related to
perjury under section 101(a)(43)(S) of the Act. See Matter of Abdelghany, 26 I&N Dec.
254, 262–63 (BIA 2014) (noting that an offense that renders an alien deportable as an
aggravated felon may not render him or her inadmissible as an alien convicted of a crime
involving moral turpitude).
13
As noted, the generic definition of perjury incorporates both written and oral perjury.
It therefore covers State statutes, like section 118(a) of the California Penal Code, that
criminalize written perjury provided “under penalty of perjury.” See Rivera, 816 F.3d at
1072 (stating that “written perjury, by contrast, requires only that the false statement be in
writing under penalty of perjury”).
14
While we agree with the Ninth Circuit that section 118(a) of the California Penal Code
is broader than the common law definition of perjury, our aggravated felony analysis
concerns the generic definition of the offense based on the commonly understood
meaning of perjury at the time section 101(a)(43)(S) was enacted, which may diverge
from the common law. See Rivera, 816 F.3d at 1074; see also Taylor, 495 U.S. at 594
(declining “to follow any rule that a statutory term is to be given its common-law
meaning, when that meaning is obsolete or inconsistent with the statute’s purpose”);
Perrin, 444 U.S. at 48–49.

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“relating to . . . perjury” when it enacted section 101(a)(43)(S) of the Act.15
Given that the respondent pled guilty to an offense relating to the generic
definition of perjury and was sentenced to more than 1 year of
imprisonment, his conviction is categorically for an aggravated felony
under section 101(a)(43)(S) of the Act.

III. CONCLUSION
We conclude that the crime of perjury in violation of section 118(a) of
the California Penal Code is categorically an offense relating to perjury
under section 101(a)(43)(S) of the Act. It is therefore an aggravated felony
that renders the respondent ineligible for the relief he seeks. Accordingly,
the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

15

The respondent argues on remand that section 118(a) of the California Penal Code is
not a categorical match to 18 U.S.C. § 1621 because the Federal statute includes as an
element “subscribing or having a legal document subscribed.” The respondent also states
that § 1621 can be violated when a person “does not believe a statement is true,” while
section 118(a) requires that the person state as true a matter that “he knows to be false.”
We need not decide whether these distinctions are meaningful because both of the
respondent’s assertions contemplate that the Federal statute is broader than the California
statute. Thus, they do not persuade us to alter our conclusion that all conduct punishable
under the California statute falls within the Federal definition of perjury. See Mathis
v. United States, 136 S. Ct. 2243, 2257 (2016) (stating that a crime of conviction is
regarded as a categorical match if its elements are “the same as, or narrower than, the
relevant generic offense” (emphasis added)).

903


Interim Decision #1976

MATTER OF IBARRA
In Section 212 (e) Proceedings
A-14673457
Decided by Acting Regional Commissioner May 1, 1968
"Exceptional hardship" within the meaning of section 212 (e) of the Immigration and Nationality Act, as amended, is established by an exchange visitor whose United States citizen wife is expecting the birth of a child in
approximately 4 months, has established that residence in the Philippines
would be detrimental to her health, and departure from the United States
would disrupt her education and future plans for a career.
ON BEHALF OF APPLICANT:

Norman Stiller, Esquire
995 Market Street, Suite 1018
San Francisco, California 94103

This case comes before the Regional Commissioner on appeal
from the decision of the District Director, San Francisco, who on
February 20, 1969 denied the application in that it had not been
established that compliance with the two year foreign residence requirement of section 212(e) of the Immigration and Nationality
-

Act, as amended, 'would impose exceptional hardship on the applicant's United States citizen wife.
Oral argument was requested and granted. Counsel appeared
for such argument as scheduled.
The applicant is a 27-year-old, married male, a native and citizen of the Philippines who was admitted to the United States as
an exchange visitor under section 101 (a) (15) (3) of the Act on
August 31, 1963 destined to the University of Kansas to participate in exchange program P.I.-99 as a graduate student In electrical engineering. In January 1964 he transferred to the University of California at Berkeley to participate in exchange program
P.I.

352 sponsored by the University of California, as a

-

research assistant and graduate student. He received extensions
of stay as an exchange student to April 1, 1969, He was awarded
a Master's degree in engineering in June 1965 and a doctorate in
engineering in September 1967 which was followed by eighteen

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months practical training.
has never participated in a program sponsored by the United States government. He is presently
employed as an acting assistant professor and assistant research
engineer in the Department of Electrical Engineering and Computer Services of the University of California at an annual salary
of $9,684 and $1,000 a month during the summer months.
He married a native-born citizen of the United States on September 14, 1968. He is the beneficiary of an approved petition
under section 201(b) of the Act as the spouse of a United States
citizen. He filed the present application for waiver of the twoyear foreign residence requirement of section 212 (e) of the Act
on January 2, 1969.
The applicant alleges that his field of work in electrical engineering—Automata Theory—is specialized and would not be
available in the Philippines and that he would be unable to utilize
his specialized skills in the Philippines whereas in the United

