Interim Decision #1808

MATTER OF PAMPA

In Visa Petition Proceedings
A-13077280

Decided by District Director November

9, 1967

Where petitioner, a naturalized U.S. citizen. publicly acknowledged the beneficiary, who was born out of wedlock in the Philippine Islands, as his child;
in 1951 received him as sack (with 'the consent of his wife) into his family in
the Philippines; and otherwise treated him as if he were a legitimate child,
beneficiary's legitimation under section 230 of the Civil Code of California.
the gate of current residence and domicile of petitioner, was effected in 1951
when he was 11 years of age, notwithstanding the legitimating events occurred
outside the State of California and prior to petitioner's acquisition of residence or domicile in that State. Bence, beneficiary comes within the purview
of section 101(b) (1) (C), Immigration and Nationality Act, as amended, and
is entitled to preference classification under section 203(a) (1) of the Act, as
amended, as the unmarried son of the U.S. citizen petitioner.
IN BEHALF OF Pk.A.tilowsa: Hiram W. Ewan, Esquire
1011 North Broadway, Suite 203
Los Angeles, California 90012

The petitioner, a native of the Philippine Islands, a naturalized
citizen of the United States, 47 years of age, male, seeks preference

quota status in behalf of the beneficiary for classification under section 203(a) (1) of the Immigration and Nationality Act, as amended,
as his unmarried son. The beneficiary is a native and citizen of the
Republic of the Philippines, unmarried, 26 years old, born out of wedlock to one Carmen Bangs, a native and citizen of the Philippines.
The petitioner alleges he is the natural father of the beneficiary and
claims legitimation of the beneficiary under the provisions of section
230 of the California Civil Code.
The petitioner does not claim that the beneficiary was legitimated
under the laws of the Republic of the Philippines nor does the record
so indicate.

The petitioner has not supported his petition with a judgment of
legitimation pursuant to section 230 of the California Civil Code by
a competent court, but no such judgment is a requisite to a finding
that legitimation has occurred under that statute.
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Interim Decision #1808
Section 230 of the California Civil Code, which has been construed
as an out-and-out statute of legitmation (Ballantins v. De Silva, 226
F.2d 623, 632 (9th Cir., 1955, affirmed 351 U.S. 570, rehearing denied,
352 U.S. 907), provides: "The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were his legitimate child, thereby adopts it as such; and
such child is thereupon deemed for all purposes legitimate from the
time of its birth".
The petitioner has stated under oath that the birth of the beneficiary
was registered by his (petitioner's) father as the child of the petitioner, which was done as he directed because the petitioner was at
that time in the Philippine Army and unable to personally register
the birth. Evidence has been presented that all records of birth, marriage and death, pertaining to the years prior to the outbreak of
World War. H were destroyed during the Japanese military occupation in the city and province of Cebu, Republic of the Philippines.
The certification of the record of the birth of the beneficiary cannot
therefore be issued. The beneficiary's certificate of baptism, recording
his baptism on May 26, 1910 shows that he is the son of the petitioner,
Getulio Pableo. The beneficiary's school records for the years 1957
through 1961 show him to be enrolled under, the surname of the petitioner, i.e., Pableo. The petitioner claims he has always publicly acknowledged the beneficiary as his son and supported him since his
birth.
Petitioner has testified under oath he was never married to the
mother of the beneficiary although there existed no legal impediment
to their marriage prior to the time of the beneficiary's birth or until
she married another in 1942. The petitioner was married on August 22,
1946 to one Fortunate, Remelesin, a native and citizen of the Philippines. The petitioner was at that time a member of the United States
Army and in 1948 on his assignment to service on Okinawa, he sent
his wife and son of his marriage to reside in his father's home in
Moalboal, Cebu, Philippines. The beneficiary had been living in the
home of the petitioner's father in Moalboal since 1945 as the beneficiary's mother and husband then had other children. The petitioner
testified and his spouse, now a naturalized citizen of the United States,
ander oath confirmed his testimony as did the beneficiary, that his wife
accepted the beneficiary into the family unit, treated him as their own
child and cared for him. On the petitioner's discharge from the United
States Army the petitioner built a home in 1951, at which time the
beneficiary was 11 years of age, in Moalboal in which he, the beneficiary, petitioner's wife and the son of his marriage all resided until
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Interim Decision #1808
the petitioner came to the United States in 1953. Immediately after
coming to the United States in 1953 the petitioner established residence in California in which State he has since continually resided.
The petitioner's wife and son of his marriage joined the petitioner in
the United States in 1955, the beneficiary continuing to reside in the
family home in Moalboal, Philippines and to be supported by the petitioner. The beneficiary entered the United States on October 29, 1963
as a visitor, and has at all times since October 29, 1963 resided in the
petitioner's family home at Delano, California, being accepted into
the home by the petitioner's wife.
The record thus establishes that the petitioner acknowledged the
beneficiary as his child, received him as such and with the consent of
his wife into his family in Moalboal, Philippines in 1951 when the

beneficiary was 11 years of age and otherwise treated him as if he
were a legitimate child both in the Philippines and in the State of
California.
In the case of Estate of Liond (26 C.2d 472; 159 P.2d 643), the Court
concluded that by virtue of the provisions of section 230 of the Civil
Code of California upon facts shown, the petitioner in that case was
entitled to share in the estate of the decedent. Applying the provisions
and effect of section 230 the Court stated in part :
It will be noted that in none of the legitimation provisions of the California law
hereinabove quoted (including section 230) is there 'any express or apparent requirement.that ... the legitimating acts specified in section 230, occur in California. There is no Federal constitutional proscription against a state's adopting
legislation which makes legitimate within the operation of its law children
who are illegitimate in other Jurisdictiona, nor is there any constitutional requirement that such laws be limited in their applicability to children who were
born in the state or whose parents (either or both) were domiciled in the state
at the time of their birth, or that such laws be dependent for operation on
sets occurring within the state.

The Court in that case also stated :
A public, unconditional and long-continued acknowledgement of a child by
his father, with full knowledge of the facts, accompanied by reception by the
child into the family and treatment as a legitimate child, constitutes a continuing representation to the whole world of a permanent de facto family
status, which is the very essence of the requirements of Civil Code section 230,
and while the legal significance of such acts in other states is not binding in
California, they are not revoked and destroyed in their factual significance by a
mere change of domicile; hence, it will be presumed that the family status
thereby established continued after the father moved to California and that
lie did not wrong his son by disavowing such status.

Under the provisions of section 230 of the California Civil Code
it is immaterial that the beneficiary was not born in California or in
the United States, that his natural parents were residing outside the

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Interim Decision #1808
United States at the time of his birth, and that the acts of legitimation
may have occurred outside the United States.
It is conceded that the record establishes the beneficiary has been
legitimated under the provisions of section 230 of the California Civil
Code.
Under the provisions of section 230 of the California Civil Code
as construed by the courts of California, it is immaterial whether
legitimation occurred during the applicant's minority or thereafter
(Estate of Lund, 26 C.2d 472; Wolf v. Gall, 32 Calif. App. 286;
Blythe v. Ayres, 96 Calif. 532 (1892, reheard 102 Calif. 254, 1894) ).
The crux of the matter, in this case, however lies in determining
whether the beneficiary is legitimated for the purpose of the immigration law_ in order to be considered legitimated for immigration
purposes, there must be compilance with the requirements contained
in section 101(b) (1) (C) of the Immigration and Nationality Act, as
amended. That section requires that the legitimation shall have taken
place under the law of the child's residence or domicile or under the
law of the father's residence or domicile, whether in or outside the
United States, while the person legitimated was under the age of 18
years and in legal custody of the legitimating parent or parents at the
time of legitimation.
The facts in this case were submitted to the Attorney General of the
State of California and his opinion requested as to whether the beneficiary has been legitimated under the laws of the State of California
and, if so, the date on which the legitimation is deemed. to have occurred. The Attorney General of the State of California in his reply
opinion stated:
Under the facts given, it appears that the requirement of Civil Code section
230 has been met. The legitimating acts specified in section 230 are not required
to occur in California. _mare Of liana, 2e Ca1.24 472. Iu the leading case of
Blythe V. Ayres, 96 Cal. 532, the court held that section 230 had extra territorial
operation and its effect attaches to a state of facts where the child was never
in California, but resided in a foreign country whenever the question of legitimation presents itself to the court of California and this is so, regardless of the
law of the foreign country.
It would appear that the son was legitimated under California law as early as
1945 when the child lived with petitioner's father, if MS was the petitioner's
domicile. However, there can be no doubt that in 1951 when petitioner established
a home with his wife, son and the beneficiary and they lived as a family unit,
that all of the requirements of Civil Code section 230 bad been met.