States his skills are in demand. Counsel on appeal points out that
if the applicant is required to depart from the United States his
limited earnings in the Philippines would be insufficient to support himself in the Philippines and his wife in the United States.
The applicant's United States citizen wife alleges that residence in the Philippines would be detrimental to her health. She
had spent a short vacation in the Philippines in the Summer of
1967 and developed allergies and a rash from the insect Iife and
hot weather conditions which resulted in fever and swollen limbs.
On appeal applicant presented letters from a doctor in the Philippines and a doctor in the United States which substantiate the
claims of health and medical problems experienced by the applicant's wife in the Philippines. These letters state that return to
the Philippines would be detrimental to her health.
On appeal counsel also presented evidence that the applicant's
wife on March 22, 1969 completed her studies for a Bachelor of
Science degree in Biological Sciences and had registered with the
California State Department of Public Health as a clinical laboratory technologist trainee. This training is generally of a year's
duration and is required to qualify as a clinical laboratory technologist. The applicant's wife states that her departure from the
United States would disrupt her education and future plans for a
career in her field of work and that if she remained in the United

States while her husband departed he would be unable to contribute to her support in the United States and she would have to
seek employment to support herself and would be unable to proceed with her clinical training.
278

Interim Decision #1976
In the Matter of Chong 12 I. & N. Dec. 798, it is held that exceptional hardship is established where departure from the
United States "would disrupt and, indefinitely postpone" the education of the citizen spouse preparatory to teaching at the college
level.
She also stated (supported by letter from a doctor) that she expects a child in August and is fearful that medical services in the
Philippines are inferior to such services in the United States and
that living conditions in the Philippines would be detrimental to a
new-born child.
In view of the foregoing, it has been determined that the applicant's compliance with the foreign residence requirement of section 212 (e) of the Act would impose exceptional hardship upon
his United States citizen spouse. The case will therefore be remanded to the District Director, San Francisco, to prepare an appropriate letter for submission to the Chief, Facilitative Services
Division, Bureau of Educational and Cultural Affairs, Department of State requesting a recommendation from the Secretary
of State.
ORDER: It is ordered that the case be remanded to the District Director for appropriate action in accord with the foregoing.

279


MATFER OF L

Tn D r91POR.T A TION Proceedings

A-7205158
Decided by Board February 24, 1959
Citizenship—Section 321(a) of 1952 act—Acquisition by illegitimate child on
effective date of Immigration and Nationality Act.
Illegitimate child whose mother was naturalized while he was under 16 years
of age, who was still under 16 on the effective date of the Immigration and
Nationality Act and on that date was residing in the United States pursuant

to a lawful admission for permanent residence, is held to have acquired
United Nuites citizenship under section 351(a) or the loal act. tut. matter
of L—, 7 I. & N. Dec. 512, and Matter of T—, 7 I. & N. Dec. 879.)
CHARGE:

Order : Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11)1—Convicted
of violation of law relating to narcotics, namely, possession of
narcotic drug.

BEFORE THE BOARD

Discussion: This case is before the Board on certification by the
special inquiry officer from his order of October Oa, 1958, folding

respondent to be an alien and ordering his deportation from the
United States. The special inquiry officer certified the case to the
Board in order that we might consider the applicability of precedents considered by him to be binding, and the interpretation of
section 321 of the Immigration and Nationality Act as it applies
to this case.
Respondent was born in Jamaica on September 21, 1938, the illegitimate child of T--L---B
. He was lawfully admitted
to the United States for permanent residence June 2, 1949, when
he was 10 years of age. His mother was naturalized by the United
States District Court for the Southern District of New York on
December 12, 1949, when respondent was 11 years of age.
Respondent is found by the special inquiry officer to be an alien
and national of Great Britain. He was convicted on June 23,
1958, at Special Sessions Court, Manhattan, New York, for possession of a narcotic drug in violation of section 3305 of the New
York Public Health Law. If he is an alien, he is deportable on
272

the charge stated in the order to show cause. It is contended for
respondent that the passage of section 321 of the Immigration and
Nationality Act bestowed United States citizenship upon him as a
derivative, resulting from his mother's naturalization in 1940, and

from the fact that he was under 16 years of age when the act became effective on December 24, 1952.
The special inquiry officer accurately states that there is no doubt
that under the law in effect at the time respondent entered the United
States and at the time of his mother's naturalization, section 314
of the Nationality Act of 1940, 8 U.S.C. 714, as an illegitimate child
he could not derive United States citizenship through the naturalization of his mother (Espindola v. Barber, 152 F. Supp. 829 (N.D.
Calif., 1957)). The special inquiry officer also discusses Matter of
L ,7 1. & N. Dec. 512 (Reg. Commr., July 2, 1957), and Matter
of T—, 7 I. & N. Dec. 679 (Reg. Commr., March 6, 1958, appvd.
by Ass't. Commr.). Each of these cases concerns an illegitimate
child born abroad who entered the United States legally for permanent residence. The mothers were all naturalized, and the question in each case was whether or not the illegitimate child derived
citizenship through the naturalization of the mnther,

Espindola v. Barber, supra, concerned the citizenship of one who
was born in Mexico on October 22, 1935, and entered the United
States September 4, 1943. His mother was naturalized on March 7,
1950. Espindola was 17 years of age when the 1952 act became
effective. The court found that he was not a citizen, stating (1)
that an illegitimate child could not acquire citizenship from the
naturalization of either his father or mother under the 1940 act,
and (2) that he could not acquire citizenship under section 321(a)
of the Immigration and Nationality Act, which does not have retroactive effect because of the savings clause, section 405.
In Matter of L—, supra, the child was born in Martinique on
April 1, 1938. His mother was naturalized on November 20, 1951.
L was 14 years of age when the Immigration and Nationality
Act became effective. He entered the United States on December 4,
1953 (15 years of age at entry). It was found that L— was a
United States citizen, because the "last material condition"—his
entry into the United States—was met by L— after 1952 and
while he was still under 16 years of age.
Matter of T
, aapra, concerned an illegitimate daughter born
in Germany on December 23, 1939. She entered the United States
with her mother on January 2, 1918, at eight years of age. Her
mother was naturalized on November 2, 1952, when T— was 12
years old. T went to Japan on June 27, 1953, with her mother
and stepfather and reentered the United States on August 1, 1955,
when she was 151/2 years old. T— was 13 when the Immigration
273

and Nationality Act became effective. It was held that she had acquired derivative citizenship based on her second entry, which occurred after the act became effective and while she was still under
16 years of age.
, supra, that an analysis of section
It is stated in Matter of L
321 of the act reveals the following basic requirements : (1) that
the parent or parents be naturalized; (2) that such naturalization
takes place while the child is under the age of 16 years; and (3)
that the eland takes up lawful permanent residence in the United
States before reaching the age of 16 years. The decision continues
by stating, "In administering various sections of law relating to
derivation of citizenship, the Service has taken the position that the
law in effect when the last material condition is met is controlling.
It is not giving a retrospective construction to the 1952 act to consider it as applicable to a case where one of the requirements is
satisfied after the effective date of that act."
The special inquiry officer stated that if it were not that he felt
himself bound by the Espinelola decision, he would hold that respondent, derived citieenship upon. the enactuteot of the 1052 act on
a theory, in part at least, that the "last material condition" necessary
to bring into being the applicant's citizenship, referred to in Matter
of I

, supra could he the enactment of the 1930 act_ Tt seems

apparent to us that all the material conditions had not been met
when the act became effective, because respondent was still under
the age of 16. Therefore, he was not foreclosed from derivative
citizenship at that time. It was not necessarily the passage of the
act which was the last material condition, but the fact that No. 2
of the three material conditions is an "open condition," a continuing
situation, permitting the statute to bestow citizenship on respondent
so long as he was still under the age of 16 when the law was
passed. Espindola is not a binding precedent in the present situation, because Espindola was past 16 when the 1952 act became
effective and clearly could not have brought himself within the terms
of section 321.
The savings clause of the Immigration and Nationality Act
provides :
see. 405. (a) Nothing contained In this Act, unless otherwise specifically
provided therein, shall be construed to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any elates, condition, right
in process of acquisition, act, thing, liability, obligation, or matter, civil or
criminal, done or existing, at the time this Act shall take effect * * * (Emphasis supplied.)

It is true that respondent had the status of condition of an alien
not eligible to claim derivative citizenship prior to the passage of
this act, but in our opinion section 321(a) (5) clearly changed his
status and condition inasmuch as he was an illegitimate child under
274

the age of 16 years "residing in the United States pursuant to a
lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause * * (2) or (3)
of this subsection *." The act by lie terns thus confers citizenship on this alien. He did not have to "begin to reside permanently
in the United States" following the effective date of the act, because
he was already here and that satisfied the first condition of section
321(a) (5).
To recapitulate: We hold that under the provisions of section
821(e) of the. Tremigration and Nationality Act respondent acquired
United States citizenship at the time the Immigration and Nationality Act became effective on December 24, 1952, inasmuch as he was
an illegitimate child born outside the United States of alien parents,
whose mother was naturalized, whose paternity has not been established by legitimation, who was residing in the United States pursuant to a lawful admission for permanent residence at the time of
the naturalization of his mother, whose mother was naturalized while
he was still under the age of 16 years, and who was still under the
age of 16 years at the time of the effective date of the Immigration and Nationality Act,
Order: It is ordered that respondent is found to be a United
States citizen and that the proceeding be terminated.

275


Interim Decision 401432

blikTrEn or FAntsr

•

In Section 341 Proceedings
A-13793203
Decided by District Director February 19, 1966

Approved by Assistant Commissioner
The retention provisions of section 301(b), Immigration and Nationality Act,
requiring continuous physical presence in the United States for at least is
years between the ages of 14 and 28, are fully satisfied by a combination of
constructive and actual physical presence in the United States for the requisite period prior to age 28, no physical presence beyond that age being
obligatory under said section.