The petitioner has established that the legitimation of the beneficiary was accomplished in 1951 when the beneficiary was 11 years of
age and when the petitioner established a home with his wife, son and
the beneficiary and they lived as a family unit, such legitimation being
accomplished under section 230 of the Civil Code of California.
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Interim Decision #1808
The provisions of section 101(b) (1) (C) of the Immigration and
Nationality Act, as amended, have been satisfied.
The visa petition will be approved.
ORDER: It is ordered that the petition be approved for classification of the beneficiary under section 203(a) (1) of the Immigration
and Nationality Act.

507
321-654--69--84


Interim Decision #2480

MATTER OF SAMARIUS INDUSTRIES, INC.

In Visa Petition Proceedings
HAR—N-3684
Decided by Regional Commissioner March 16, 1976
Notwithstanding beneficiary was previously employed by petitioner in the specified position as a permanent employee, and notwithstanding petitioner has an eventual need to
fill the position with apermanent employee, petition to accord beneficiary nonimmigrant
classification as a temporary worker under section 101(a)(15)(11)(ii) of the Immigration
and Nationality Act, as amended, as a stained glass bender and teacher of this art, is
granted since ii. has been established that the beneficiary's services will be temporary in
nature as they will be utilized only to train other workers who will perform this function
permanently and the training duties are not of an on-going nature but of a one year
specified duration.
II BEHALF OF PETITIONER:

Antonio Robaina, Esquire
205 Church Street
New Haven, Connecticut 06510

This matter is before the Regional Commissioner on appeal from the
denial of the petition for the reason that it was not established that the
services to be performed by the beneficiary are temporary.

The petitioner, Samarius Industries, Inc., is engaged in the manufacture of "Tiffany-type" lamps. It presently has 58 employees with an
annual gross income of approximately $1,000,000. The petitioner proposes to employ the beneficiary as a stained glass bender and teacher of
this art for a reriod of one year. The Department of Labor has issued a
certification to the effect that qualified persons to fill this position are
unavailable and made it valid for the period from February 2, 1976 to

December 31, 1976.
The beneficiary is a 48-year-old native and citizen of Ecuador presently residing in Ecuador. The record indicates that the beneficiary,
while in an unlawful status in the United States (of which the petitioner
was unaware), was employed by the petitioner from April 1972 to
December 1975.
On appeal and in oral argument it was urged that the beneficiary's
services are indeed temporary in that the position he will be filling will
be temporary in nature and is not one of production employment which
608

Interim Decision #2480
will be continued through the firm's subsequent operation. The petitioner urges that the beneficiary will be used to train two other employees in the art of stained glass bending. He will initiate training with
one individual upon his arrival in the United States and begin the
training of the second individual approximately two months later. The
petitioner submits that the agreement between it and the beneficiary is
temporary, that the contract entered into on November 25, 1975 contemplates his employment for only one year. The petitioner urges that
because artisans with the required knowledge are limited it is essential
that the beneficiary's services be utilized to train other workers who will
perform this function permanently.
The petitioner assured the training of the United States workers
could be completed in the time requested. They must learn to perform
the following duties:
Knowledge of bending properties of stained glass imported and domestic of all available
colors in regard to temperature and maximum sag. Knowledge of annealing brass.
Program production for maximum efficiency of kiln. Knowledge of necessary controls,
manual and electrical, for temperature of bend and anneal of stained glass. Visually
inspected glass prior to bend, during bend and after bend. Load glass and brass into
molds on continuous chain and unload when completed. Order glass from cutting
department to insure maximum efficiency of kiln. Fuse ceramic paint to clear glass while
bending and cool properly to avoid defects in paint. Maintain stock of annealed brass
band and accessories for other departments. Maintain molds and prepum mold release
chemicals as required. Inspect kiln visually and listen for any problem and resolve any
problems.

In the case at hand the petitioner urges that he his not sought labor
certification in behalf of the beneficiary for a permanent position nor
does he intend to employ the beneficiary on a continuing basis.
It has been held that' to be eligible for admission as a nonimmigrant
under section 101(a)(15)(H)(ii) of the Act the beneficiary must be coming
to the United States to perform duties of a temporary nature as distinguished from work of a continuing or permanent character. In the
Matter of Contopoutos, 10 I. SE N. Dec. 654, it was held that where the
position itself is permanent in nature the grant of nonimmigrant status
under section 101(2)(15)(H)(i1) is precluded notwithstanding the limitation of time placed on the beneficiary's services.
It has been further held in the Matter of University of Oklahoma, 14
I. & N. Dec. 213 that determinations as to whether the beneficiary has a
residence abroad which he has no intention of abandoning or is otherwise a bona fide nonimmigrant are not requisite to approval of an' "H"
classification; rather such determinations are for the consular officer
when the beneficiary applies for his visa abroad and for the immigration
officer when he applies for admission or for a change of nonimmigrant
status pursuant to section 248 of the Immigration and Nationality Act.
After a careful review of the entire record it is concluded that the
609

Interim Decision #2480
petitioner on appeal has credibly established that the position for which
the beneficiary's services are sought is one temporary in nature within
the interpretation of law and rationale of Matter of Contopoulos, supra.
Accordingly, the bases for denial have been overcome and the district
director's decision will, therefore, be reversed and the petition approved.
It is ordered that the appeal be sustained and the petition be approved.

610


Interim Decision #2187

MATTER OF TSANG

In Deportation. Proceedings
A-15999353
Decided by Board February 16, 1973
(1) Where an alien presented no evidence in support of his motion to suppress on
the claim that he had been illegally arrested and that the documents entered
into evidence to establish his deportability were obtained as a result of the
illegal arrest, his motion was properly denied by the special inquiry officer for
lack of justification since on a motion to suppress he has the burden of
establishing prima facie that the evidence was unlawfully obtained.
(2) An alien's refusal to testify regarding his deportability on a claim of selfincrimination is not a factor which should weigh against the exercise of
discretion (voluntary departure, in the instant ease) in his favor. However,
merely because relief may not be denied in the exercise of discretion on the
basis of a self-incrimination claim does not mean that it may not be denied in
the exercise of discretion on some other basis.
CHARGE:

Order: Act of 1952—Section 241(aX2) [8 U.S.C. 1251(a)(2)1—Nonimmigrant
crewman—remained longer.
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:

Peter Zimmerman, Esquire
100 State Street
Roston, Massachusetts 02109
Attorney of Record:
Joseph F. O'Neil, Esquire

The respondent appeals from an order of deportation entered by
the special inquiry officer. The appeal will be dismissed.
The record relates to a male alien of Chinese nationality, 45
years of age. He entered the United States as a nonimmigrant
crewman on September 23, 1968 and deserted his ship at Norfolk,
Virginia on or about October 10, 1968.
Respondent refused to testify regarding his deportability at the
deportation hearing, invoking the privilege against self-incrimination in the Fifth Amendment to the Constitution. He did testify on
behalf of his application for voluntary departure.

As evidence of deportability, his seaman's discharge book was
294

Interim Decision #2187
read into evidence as was his Hong Kong seaman's identity book.
Both show his place of birth as China. Also admitted into evidence
was a certified copy of the arrival-departure record of the crew of
the M/V "Ocean Splendour" which shows respondent's arrival with
and desertion from that ship.
The respondent moved to suppress the introduction of these
documents as eviaence on the ground that he had been illegally

arrested and that the documents were obtained as a result of the
illegal arrest. The respondent submitted no evidence tending to
establish that his arrest was illegal or that any evidence was
unlawfully obtained from him.
On a motion to suppress the defendant has the burden of establishing that the
evidence was unlawfully obtained, United States v. Lyon, 397 F.2d 505 (CA. 7,

1968).

See also Nardone v. United States, 308 U.S. 338 (1939); United
States v. Garcia; 272 F. Supp. 286 (S.D.N.Y., 1967). This rule, which

is applied in criminal cases, has been adopted for use in deportation hearings, Matter of Tang, 13 I. & N. Dec 691 (B IA, 1971).
Therefore,the special inquiry officer correctly denied the respondent's motion to suppress on the ground that the respondent had
presented no justification for his motion.
Furthermore, there is no showing here that any of the documents introduced was obtained either directly or indirectly as a
result of the respondent's arrest. Those particular documents
would normally be independently in the possession of the Immigration, Service. Seaman's books are retained by the carrier and
sent to the Immigration Service upon the desertion of a seaman to
whom they relate. Arrival and departure lists are official records
given to the Immigration and Naturalization Service in the
ordinary course of business by carriers. Thus, competent evidence
which was in possession of the Service, independently of respondent's apprehension, establishes that Hon Kwan Tsang, a Chinese
national, was admitted to the United States as a crewman and
deserted. The documents introduced constitute clear, convincing
and unequivocal evidence of deportability. We do not draw any
inference from respondent's silence.
The special inquiry officer denied voluntary departure as a

matter of discretion because respondent, by asserting the privilege
against self-incrimination and consequently refusing to testify in
regard to deportability, had put the Immigration and Naturalization Service to additional time, trouble and expense in securing
evidence of deportability. The cases have held, however, that
adverse action may not be based on silence under a self-incrimination claim; otherwise the prospect of adverse action would cut
down on the privilege by making its assertion costly, Spevack v.
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Interim Decision #2187
385 U.S. 511 (1967), Griffin v. Calif, 380 U.S. 609 (1965).
Furthermore, the regulations by implication recognize that an
alien who refuses to testify on issues involving deportability may
nevertheless be granted voluntary departure, 8 CFR 242.17(d).
Thus, an alien has the right to refuse to testify with regard to the
matter of his deportability without thereby forfeiting his opportunity to receive voluntary departure.
Of course, merely because relief may not be denied in the
exercise of discretion on the basis of a self-incrimination claim does
not mean that it may not be denied in the exercise of discretion on
some other basis. The alien has the burden to establish eligibility
for voluntary departure, both that he is statutorily eligible and
that he merits the favorable exercise of discretion. The statutory
requirement is five years of good moral character, section 244(e).
The regulations specify the requirement that the alien establish
that he is willing, and has the immediate means with which, to
depart promptly, 8 CFR 244.1.
Whether discretion should be exercised in favor of a particular
alien depends upon the facts of the individual case. In Order to
achieve a measure of uniformity in cases involving applications for
voluntary departure by crewmen, this Board has previously set
forth certain guide lines, Matter of M , 4 I. & N. Dec. 626 (BIA,
1952). Inquiry should be made whether the alien was a bona fide
—

crewman at the time of entry as against one who intended to stay

permanently and used the crewman status merely as a means to
effect entry. Because it is difficult to determine whether a particular alien- was a bona fide crewman or not, we held that a
respondent should usually have been a crewman for at least one
year before being granted voluntary departure, Matter of M ,
supra. If it is clear that at the time of entry a respondent intended
to stay permanently in the United States, normally voluntary
departure should be denied as a matter of discretion, with an
exception in the case of an alien who has served as a crewman for
—

many years. If an alien crewman has been previously granted

voluntary departure, whether he departed pursuant thereto or
failed to avail himself of the privilege, we have held that such is an
adverse factor militating against another grant of voluntary
departure.
We wish to emphasize that while these guide lines should be
considered they do not set forth an invariable rule, Matter of T , 5
I. & N. Dec. 736 (B IA, 1954), and they do not relieve the special
inquiry officer from his duty of exercising the discretion which is
entrusted to him. He should consider all the relevant factors
present in the ease before him and base his decision thereon
accordingly.
—

296

Interim Decision #2187
This record establishes that at the time of entry to the United
States, respondent had been a crewman for about eleven years
(Tr. of hearing, p. 5). Eleven years is a substantial length of time.
The respondent has never previously violated our immigration
laws. This is his first request for voluntary departure. He has the
ability to depart at his own expense and will depart within the
time allotted, according to his testimony. We find that respondent
merits voluntary departure. We do not consider his refusal to
testify regarding his deportability as a factor which should weigh
against the exercise of discretion in his favor.
ORDER: The respondent is granted voluntary departure from
the United States without expense to the Government, to any
country of his choice, within such period of time, in any event not
less than 30 days, and under such conditions as the officer-in-

charge of the District deems appropriate.
FURTHER ORDER:If the respondent does not depart from the
United States in accordance with the foregoing, he shall be
deported to Hong Kong on the charge contained in the order to
show cause.
FURTHER ORDER:If the aforenamed country declines to accept the respondent into its territory or fails to advise the Attorney General within three months following original inquiry
whether it will or will not accept the respondent into its territory,
the respondent shall be deported to the Republic of China on
Formosa.

297


Interim Decision #2056

MATTER OF AZEVEDO
In Section 245 Proceedings
A-17265732
Decided by Regional Commissioner June 25, 1970
Absent a showing that a section 245 applicant denied adjustment of status
on the basis of a Class "A" medical certificate issued by the U.S. Public
Health Service was informed of her right to appeal such certification to
the board of medical officers of the U.S. Public Health Service pursuant to
section 234, Immigration and Nationality Act, the Regional Commissioner
remanded the case to the District Director to afford applicant an opportunity to initiate, within 30 days of date thereof, such appeal.
ON BEHALF OF APPLICANT: Joseph L. Soares, Esquire
791 N. Cherry Avenue
Tulare, California

The District Director finds applicant ineligible for the status
she seeks and certifies his order denying the application to the
Regional Commissioner pursuant to 8 CFR 103.4. Counsel submits no brief or other written statement in rebuttal to the District Director's denial.
Applicant is a 57-year-old single female, native and citizen of
Portugal. She first entered the United States as a visitor on September 2, 1966, received subsequent extensions of stay, and filed the
instant application on February 19, 1968 as the beneficiary of an
approved fifth preference immigrant visa petition filed in her behalf by her United States citizen brother on October 25, 1966. In
connection with this application she was examined by the
United States Public Health Service to determine her admissibility for permanent residence on medical grounds. On March 11,
1968 that Agency issued a Class "A" medical certificate stating
that applicant is afflicted with a "Class A" condition, i.e.: Mentally retarded: feeble-mindedness, moderate. On the basis of this
certificate and finding, the applicant is inadmissible for permanent residence under section 212(a) (1) of the Act. She resides
with and is cared for by her relatives in this country but lacks