Discussion: The subject has applied for a certificate of citizenship,
claiming to have acquired citizenship at birth in Canada on July 25,
1935, through a citizen father and an alien mother.
The pertinent statute in effect when the applicant was born was
section 1993, Revised Statutes, as amended by the Act of May 24,
1934, providing that any child hereafter born out of the limits and
jurisdiction of the United States, whose father or mother, or both, at
the time of the birth of such child, is a citizen of the United States,
is declared to be a citizen of the United States,. but the right bf
citizenship shall not descend to any such child unless the citizen
father or citizen mother, as the case may be, has resided in the
United States' previous to -the birth of such child. In cases where
one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein
for at least five years continuously immediately previous to his
eighteenth birthday.
The latter part of this section concerning retention of citizenship
was changed by the provision of section 201(g) of the Nationality
Act of 1940 (54 Stat. 1138-39), effective January 13,1941, and these
in turn were affected by section 301(b) and (c) of the Immigration
and Nationality Act, effective December 24, 1952 (8 'U.S.C. 1401),
quoted below:
•

Any person who is a national and citizen of the United States at birth under
paragraph (1) of subsection (a), shall lose his nationality and citizenship

51

Interim Decision #1432
'unless he shall come to the United States prior to attaining the age of
twenty-three years and shall immediately following any such coming.be con, tinuously physically present in the United States for at least Sire . years :
Provided, That such physical presence follows the attainment of the age of
fourteen years and precedes the age of twenty-eight years.
Subsection (b) shall apply to a person born abroad subsequent to May 24,
1934: Provided, however, That nothing contained in this subsection shall be
construed to alter or affect the citizenship of any person born abroad —subsequent to May 24, 1934, who, prior to the effective date of the Act, has taken
'up a residence in the United States before attaining the age of sixteengears,
and thereafter, whether before or after the effective date of this Act, complies
or shall comply with the residence requirement for retention of citizenship
specified in suboection (g) and (Ii) of motion 201 of the Nationality Act of
1940. as amended. .."
. The applicant's father vas born in Woonsocket, Rhode Island,
- on July 23, 1909. He was..taken to Canada by his parents in 1915.
The applicant's parents were married in Canada on April 6, 1932,
and he is the legitimate issue of that marriage. His mother was a
-`
'native and still is a citizen of Canada.
The father has testified that he has voted in Canada since 1945.

The record indicates, however, that he was a citizen of the United
•States- on the date of applicant's birth. The applicant= testified that
he, hinigelf, also voted,in Canada in 1954. This was before he knew
that he might be a citizen of the United States due to his father's
birth in the United States: It is the Service position that a United
States ,citizen who performs an act of an expatriating'nature without
knowledge that he had: ever enquired United States citizenship does
not thereby • expatriate himself (Bogen v. Patokoaki, 271 F.2d- 858
. (1959).;- Matter of C—A—, 9 I. & N. Dec..482 (1961) ; Matter of

p-s-, 9 I. & N. Dee, 67.0 (1962)).

The applicant had no knowledge of his- possible claim to citizenship until he applied for an immigrant -visa •at7-the American Consulate in- Montreal, Canada, on February 26, 1963. On the basis 6f
the. Attorney General's opinion of May 24, 1962, Matter of C—B(ettprrs), it was concluded that he might properly be issued limited
dbcumentation as a United States citizen valid for a period to enable
him to proceed to the United States. The record discloses that the
applicant did enter the United States on March 23, 1963, in possession of a United States citizen's identity card. At that time he was
twenty-seven years of age and had never previously been in the
United States.
It has been held in Matter of Tame-Carr1116, (Int. Dec. No. 1302,
. August 29, 1963) that the retention requirement of section 301(b),
Immigration and Nationality Act, requiring continuous physical
presence in the United States for at least five years between the ages
52

Interim Decision #1432
of fourteen" and twenty-eight, does not operate to deprive an individual of United States citizenship until he has had a reasonable
opportunity to come to the United States as a United States citizen
after leaining of such claim to citizenship. It is concluded that the
applicant's arrival was timely.
Subsequent to the applicant's initial entry on .March 23, 1963, he
has returned to Canada on several occasions. He went to Canada on
August 3, 1963, and returned to the United States on August 5, 1963;
for three days in November 1963; two weeks in December 1963 and
from March 28, 1964, to March 31, 1964. These trips were after the
applicant's twenty-eighth birthday..
Constructive residence and physical presence in the United States
are concepts regularly given effect in the field of immigration and
nationality law Thus, in the Matter of L—B—D—, (4 I. & N. Dec.
639 (1052) ), in considering the question of whether United States
citizenship was retained under a statute -which required the child to
take up residence in the United States before sixteen years of age,
the Attorney General ruled that the retention requirements were
satisfied although factually residence was not taken up until after
that age because of conditions beyond the control of the child.
In. two other cases (Matter of &-, 8 I. & N. Dec. 221, and.Matter
of 8—, 8 1 & N. Dec. 226 (1958)), the Board of Immigration Appeals had under consideration section 301 (b) , the identical section of
law involved in the present case. In -those two cases, factually the
coming to the United States and consequently the beginning of
physical presence in this country were not in sufficient time to permit
a full five-years' presence to accumulate before twenty-eight years of
age. The Board, nevertheless, concluded that the applicants were
to be regarded as having constructively complied with the provisions
" of section 301(b). Similarly, in Matter of S—, Int. Dec. No. 1252
(1962), subject's absence abroad in the United States Armed Forces
during the period of physical presence required by section 801(b)
was regarded as constructive physical presence in the United States
within the meaning of that section. The conclusions in these cases
were based on. the fact that failure to comply was due to circumstances beyond the control of the persons involved. In such cases it
is equitable not to penalize individuals for circumstances beyond
their control. Such a situation would also exist when the failure to
come to the United States is due to ignorance of a claim to citizenship. In the instant ease, it is concluded that the concept of constructive physical presence is also applicable in accordance with the
principle of law that no conduct results in expatriation unless it is
engaged in voluntarily (117451tikawa v. Duties, 356 U.S. 129 (1958) ). .
53