611

Interim Decision #2056
the qualifying relative to seek a waiver under section 212 (g) of
the Act to remove the bar to her admissibility as a lawful permanent resident alien.
We have reviewed the case and concur with the District Director in that at this point the applicant is not eligible for the resident alien status she seeks nor is she eligible to seek a waiver
under section 212 (g) to overcome the ground of her inadmissibility. However, we do not find that applicant was informed that she
may appeal to a board of medical officers of the United States
Public Health Service pursuant to section 234 of the Act from the
Class "A" medical certificate which brings her within the class of
excludable aliens found in section 212(a) (1) of the Act—see 8
CFR 235.6(b).
In view of the foregoing, we will remand the case to the District Director to afford the alien an opportunity to make the appeal provided for in section 234 of the Act.
ORDER: It is ordered that the application be remanded to the
District Director for action not inconsistent with the above.
It is further ordered that if the applicant does not initiate the
aforesaid appeal within thirty days of the date hereon, or states
in writing that such an appeal will not be made, the order of the
District Director dated April 23, 1970 denying the application be
and the same is herewith affirmed.

612


Interim*D6cision:41556

OF NUNEZ-TORO

In Exclusion. Proceedings
' A-12178069

Decided by Board February 24, 1966
(1) Appellant, who, following arrival in the United States as a nonimmigrant
without a visa in direct transit to Canada, applied-for admission as a
political refugee thereby abandoning any claim. to nonimmigrant status
and manifesting a desire to remain indefinitely in this country, must be
considered an immigrant and since he is not in possession of a visa nor
eligible for a waiver thereof, he is excludable under section 212(a) (20),
Immigration and Nationality Act, as amended.
(2) Absent evidence or indication of any desire to avoid training and service
.. in the United States Armed Forces, an alien who deserted the United States .
Armyandepthiscourylaftehisdmonr.paet
residence and voluntary enlistment in 1980, is not inadmissible under section 212(a) (22) of the Act where the only evidence tends to indicate he
departed to Cuba either to attend his mother whom he believed ill or because
he felt obligated' to Change her pro-Castro attitude; he voluntarily snr-•
Tendered to the United States!• military authorities in Costa Rica in 1983;
and he has, for some time, expressed a desire to be permitted to complete
his enlistment
Fro-Lampe: Aet of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)]—No
immigrant visa.
Act of 1952—Section 212(a) (22) [8 U.S.C. 1182(a) (22)7—
Departed from or remained outside United States to avoid
military service.

This case is before us on appeal from a decision of 'a special inquiry
officer excluding the appellant on - the grounds stated above.
We have carefully reviewed'the entire record. The appellant is a
25-year-old married male, native and citiien of Cuba, who was admitted for permanent residence as an immigrant on May 15, 1960.
On June 21, 1960, he enlisted in the United States Army for a term
of three years but deserted on September 24, 1900 and was discharged

on September 26, 1963 under other than honorable conditions while
in a status of desertion. He was absent from. the United States
from about September 1960 to May 8, 1965 -when he arrived as an •
501

•.
Interim Decision #1556
airline passenger without a visa in transit to Canada and made his
present application for admission to the United States claiming
to be a political refugee. In reaching the conclusion concerning
excludability on the two grounds stated above, the special inquiry
officer found that the appellant abandoned his residence in the
United States in September 1960; that, upon his last arrival on
May 8, 1965, he was not in possession of any immigration document
other than his passport; and that he had "failed to establish that
the purpose of such desertion and departure was not to evade or
avoid service in the Armed Forces of the United States during a
period of national emergency." The issue in this case is whether
the appellant is excludable on the

two- grounds

mentioned, and we

have given full consideration to the brief submitted by him.
The appellant was married about November 1960, approximately
two months after his arrival in Cuba, and two children have been
born of this marriage. He was employed in Cuba and lived there
with his wife and children until August 1963 when he departed for
Central America with the intention of attempting to return to the
United States. He stated that he did not have sufficient funds for
the passage of his wife and children, and they are still residing in
Cuba.
The first ground of excludability stated above is based on 8 U.S.C.
1182(a) (20) under which an arriving alien, other than a nonimmigrant, is required to present an immigrant visa or other immigration
entry document. In his brief, the appellant contended that he is
not an immigrant and that this statutory provision does not apply
to him. However, section 101(4) (15) of the Immigration and
Nationality Act [8 U.S.C. 1101(a) (15)]. provides that the term
"immigrant" means every alien except an alien who is within the
classes of nonimmigrant aliens there set forth. As we have indicated
above, the appellant arrived as a nonimmigrant without a visa in
direct transit to Canada. Upon arrival in. the United States, however, he applied for admission as a political refugee. It is apparent
that he abandoned any claim to nonimmigrant status; that he
desires to remain indefinitely; and that he must be considered an
immigrant. We concur in the special inquiry officer's conclusions
that the appellant abandoned his residence in the United States in
September 1960; that he• is not -eligible for a waiver of the visa
requirements under 8 U.S.C. 1181(b) and the regulation (8 CFR
211.1) ; and that he is excludable on the first ground mentioned
above.
The special inquiry officer concluded that the appellant "is subject to exclusion under the provisions of section 212(a) (22) of the
502

Interim Decision #1556
Immigration and Nationality Act, and is ineligible for ,citizenship
as one who has departed from the United States to evade or avoid
service in the Armed Forces of the United States during a period
declared by the President as a national emergency.", . Apparently
the special inquiry officer considered that the apiiellant was ineligible to citizenship by reason. of his departure. - Actually, this
'statutory provision [8 U.S.C. 1182(a) (22)] provides for the exclusion of two distinct classes: (1), those who are ineligible to citizenship and (2) "persons who have departed from or- who have remained outside the United States to avoid or evade training or
service in the armed forces in. time of war or a period declared by
the President to- be a national emergency, * *,*." The term "ineligible to citizenship" is defined in 8 U.S.C. 1101(a) (19). In gen'eral, it relates to those who claimed exemption from military service
on the ground of alienage and those covered by section 314 of the
Immigration and Nationality Act [8 U.S.C. 1425] and its predecessor
[section 306 of the Nationality. Act of 1940]. Although 8 U.S.C.
1425 covers desertion from the military forces, it is limited; to
desertion in time of war and also requires that there be a conviction'
for the desertion. We have found nothing in the present record
which would show that the appellant is ineligible to citizenship. -Accordingly,_ the question which' requires determination is whether
he departed from or remained outside the United • States to evade
training or service.
The predecessor of 8 U.S.C. 1182(a) (22) was section. 3 of the
Immigration Act of 1917 as amended by section 2 of the Act of
September 27, 1944' [58 Stat. 746; 8 U.S.C. 136, 1246 Ed.]: This
statutory provision was originally enacted during World War II,
and it is apparent that its primary purpose was to reach those
seeking to evade the draft rather than deserters from the armed
forces who were already subject to military penalties. Nevertheless,
we previously held that this prior legislation was not limited to
• those who departed froin the United. States before becoming members of the armed forces but that it applied equally to an alien
who departed. after his induction. Matter of B B , 2 L & N.
Dec. 482 (1946) ; Matter of V B , 3 I. Se N. Dee. 265 (1948).
We have -also held that the departure or the remaining outside the
United States must have been for the primary purpose of avoiding
military service. Matter of 0 11 , 2 I. & N. Dec. 861 (1947) ;
Mayor of 1f—, 2 & N. Dee. 910 (1947) ; Matter of E , 4 I. & N.
Dec. 452 (1951). Hence, the appellant would be inadmissible if his primary purpose for departing or remaining abroad was to avoid
training or service in the armed forces.
—