Interim Decision #1432
Although the above cases establish the principle of constructive
physical presence, and regard the commencement thereof after age 23
as timely under appropriate circumstances, they are silent with respect to the physical presence requirement subsequent to such a

person's arrival in this country. It remains, therefore, to be determined how such retention provisions apply to one who is regarded as
having been constructively physically present for a Portion of the
required five-year period.
The word "constructive" has been defined as "That which is
established by the mind of the law in its act of construing facts
* * * i that which has not the character assigned to it in its own
essential nature, but acquires such character in consequence of the
way in which it is regarded by a rule or policy of law; hence,
inferred, implied, made out by legal interpretation." Black's Law
Dictionary, 3rd Ed., p. 413.
In this posture, the applicant is regarded, in law, as having been
physically present in the United States from a data immediately
prior to his 23rd birthday to March 23, 1963, the date upon which

he came to the United States.. He was factually physically present
from that date until July 25, 1963, hii28th birthday. Section 301(b)
requires only that the physical presence be between the ages of 14
and 28 years in order that citizenship may be retained. No obligation
beyond the 28th birthday is imposed. Accordingly, it is concluded
that the applicant's constructive physical presence, coupled with his
actual physical presence, amounted to a. full compliance with the
retention requirements of section 301(b). Having fulfilled the requirements of that statute between his 23rd and 28th birthday, he
had no further obligation thereunder and was relieved of any
further obligation to retain citizenship.

ORDER: It is ordered that the application for a certificate of
citizenship be and the same is hereby granted.

54


MATTER OF R—

In DEPORTATION Proceedings
A-7488062
Decided by Board May 20, 1960

Mental

defect—Temporary illness due to wartime experiences.

Service has not sustained burden of proving that alien was afflicted with mental defect (schizophrenia) at time of entry when evidence reasonably supports conclusion that he suffered from temporary illness akin to neurosis
brought on by wartime experiences.
CHARGE'

Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludahle
at entry—Mental defective (section 3, Act of February 5, 1917).
BEFORE THE BOARD

Discussion: This case is before us on appeal from the decision
of the special inquiry officer finding respondent deportable on the
charge stated in the order to show cause. The special inquiry officer
granted respondent voluntary departure with an automatic order of
deportation in the event he fails to depart. Respondent is 29 years
old, a native and formerly a citizen of Poland. His only entry into
the United States was at Boston, Massachusetts, on May 26, 1950,
when he was admitted as an immigrant. The special inquiry officer
states that the sole issue as to deportability is whether respondent
was suffering from a mental defect within the meaning of section 3
of the Immigration Act of February 5, 1917, as amended, at the
time of his entry.
Respondent was born in Poland in 1931 but attended school only
2 years. Following the invasion of Poland by the German Nazis,
his father was killed. According to his testimony, respondent and
his mother hid in the forest, perhaps for 2 years. They were
eventually apprehended, and respondent's mother was sent to Auschwitz concentration camp. Respondent denied that he was Jewish
and was placed in a labor camp by the Nazis. He states that he
worked in an underground factory making airplane parts, that he
worked from early in the morning until night with pt'actically no
food and very harsh treatment. Others in the camp, discovering
646

that he was Jewish, teased him by threatening to expose him, although they never did so. After his liberation by the Allied forces
he was hospitalized for malnutrition, and eventually he was sent to
an orphanage in Italy, where he was discovered by his mother at
the end of 1947.
In 1948 respondent complained of not feeling well and, showing
evidence of emotional distress, he was taken by his mother to the
Clinic for Nervous and Mental Diseases at the University of Rome,
where he was admitted on June 23, 1948. The record contains a
short psychiatric report, in Italian and English, with reference to
his hospitalization there. The only diagnosis in this record is,
"Diagnosis, on first admission, schizophrenic syndrome." Based on
information furnished by respondent's mother, the director of the
clinic states, "As Polish Jew, the patient must have been submitted
to trying times, living away from mother, hiding in forests and
then in a concentration camp * * * Status: Patient in bed, in bad
temper, lucid and well oriented; states that everything is exaggeration on the part of mother and not true. Occasionally shows difficulties in speech." He was given 10 electroshock treatments and
was "dismissed in improved condition" on August 19, 1918.
The record does not show how respondent occupied himself from
the time he was discharged from the hospital in Rome until he
came to the United States in May 1950. He went to Cincinnati,
lived by himself, and was employed until September 1950. The
record shows that he consulted Dr. S B in that city in August 1950. Apparently, respondent consulted Dr. B
only once.
Respondent went to Newark, New Jersey, to join his mother in
September 1950, entered the Newark Central High School and attended briefly. Early in 1951 respondent consulted a doctor at the
Jewish hospital who suggested that, while he did not have to go
into a hospital, by doing so he could get treatment more quickly,
get it over with, and continue his studies. He went into Brooklyn
State Hospital on March 28, 1951, had insulin therapy, and was
approved for discharge on June 19, 1951. The diagnosis at that
institution was "dementia praecox- -catatonic type." The final conference conclusions are that the patient "is now free of delusions
and hallucinations."
The record contains two certifications from the United States
Public Health Service. The first, dated August 1, 1956, certifies
that, based on the 1-234 (Certificate as to Alien Becoming a Public
Charge), and the clinical summary from the Brooklyn State Hospital, in the opinion of two Public Health doctors the alien was
certifiable for "a Class A mental defect, schizoid personality, at the
time of entry into the United States on May 26, 1950," and, "It is
also our opinion that the alien became a. public charge as the result
647

of an affliction with a Class A mental defect, dementia praecox,
catatonic type, not affirmatively shown to have arisen subsequent to
entry on the date stated." At the request of the Immigration and
Naturalization Service, the Public Health doctors reevaluated the
record, including the findings of Drs. B and R the report
from the University of Rome, and the transcript of the testimony
in this case. On October 19, 1059, they altered their certification to
state that it was their opinion that respondent was "certifiable for a
Class A condition, mental defect, schizophrenia, at the time of entry
into the United States on May 26, 1950." There is no "became a
public charge" ground in this case. At no time did the United_
States Public Health Service doctors examine or interview respondent personally.
Since respondent was discharged from the hospital in June 1951,
he has been almost continuously employed at $40 to $65 a week,
primarily doing office work, and, in addition, has been almost continuously going to school. He graduated from high school in 1955
and received a B. A. degree from the Yeshiva University of Brooklyn in 1951. He has also been granted a degree of Bachelor of
Religious Education and a teacher's certificate. He is now teaching
at the Yeshiva University, in addition to continuing his graduate
studies. He has received scholarships from Jewish organizations,
but otherwise has been self-supporting. The record contains letters
and reports from several of respondent's professors, one of whom
teaches psychology at Columbia, as well as at Yeshiva University.
Thoy testify to respondent's excellence as a student, his maturity,
popularity with his classmates, acquired competence in the English
language, his stability and high standards of ethics. The record
also contains recommendations from former employers regarding
his integrity, honesty, ability, and popularity.
The record contains two communications from Dr. B—, exhibits
5 and 14, stating that, on the basis of his interview with respondent
and on the basis of follow-up material supplied since that time, it
is the opinion of Dr. B— that in 1950 respondent was suffering
from anxiety hysteria, resulting from excessive psychological stress
arising from the external environment with which respondent was
attempting to cope. He likened the situation to "combat fatigue"
in war time, stating that "normal healthy men when exposed to
persistent stress of war for prolonged periods" will begin to show
so-called "neurotic" symptoms of behavior. However, as respondent
became more adjusted, familiar with the new language and culture
he demonstrated ability to function well in his social, academic, anC
marital life and is currently performing in college and otherwisf
with the "highest minority of normally functioning people."
Dr. H
R
, whose qualifications as a psychiatrist are con
648

ceded by the special inquiry officer, and who has testified previously
in immigration matters, discussed the nature and treatment of
schizophrenia. The special inquiry officer's decision deals with Dr.
R 's testimony at some length. Dr. R—, in a 7-page singlespaced statement accompanying this appeal, indicates that he feels
strongly that the opinion of the special inquiry officer does not
accurately reflect the substance of his testimony, nor his reasons for
disagreeing with the diagnosis of the Brooklyn State Hospital and
the certifications of the Public Health Service. He declares that
schizophrenia is a basic personality condition which takes long and

intensive treatment, that a small number of electroshocks and a
short period of treatment will never result in improvement in a
case of true schizophrenia. Respondent had less than one month
of hospitalization in Rome, and two and a half months in Brooklyn.
Dr. R— testified that the same is true of insulin treatment, that
discharge after less than 3 months of insulin treatment and hospitalization would not have been sufficient for improvement and
discharge if respondent truly had dementia praecox, schizophrenia
or schizoid personality, all of which mean the same thing. He
states that the Italian dagnosis of "Schizophrenic syndrome" does
not mean the same as schizophrenia, that "syndrome" means "symptoms." He testified that shock treatments, plus psychoanalysis, plus
long hospitalization, plus a protected environment following discharge are all essential to remission of true schizophrenia. Respondent has had none of these prerequisites to cure, It is his
opinion that both in Rome and in Brooklyn respondent was hospitalized because of the economic condition of the family, the fact
that there was no family circle, no warm and comfortable home to
care for respondent while he was being given out-patient treatment.
To bath Dr. B and Dr. P. the most important evidence
which negatives schizophrenia is that, since his discharge from
Brooklyn State Hospital in 1951, respondent has successfully pursued a most strenuous life, attending school, working, teaching, and
is now married.
The text material available to us substantiates the testimony of
Dr. R and the depositions of that witness and Dr. B— regarding the nature and treatment of schizophrenia generally. Encyclopedia Britannica, 1955 Edition, Vol. 20, under the heading
"Schizophrenia," described the four major types and states that
among ether treatments are the insulin and electroshock treatments
and, further, "In many cases, what seems most important is to
provide the patient with an environment in which he is protected
and in which he can work through his periods of confusion and
away from the disturbing influences of his ordinary environment."
Volume 18, the same reference work, under "Psychiatry" devotes
649