—

-

—

—

—

—

503

Interim Decision #1556
The special inquiry officer did not specifically find that the
appellant's primary purpose in deserting the United States Army
and in departing from this country was to evade service in our
armed forces. but only that he had failed to establish otherwise.
There is a. great deal of irrelevant evidence in the record before us,
but it contains little information concerning the one matter which
is pertinent to this ground of inadmissibility, that is, the appellant's
purpose in departing from the United States about September 24,
1960. The only evidence concerning this appears to be a statement
in the appellant's affidavit of May 27, 1965 (Ex. 10) that he was
Compelled to go to Cuba to "attend" his mother who had informed
him that she was ill and his testimony at pages 11, 13 and 14 of
the transcript. This testimony is to the effect that he is antiCommunist; that he was only 19 years old when he deserted from
the United States Army; that he had to go to Cuba because his
mother was very much in favor of Caetroi that he worked with his
mother and stayed there with her for two years and helped her see

"the reality in Cuba"; that his mission has been accomplished; and
that his mother was imprisoned in Cuba at the time of the hearing
on September 15, 1965. The appellant's parents were divorced in
1954 and his custody was awarded to his mother.
After careful consideration of the record, we find that the appellant
did not depart from the United States for the purpose of evading
training or serviee in the United States Army but that he returned
to Cuba either because he believed his mother was ill or because lie
felt obligated to endeavor to change her pro-Castro attitude. We
believe that our finding is substantiated by the fact that the appellant was not a draft dodger but voluntarily enlisted in the United
States Army; the fret that there is nothing). to indicate that he had
any desire to avoid training and service in the armed forces; and the

fact that the record indicates that the appellant voluntarily surrendered to United States military authorities in Costa Rica, about December 24, 1963 and has, for some time, expressed a desire to be
permitted to complete his enlistment of three years in the United
States Army. We conclude that the appellant is not inadmissible
under 8 U.S.C. #1182(a) (22).
In his brief, the appellant stated that he was requesting "refugeeescapee" status under the Act of September 11, 1957 [section 151.
However, that provision was repealed by section 24(a) of the Act
of September 26, 1961 [75 Stat. 650; Public Law 87-301]. The
appellant also contends that his case is within section 243(h) of the
Immigration and Nationality Act, but the Supreme Court has held
in Lev Nay Ma v. Barber, 357 U.S. 185 (1958), that this statutory
504

Interim Decision #1055
provision is not applicable in exclusion cases but only in derlortation
cases. Apparently, the appellant was or is under parole in the
United States pursuant to 8 U.S.C. 1182(d) (5) and 8 CFR, 212.5.
natters relating to termination of parole and release under parole/
are not within the province of this Board but are within the jurisdic
tion of the District Director of the Service. of the district in which
the appellant is located. The other contentions of the appellant in
his brief are without merit and do not require specific discussion.
Although we hold that the appellant is not excludable on the second
ground stated above, we have concluded that he is inadmissible on
the first ground. Accordingly, his appeal will be dismissed.
ORDER: It is ordered that the following Conclusion' of Law be
substituted for Conclusion of Law numbered 2 in the special inquiry
officer's decision:
The appellant is not subject to exclusion under the provisions of section
212(a) (22) of the Immigration and Nationality Act IS 1).s.o. 1182 (a) (22)1-

It is farther ordered that the appeal be and the same is hereby
dismissed. .

505


Interim Decision #2228

MATTER OF VALDOVINOS
In Deportation Proceedings
A-10630609

Decided by Board September 11, 1973
A lawful permanent resident alien's brief departure to Mexico, withthe intention
of assisting aliens in entering the United States unlawfully, constitutes a
meaningful interruption of his residence (Rosenberg v. Fleuti, 374 U.S. 44 9);
hence, upon his return to this country he made an entry within the meaning of
section 101(a)(13) of the Immigration and Nationality Act upon which to predicate a ground of deportability.
CHARGE:

Order: Act of 1952—Section 241(a)(13) (8 U.S.C. 1251(a)(13)]—Prior to entry,
knowingly and for gain encouraged, induced, assisted,
abetted or aided any other alien to enter or to try to
enter the United Mateo in violation of law.

This is an appeal from a decision of an immigration judge,
dated December 8, 1972, which found the respondent deportable
and directed his deportation. The appeal will be dismissed.
The respondent is a 50-year-old male alien who is a native and
citizen of Mexico. He was admitted for permanent residence on
January 24, 1957. On March 4, 1971, he departed the United States

for Mexico and returned the same day as a "returning resident
alien:' However, shortly after entering the United States he was
arrested for willfully or knowingly encouraging or inducing the

entry into the United States of an alien not entitled to enter or
reside within the United States in violation of section 274(aX4) of
the Immigration and Nationality Act (8 U.S.C. 1324(a)(4)); and
knowingly transporting an alien who is in the United States in
violation of section 274(aX2) of the Act (8 U.S.C. 1324(a)(2)). On May
5, 1971, the respondent plead guilty, and was found guilty, of violating section 274(aX2) of the Act (8 U.S.C. 1324(aX2)). He was sentenced to imprisonment for four years and is presently incarcerated
at a Federal Correctional Institution.
At a deportation hearing on December 5, 1972, the respondent
admitted that he entered into an agreement with three Mexican
438

Interim Decision #2228
citizens to transport them to Los Angeles, California. He conceded
that he had transported them within the United States knowing
that they were in the United States illegally. However, he emphatically denied that he had knowingly and for gain, encouraged,
induced, assisted, abetted, or aided anyone to enter or try to enter
the United States in violation of the law. He asserted that he had
never seen or contacted the Mexican citizens prior to meeting
them in Calexico, California.
The respondent's testimony concerning his initial contact with
the three Mexican citizens directly contradicts the factual account
two of the Mexican citizens gave to an immigration officer. Both
stated, under oath, that the respondent had met them in Tijuana,
B.C., Mexico on March 3, 1971 and made arrangements to meet
them the next day in Mexicali, B.C., Mexico. They stated that they
met the respondent on the following day and he instructed them
to cross the border into the United States and he would pick them
up in Calexico, California. Both. Mexican citizens stated that the
respondent provided them with entry cards and, in return for
respondent's assistance, they paid him $100 each.
After carefully evaluating the entire record, we sustain the
immigration judge's finding that on March 3, 1971, the respondent
did knowingly and for financial gain, induce and assist three aliens
in entering the United States illegally; and on March 4, 1971, the
respondent departed the United States with the intent to further
assist the aliens in entering this country.

The only issue remaining which pertains to the deportability of
the respondent under section 241(a)(13) is whether he performed
his illegal activities prior to making an "entry" into the United
States. Since the respondent was admitted for permanent residence before his March 4, 1971 departure, he can be subject to the
consequences of an "entry" upon his return only if that departure
constitutes a meaningful interruption of his resident alien status,

Rosenberg v. Fleuti, 874 U.S. 449 (1963).1
In analyzing whether a departure from the United States is a

meaningful interruption of residence, the Supreme Court in Rosenberg v. Fleuti stated that "if the purpose of leaving the country
is to accomplish some object which is itself contrary to some policy
reflected in our immigration laws, it would appear that the
interruption of residence thereby occurring would properly be

The United States Supreme Court stated that if a trip is "innocent, casual
and brief, it is consistent with all the discernible signs of congressional purpose
to hold that the 'departure ... was not intended' within the meaning and

ameliorative intent of the exception to section 101(a)(13)."