considerable discussion to "War Neuroses," describing the - manifestations, causes and treatments presently available and, 'important to
us, states, "A few latently psychotic soldiers develop a full-blown
malignant psychosis such as schizophrenia. Others become tempo -.
rarily psychotic,. with pathological suspiciousness or loss of comprehension of present reality; recovery is rapid on removal to safety.
Very few malignant and permanent psychoses develop. * * * Among
the important causative factors for these neurotic reactions are
(Emphasis supphysical and emotional depletion and fatigue."
plied.)
• Legal Medicine, edited by R. B. II. Gradwohl (Mosby Co., 1051),
is not describing respondent when it states (p. 898), The latent
schizophrenic is an individual in a recession or a prolonged arrested
phase. The latent schizophrenic has a bizarre, unsatisfied, isolated
adjustment to life and may be inadequate to maintain his economic
independence unless his position in life has 'unusual protective features. Schizophrenics suffer from eccentricities, from inability to
understand the people about them, and from queer notions about
the significance of social values and customs. As they feel isolated,
they are hostile, suspicious, and insecure, finding their way into
weak passivity or dangerous aggressiveness and poorly controlled
hates."
.Fundamental Psychiatry, Cavanagh and McGolderick (Bruce,
1954) .(p. 328), declares that certain prognosis for the schizoPhrenias is impossible. Discussing the matter of treatment of
patients who have suffered schizophrenic episodes, this work stresses
that the schizophrenic will remain in his world of images and complexes so long as he finds them more pleasant than he does the
world of reality, and that it must be realized that the process of
recovery will be slow, and that psychotherapy is absolutely essential.
Psychiatry and Law, Guttmacher and WeihOfen (Norton and Co.,
1952) (pp. 72-80), stresses the "malignancy and chronicity" of this
psychosis and states, "There is probably no .problem in modern
pathology, except that of cancer, on which there has been so much
work with so little in the way of concrete results." Following a
discussion of the symptoms, treatments, and theory, this work also
mentions the war neuroses (p. 78) : "A very interesting group of
psychoses occurred during the war, most of them in combat soldiers.
These were short-lived psychotic illnesses which cleared up abruptly
after two or three weeks' hospitalization. Most of the symptoms
were typical of schizophrenia." These authorities and others persuade us that respondent, who has sought, and been successful in
a most strenuous and outgoing life, could not have suffered fron
true schizophrenia.
The legislative history of the 1952 act does not, in our opinion
650

indicate a Congressional intention to exclude such a person as respondent, or congressional understanding that a person such as he
would have been excluded in the past. The Public Health Service
report on the medical aspects of H.R. 2379, House Report No. 1365,
82d Gong., 2d Sess. (February 14, 1952, pp. 47 48) states:
Mental defect.—The utilization of the term "mental defect" serves a very
useful purpose and should be continued within the language of the bill. It
should be pointed out that in using this expression, "mental defect," it has or
bears no relationship to mental deficiency whiCh is related to the intellectual
status of the individual. * * Such a term could also be used to cover the
more severely disabling neuroses and conduct and habit disorders of adults
and children. It can be used in classifying those persons who are likely to be
brought into repeated conflict with social customs, authority, or society in
general. * * *

House Report No. 1365 also states (pp. 46-47) :
Psychopathic personality— * * * The conditions classified within the group
of psychopathic personalities are, in effect, disorders of the personality. They
are characterized by developmental defects or pathological trends in the personality structure manifest by lifelong patterns of action or behavior, rather
than by mental or emotional symptoms. Individuals with such a disorder may
manifest a disturbance of intrinsic personality patterns, exaggerated personality trends, or are persons ill primarily in terms cf society and the prevailing
culture. The latter or sociopathic reactions are frequently symptomatic of a
severe underlying neurosis or psychosis and frequently include those groups of
individuals suffering from addiction or sexual deviation. * * *

Senate Report No. 1515, 81st Congress, 2d Session (April 20,
1950), also indicates an intention to exclude aliens who are definitely
mentally ill. There is no discussion of the term "mental defect,"
but with reference to the exclusion of persons with "constitutional
psychopathic inferiority," this report. says (p. 343) that the exclusion of persons within the meaning of that term was "aimed at
keeping out of the country aliens with a propensity to mental
aberration, tlioSe with an inherent likelihood of becoming mental

cases, as indicated by their case history. * * * (p. 345) The present
clauses excluding mentally and physically defective aliens, with

three exceptions, are sufficiently broad to provide adequate protection to the population of the United States, without being unduly
harsh or restrictive."
The Manual for Medical Examination of Aliens, United States
Public Health Service, makes it clear that a person is not to be
certified as afflicted with a "mental defect" unless he is seriously
ill or if his difficulty is only temporary. This instructive handbook provides, chapter 6, section A:
4. Insanity. *

* d. Not all persons who meet the aforementioned criteria

are certifiable as insane, for section

04.7

of the regulation:5. (chapter 1) states

"that a class A certificate or class A notification of a mental defect, disease,
1

The reference is to 42 CFR 34.7, which embodies this directive.

051

or disability shall in no case be issued with respect to an alien having only
mental shortcomings due to ignorance, or suffering only from a mental condition (i) attributable to remedial physical causes or (ii) of a temporary nature, caused by a toxin, drug, or disease." This implies those acute brain
syndromes resulting from poison, systemic Infection, exhaustion, or malnutrition. It must be borne in mind that this does not conflict with the requirement that a class A certificate shall be issued for narcotic drug addiction or
for excludable mental disorders existing in the case of addiction to other drugs.
10. Mental defect.—a. Under this term is classified any mental disease not
discussed above which when it seriously impairs the mental function of the
alien and gravely interfers with his total behavior and interpersonal relations is to be regarded as excludable. * * *
b. The determination of the existence of a serious degree of mental abnormal'ty must be left to the examining physician, but several criteria are given
below as an aid to him in exercising his professional judgment: (1) whether
the mental defect is of an hereditary nature; (2) whether it would require
hospitalization; (3) whether the individual's behavior resulting from the defect is such as to be likely to bring him lute repeated conflict with social
customs, constituted authority, or the social environment.
e. Individuals suffering from psychoneurosis are certifiable for mental defect only upon determination of a serious degree of mental illness in accordance with the criteria outlined above. J.Emphask supplied throughout.)

In addition to the above directions, Section B of the Manual,
Types of Certificates in Various Diagnostic Categories, page 6 15,
lists "Transient Situational Personality Disorders, gross stress reaction," with the symbol "K," for which the directions are, "Do not
certify." It seems clear that the regulationo adequately cover the
instant case, and that they do not contemplate that a person such
as respondent should be deported on the charge laid here.
Respondent's brief on appeal cites four cases, all unreported, in
each of which the Board found that the Immigration Service had
not met the burden of establishing that the mental illness existed at
time of entry. In a number of cases, unreported, the Board has
invoked 42 CFR 31.7 and found that temporary conditions (e.g.,
injuries, post-partem psychoses, illnesses due to surgery and glandular conditions, etc.) do not constitute insanity or mental defects for
immigration purposes. The only reported Board decisions on this
subject are Matter of W , 2 I. & N. Dec. 68; Matter of S—,
5 I. & N. Dec. 682, similar to the instant proceeding; and Matter of
V , 2 1. & N. Dec. 127, where the order of exclusion was affirmed.
In the instant case, we have conflicting evidence and medical
diagnoses as to whether respondent' was ail icted with a mental defect at the time of his last entry. Since the question arises in
deportation, as distinguished from exclusion proceedings, the Board
is required to evaluate all the evidence of record, including the
certificates of the United States Public Health Serivce and the
-

652

evidence submitted by respondent, in order to determine whether the
charge is sustained. United States ex rel. Johnson v. Shaughnessy,
336 U.S. 806 (1949) ; United States ex rel. Leon v. Murff, 250 F.2d
436 (C.A. 2, 1957).
Although there is nothing in the record one way or the other, we
must assume that respondent was thoroughly examined in Italy,
both mentally and physically, before he was issued an immigration

visa for entry into the United States for permanent residence. The
only evidence of mental illness prior to respondent's entry into the
United States is the less than 2 months in the hospital in Rome,
where his diagnosis on admission was "schizophrenic syndrome,"
and there was no further diagnosis at the time of dismissal. In
addition, we have the two certifications of the United States Public
Health Service, exhibits 3 and 13, based, not on personal examination of the alien, but on other documents (of record here) submitted
for their opinion, and a clinical summary and certification as to
alien's becoming a public charge from the Brooklyn State Hospital,
Brooklyn, New York, both documents created at the time of his
second illness. On the other hand, the alien has offered medical
testimony of two psychiatrists who examined him personally, one
in 1950 before the second period of illness, and the other who has

seen him recently and over a period of the last several years. Both
agree that he is not schizophrenic, that he did not have schizophrenia, that his illness were akin to war neurosis, brought on not
only by his war experiences, but by his efforts to adjust while still
in his "teens," alone and unaided, to life in two foreign countries,
Italy and the United States, in rapid succession, neither of whose
languages he. knew.
So far as this record shows, the alien has made a successful adjustment to life in the United States, having obtained two college
degrees within the past 9 years while he was learning the English
language. He is married, and has been and is self-supporting. A
large body of psychiatric writing indicates that if respondent had
been suffering from schizophrenia he could not, following brief
periods of hospitalization and treatment, have again emerged into
a. new and highly competitive society and fended for himself under
the most strenuous conditions.
It seems reasonable enough from the medical testimony offered by
respondent, and confirmed by other authorities available to us, and
even more so by respondent's performance during the past 9 years,
that his was a temporary disability due to exhaustion and malnutrition, and was a transient stress reaction to the difficult circumstances
of the previous 10 years and the immediate situation in which he
found himself at the time. His illness was not a mental defect of
an hereditary nature ; it has not brought him into "repeated conflict
653

with social customs, constituted authority, or the social environment;
and there is even some question that he could be said to have "required hospitalization." Diagnosis as to the course of respondent's
illness would have been difficult in 1951, as paragraph 4e of the
Manual for Medical Examination of Aliens (Chapter 6, Section 4,
p. 6 4) points out, but it is easy enough now to say that it was due
to remediable physical causes, and this is our conclusion.
The Immigration Service has not sustained the burden of proving
that respondent was excludable at the time of his entry as a person
a L ed with a mental defect, to wit ; schizophrenia. The proceedings will be terminated.
Order : It is ordered that the proceedings be and are hereby
terminated.

654