439

Interim Decision #2228
regarded as meaningful." 2 Although we recognize that the reason
for departing the country is only one of several major factors
which should be considered in determining whether a departure is
a meaningful interruption of residence, 3 we conclude that this one
factor, standing alone, can be deemed sufficient to warrant a
finding that a meaningful interruption of residence has occurred. 4
In the present case, we conclude that respondent's excursion to
Mexico from the United States was neither innocent nor casual. It
was not innocent in that the primary reason respondent departed
the United States was for the purpose of violating the immigration
law. In a case involving a similar factual situation, the Fifth
Circuit Court of Appeals in Solis Davila v. INS, 456 F.2d 424
(C.A.5, 1972) stated that a departure from the United States for
the express purpose of unlawfully smuggling several aliens into
the country is "precisely the activity for which Fleuti provides no
relief." We agree with that conclusion. 5
The respondent's trip to Mexico was a planned excursion which
was designed to benefit the respondent pecuniarily. It was neither
unforeseen nor executed by chance. Rather, it was prearranged
and deliberate. The respondent made definite plans on March 3,
1971 to meet three Mexican citizens on the following day in

Mexico. The time and place that they were to rendezvous was
designated in advance. Therefore, it is evident that respondent's
departure from the United States on March 4, 1971 was not casual
within the meaning of Fleuti.6 Accordingly, since the trip was
neither innocent nor casual, we conclude that respondent's departure was a meaningful interruption of his status as a permanent
resident and his return to the United States on March 4, 1971
constituted an "entry" as defined by section 101(aX13) of the Act.
2 Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963); Accord, Matter of ValenciaBarajas, 13 I. & N. Dec. 369 (BIA, 1969).
In Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963), the Supreme Court enumerated three relevant factors which should be considered: (1) The length of time
the alien is absent. (2) The purpose for leaving the country. (3) The necessity of
obtaining travel documents.
440 F.2d 701 (C.A. 5, 1971); Matter of
4 See generally Yatun-lacguez v. INS,
V alencia-Barajas, 13 I. & N. Dec. 369 (BIA, 1969); Matter of Corral-Fragoso, 11 I.
& N. Dec. 478 (BIA, 1966).
5 See generally Vargas-Banuelos v. INS, 466 F.2d 1371 (C.A. 5, 1972) and
Palatian v. INS, Civil No. 73-197 (C.D. Cal. April 18, 1973). Both cases involve the
formation of a criminal intent subsequent to departing from the United States.
In the present case, the respondent left the country with the intention of
violating the immigration law; therefore, this case is readily distinguishable
from Vargas-Banuelos and Palatian
6 See aenerally Matter of Janati-Ataie, Interim Decision No. 2170 (A.G. 1972) and
Matter of Nakoi, Interim Decision No. 2168 (BIA, 1972).

440

Interim Decision #2228
Consequently, deportability has been established by clear, unequivocal and convincing evidence.
On appeal, the respondent applied for termination of proceedings under section 241(f) on the ground that he was married to a
lawful permanent resident. Since the respondent did not procure
his visa or other documentation by fraud or misrepresentation, it
is evident that the respondent is not entitled to the benefits of
section 241(f) of the Act.
ORDER: The appeal is dismissed.

441


MATTER OF E.-In SECTIONS 341 Proceedings

A-12472325-6
Decided by Regio-nal Commissioner September 29, 1961
Approved by Avi,s.tant Commissioner October 13, 1961
Citizenship—Acquisition at birth—Section 205, Nationality Act of 1940—Illegitimate child—U.S. residence of citizen mother.
Temporary visit to United States of short duration satisfies residence require-

went in section 205 of the Nationality Act of 1940. Illegitimate child born
abroad to United States ritizon mother Is held to have acquired United
States citizenship at birth pursuant to section 205 where the mother visited the United States prior to the child's birth for approximately two days.
BEFORE THE REGIONAL COMMISSIONER

( September 29, 1961)
DISCUSSION: These cases were certified by the Acting District
Director, Seattle, Washington, for an advisory opinion regarding
the applications of G—E-- and Y---E for certificates of citizenship pursuant to the provisions of section 341 of the Immigration
and Nationality Act.
Applicants, who were born out of wedlock, claim that they acquired United States citizenship under section 205 of the Nationality
Act of 1940 at birth in Mexico, on March 16, 1944, and October 8,
1945, respectively, through their mother, M—C E—, who `t-a9 then
a citizen of the United States who had resided in the United States
prior to their birth. The mother had acquired United States citizenship at birth in Mexico on September 28, 1926, through her
father, W—K—E—, a native-born United States citizen. The only
visit to the United States by the mother prior to the birth of the
applicants was for approximately two days, about December 15
or 16, 1940. She was never in the United States thereafter until her
entry about June 8, 1949, with applicants.
The question presented is whether the mother's presence in the
United States prior to the birth of applicants constitutes the residence required by section 205 of the Nationality Act of 1940.
Applicants' citizenship is determined by said section 205 which
provides as follows:

The provisions of section 201, subsections (c), (d), (e), and (g), and section 204, subsections (a) and (b), hereof apply, as of the date of birth, to a
child born out of wedlock, provided the paternity is established during minority, by legitimation, or adjudication of a competent court.
In the absence of such legitimation or adjudication, the child, whether born
before or after the effective date of this Act, if the mother had the nationality of the United States at the time of the child's birth, and had previously
resided in the United States or one of its outlying possessions, shall be held to
have acquired at birth her nationality status. (54 Stat. 1139-1140; 8 U.S.C.
605.)

Before 1934, section 1993, U.S. Revised Statutes, provided the
sole source of inherited citizenship status for foreign-born children
of American parents. That statute applied only to children of
citizen fathers (Montana v. Kennedy, 366 U.S. 308 (1961) ). As

amended by the Act of May 24, 1934 (48 Stat..797), the pertinent
law provided as follows:
Any child hereafter born out of the limits and jurisdiction of the Tinitod

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 rights of 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. . . .

Although the 1934 amendment permitted citizenship to descend
from mothers as well as fathers, it was only prospective in nature
and, therefore, did not affect the status of illegitimate children previously born to American citizen mothers. The prior residence required of the citizen parent under that statute was not required, to
be of a permanent nature (Matter of E—, 1 40 (1941)). Visits to
the United States of very short duration were held sufficient to satisfy
the residence requirements of that Act (Matter of V—, 6-1 (1954)).
As a part of the Nationality Act of 1940, effective at the time
of birth of the applicants, section 104 (8 U.S.C. 504) thereof provided that "for the purposes of sections 201, 307(b), 403, 404, 405,
406, and 407 of this Act, the place of general abode shall be deemed
the place of residence." This definition effectively prevented the
acquisition of "residence" by a mere temporary visit to the United
States (Matter nf 41 , 4 118 1 951 ) ).
Section 205, supra, in its retroactive aspect, intended to apply to
illegitimate children of United States citizen mothers born prior
thereto the same rules as previously had governed citizenship
acquired at birth before May 24, 1934 through United States citizen fathers. Such rules included the holding that the requirement
of "residence" was satisfied by a temporary visit to the United
States of short duration. Furthermore, the definition of residence
in section 104 of the 1940 Act as "the place of general abode" was
-

(

480

expressly limited to the purposes of tile sections set forth in said
section 104. Section 205 was not included.
Since the 1940 statute expressly applied the new definition of
residence to certain sections of the law which did not include section 205, it is reasonable to conclude that section 205 was intentionally omitted from such definition. Therefore, the previous meaning
of the word residence should still be applicable.
The record indicates that applicants' mother resided in the United
States, prior to their birth, within the meaning of section 205 of the
Nationality Act of 1940. Consequently, applicants became United
States citizens at birth and, not having expatriated, are entitled to
certificates of citizenship.
ORDER: It is ordered that certificates of citizenship be issued to
G—E— and Y—E—.

481
Z4377 -53

32


Interim Decision #1551

Magma or

FLORES-GONZALBZ

. A-6819970
,

In. Deportation Proceedings

Decided by Board January 20, 196V
Since the Department of the Army has not taken any steps to revoke ab initio
the honorable discharge issued respondent, an applicant for suspension of
deportation who has served a minimum of 24 months in an .ftetiva duty
status in the Armed Forces of the United States" following which he was
separated "under honorable conditions," he comes within the purview of
• section 244(b), Immigration and Nationality Act; as amended, notwithstanding gnat under Army regulations be may be dropped from the rolls Of
the army as a result of his conviction which forms the basis .fOr his
•
•
•
deportation.
•
•
CHARGE:
' Order: Act of 1952—Seetion 241(a) (11) 18 U.S.C. 1251(a) (11))--Convic-

tion for possession of marihuana.

The respondent, a native and citizen of Mexico- appeals from an
order entered by the special inquiry officer on October 4,- 1965
directing his deportation 'to. Mexico on the charge that he has been
convicted of a law relating to the illicit possession-of marihuana in
violation of Article 725(b) of the Texas Penal Code. Deportability
on the stated charge is conceded. The appeal is directed to the
denial Of the respondent's application for suspension Of deportation
filed pursuant to section 24t(b) of the Immigration incl. Nationality
Act.
The respondent, an unmarried male alien, -28 years of age was
admitted to the United States as an immigrant at the port of El
Paso, Texas on November 29, 1947. He'as convicted on - February
18; 1968 in Bexar County, Texas for the offense of "possession of
Marihuana in violation of Article 725(b) of the Texas Penal, Code.
The respondent concedes that he is deportable as charged in the
order to show cause.
The respondent has applied for suspension of deportation pursuant to section 244(a) (9) of the -Immigration and Nationality
485

Interim Decigion 41551

'

Act. Section 244(a) (2) provides, inter 924 that an alien who is
deportable as a narcotic offender must establish that he has been
physically present in the United States for a "continuous period"
of not less than 10 years immediately following the commission of
the Act constituting the grcitmd, for deportation and during this
period he must establish that he has been a person of good moral
character. Since the Siidance establishes that the respondent was - charged with possession of marihuana, on October 28,,1962, he cannot qualify for suspension of deportation under section 244(a) (2)
; of the Immigration and Nationality Act Unless by reason of his
"active-duty status in the Armed Forces of the United States" he '
comes within the exemption from the "continuous physical presence"

requirement provided by section 244(b) of the Immigration and
Nationality Act? The record establishes that .the respondent was
inducted into the armed- services at San Antonio, Texas on April
-26, 1960; The special inquiry officer finds that the respondent served in an.
"active-duty status in. the Armed Forces, of the United States" for
a -period of sufficient duration' to qualify - under section 244(b) of
the Immigration and Nationality Act. The special inquiry officer
concludes however that since the respondent was dropped from:the
rolls of the Army on January 19, 1965 by reason of his conviction
for possession of marihuana he is statutorily ineligible for relief
under section 244(a) (2) because he was not separated from the
Armed' Services under honorable conditions. The Service has filed
a brief supporting the szecial inquiry officer's conclusion and orally
argued the case before this Board. _ The special inquiry officer and
' the Service reason that there is a continuing - responsibility on the
part of the respondent to comply -with the discharge provisions of
section 244(b) notwithstanding the fact that he (respondent) served
the required two years of "active-duty status" in the Armed Forces
and was discharged "under honorable conditions" prior to the time
'Section 244(b) of the Immigration and - Rationality Act reads as follows:
(b) The requirement of continuous physical presence in UM United States
specified in paragraphs (1) and (2) of subsection (a) of this section shall not
be applicable to an alien who (A) has served for a minimum period of twentyfour months in an active-duty status in the ArMed Forces of the United States
and, if separated from such service, was separated under honorable conditions, and (B) at the time of his enlistment or induction was in the United
States.
'The evidence establishes that the respondent wad inducted into the Armed
Services on April 26, 1960 and discharged "under honorable conditions" on
May 15, 1962 when he was transferred to the Army Reserves.

486

illthrkrtL P.04sioa 44451
that he committed•the act which serves as the -basis for.his deportation.
.
Counsel foi the respondent-urges rarrbr lunthe Conclusion..of the.
special inquiry officer because (1) the•ecord 'id completely devoid of
any evidence showing that the tespondent•was- notgeeparated-under
honorable conditions and (2) there is no 'evidence of record thatrespondeit was 'dropped from the rolls' of thi3 1Atiny" itecerfiance with the procedure set forth in piregratih 10 fof gfmy Ipegulations 185478.3
We find nothing in the .statate ;or 'tile'Preckents“tited b? the
special inquiry officer ine,the Tkial
rig:Aix:es' a
finding . .of inelig,ibility' under' t4e
/0114; 1s -(A .segti*
244(b): after the :alien has billy serVed...the xequired...two Tian 'Of
f United'
States"; •
"active-duty status in the Armed Forces
o
has been. discharged from the Armed Imes, "under honorable conditions"' and ,then after a lapse oC some two and one half years is
dropped •frem•the rollsiof the Army .Reserves by reason: of a conviction of a narcotic charge xxonmittostafter the completion of the
required two years of active-duty :status;' Section.244(b). provides
in substance that the.requirement of 10 years of .physical presence
after the commission of a proscribed 'act. which render§ an alien
-deportable is waived in the case of an applicant for suspension .of
deportation Who "lies served for a minimum peried'uf.24 Months
in an active-duty. states in the Armed' Forces of the United' States
.and if separated from- such service' the discharge'was
honor-able conditions." .(EmpliFi's "added.) ' The resp'ondentimeets these
requirements. The term "if separated- front- such amide' refers
to the completion "of "94 months of action duty status in gm Armed
.Forces of the United States" following which. there Wad a -Sepal:afion "under honorable conditions." (Emphasis added.)
Our decision in this regard is not contrary to the conclusion
reached
Matter of Peralta, Int. Dec. No. 1290, BIA, gk.ne.19,
1968. the definitions- of the terms "active duty" and ;
-

''Paragiqh 10 of Array Regulations 135-178, provides:
10. Dropping from the rolls A. reservist sentenced to confinement in a
Federal or State penitentiary or correctional instittitIon after having been
found guilty of an offense by a civil court and who* sentence has become
Anal, whether or not actually confined, may be dropped from the rolls of the
army. This act will be accomplished in special or letter orders.
Waited States 47. Rosner, 249 F.2d 49 (C.A. 2, 1957); (Xenia v. Brooker,
173 F. Stipp. 493; Natter of Perolta, Int. Dee. No. 1290; Matter of Woo, Int.
Mee. No. 1297.

487

Interim Decision #1551
"active service" 5 set forth in 10 United States Code 101 (22 & 24)
we -held that "annual training duty" while a member of the Reserves
could be credited in completing the 24-month period of "active-duty
status" in the Armed Forces. There was no dispute with regiird to
the issue of whether there . was an honorable discharge in the

Peralta case (supra).
Pursuant to 10 United States Code 101 (29)° the phrase "may
be dropped from the rolls of the army" found in Paragraph 10 of
Army Regulations 135-178 must be used in a permissive sense and
there is nothing in this record to show that the Department of the
Army has taken. any steps to revoke ab ihitio the honorable discharge
issued to the respondent on May 16, 1062. Accordingly, we find the•

respondent statutorily eligible for suspension of deportation under
the provisions of section 244(a) (2) of the Immigration and Nationality Act.
The respondent on or about June 25, 1964 was convicted of an
aggravated assault on a female and sentenced to 90 days in jail.
His probation for the narcotic charge was revoked on September 24,
1964 and at the time of _the hearing in June of 1965 he was serving

a two-year sentence at the Texas Department of Correction Facility
at Sugarland, Texas. -The respondent must establish good ; moral
character
from the date of the filing of his application for suspen..
awn. of deportation up to and including the 'final adjudication of
the said application. Matter of Peralta, Int. Dec. No 1290, BIA.,
June 19, 1963. We will remand the case to the special inquiry
officer for a reappraisal and revaluation of the evidence concerned
with the respondent's application for suspension of deportation and
a decision as to whether suspension of deportation is warranted as a
matter of discretion. An appropriate order will be entered.
ORDER; It is directed that the case be remanded to the special
inquiry officer for further decision in accordafice with the foregoing
opinion.
Section 101 Definitions . . . the following definitions apply in this title:
(22) "Active duty" means full-time duty in the active military service of
the United States. It includes duty on the active list, full-time training duty,
annual training duty, and attendance, while in the active military service, at a
school designated as a service school by law or by the Secretary of the military department concerned.
(24) "Active service" means service on active duty.
• Section 101 Definition. . . . the following definitions apply in this title:
5

(29) "May" is used in a permissive sense. The 'Words "no person may

mean that no person is required, authorized, or permitted to do the act prescribed.

488


Interim Decision #1887

MATEER OF LEE

In SECTION 245 Proceedings
A-10454029
Deckleclby Deputy Associate Commissioner January .90,1964

To be eligible for nonquota status under section 2, Act of October 24, 1962, the
retention of status proviso to section 2 of that Act requires that as of the
date of the application for adjustment of status under section 245, Immigration and Nationality Act, the beneficiary must have been performing the
duties for which his services were sought in the approved petition filed in his
behalf prior to April 1, 1962; such nonquota status is retained notwithstanding a change from his original employment between the date of Sling and
date of final adjudication of his section 245 application since such change of
employment, which resulted in the approval of another first-preference visa
petition in his behalf, was a continuation of research commenced and was
effected, under the same research grant, to take advantage of better facilities.
[Cf. Matter of Gupta, Int. Dec. No. 1402.]

The applications for adjustment of status under section 245, 8
U.S.C. 1255, of the Immigration and Nationality Act were denied by
the Officer in Charge, Milwaukee, Wisconsin on August 22, 1963, on
the ground that immigrant visas were not immediately available to
the applicants. On December 26, 1968, the applications ware reopened
and certified to this office "for such further consideration as may be
warranted."
The principal applicant, Dr. Ya-Pin Lee, born at Taipeh, Formosa
on October 23, 1924, was admitted to the United States on July 20,.
1955, as an exchange visitor. He had received an M.D. degree from
National Taiwan University, Formosa in 1949 and a Ph. D. from Kyushu University in Japan in 1955. He conducted post-doctorate research in biological chemistry at the Enzyme Institute of the Univeristy of Wisconsin from July 1955 to September 195t, at the Washington University School of Medicine from September 1957 to September 1959 and again at the University of Wisconsin from September
1959 to July 1, 1968, at which time he accepted the position of Hill Research Professor of Biochemistry at the University of North Dakota,
which position he holds presently. There is ample evidence that subTO1

Interim Decision #1387
jeet is outstanding in his field and that he has made important contributions to medical science.
Dr. Lee was married in Taiwan to Lin lin Liu on December 7, 1950.
-

She was born at Taipeh on July 11, 1925. They have three children,
all born at Taipeh: Andrew Shu-tsung, October 31, 1951; Nicolos
Chien-tong, August 30, 1953; and Benedict Chien-nan, December 4,
1954.
The principal applicant was subject to the two-year foreign residence requirement of section 212(e), 8 U.S.C. 1182(e), by virtue of his
admission to the United States as an exchange alien. However, on
October 26, 1959 the foreign residence requirement was waived by the
Service upon the favorable recommendation of the Secretary of State
pursuant to the request of the Department of Defense.

On October 28, 1959, the University of Wisconsin filed a petition to
accord Dr. Lee first preference status as a Research Biochemist. The
petition was approved on December 15, 1959, and subsequently revalidated to December 15, 1962. Following the enactment of P.L. 87-885
on October 2,4, 1962, which accorded nonquoto, status under certain conditions to beneficiaries of first preference petitions filed prior to April
1, 1962, he and his family, who had been paroled into the United states
on October 22, 1961, were invited by the Service to apply for adjustment of status to permanent residents. This they did on November
20, 1962. It is noted that the principal applicant was then and continued to be until July 1, 1963, employed by the University of Wisconsin performing the duties set forth in the visa petition filed October
28,1959.
As part of the processing of the applications, requests for information from consular records were forwarded to the United States
Embassy at Taipeh on December 12 and December 13, 1962, pursuant
to outstanding instructions, as the applicants had resided in Taiwan
prior to entering the United States. By January 3, 1963, all required
action had been taken and all documents necessary to adjudicate the
case had been received, except for the report from the Embassy.
The Embassy, at that time, had received an unprecedented number of
similar requests in connection with other former residents of Taiwan
who had simultaneously become prima facie eligible for adjustment of
status through the enactment of P.L. 87-885 on October 24, 1962. As
a result, the response from the Embassy, which contained no derogatory
information, was not received by the Service until August 19, 1963.
When the consular report was received, a routine letter was forwarded to the University of Wisconsin, applicant's petitioner, to ascertain if applicants were still entitled to first preference status. Upon
being ad vised that Dr. Lee had transferred to the University of North
-

Dakota on July 1, 1963, the applicants were advised on August 22, 1963,
702

Interim Decision #1387
that inasmuch as Dr. Lee was no longer employed by the petitioner,
they were no longer entitled to nonquota status (under section 2 of P.L.
87-885) ; further that approval of their applications for adjustment of
status was contingent upon immigrant visas being immediately available and that, since visas under the quota for Chinese persons, to which
they were chargeable, were not available, the applications were denied.

Subsequently, on. September 4,1963, a petition by Dr. Lee's present
employer, the University of North Dakota-, was filed to accord him first
preference quota status as Research Professor of Biochemistry. This
petition was approved on September 16,1963.
The following is quoted from a December 2, 1963, letter to the
Service from Dr. Henry Lardy, Professor of Biochemistry and Chairman of the Enzyme Institute at the University of Wisconsin:
Dr. Lee's work has dealt mainly with the mode of action of the thyroid
hormones, a problem that is of importance not only to medicine but to problems
of stress and adaptation to unusual environments The work that Dr. Lee was

carrying out at the University of Wisconsin is being continued by him at his
new post. He is completing experiments started in this laboratory, and is
expanding his program because of additional facilities available to him at the
University of North Dakota.

The following is excerpted from a November 22, 1963, letter to
the Service from W. E. Cornatzer, Ph. D., M.D., Professor and Head
of the Department of Biochemistry and Director of the Ireland
Research Laboratory at the University of North Dakota :
Dr. Lee is conducting the same research that he was doing at the University
of Wisconsin. In fact, he is still carrying out jointly research with Dr. Henry
Lardy of the University of Wisconsin. I have asked Dr. Lardy to write you a
letter to confirm this. Dr. Lardy filed the First Preference Quota for Dr. Lee
December 15, 1959.
Dr. Lee's salary at the University of Wisconsin was being paid by U.S. Public
Health Research Grant. Dr. Lee transferred this same research grant to the
University of North Dakota for him to continue his research. His salary

now is being paid by another research grant given to the University of North
Dakota.

The foregoing indicates that Dr. Lee was continuing the research
commenced at the University of Wisconsin, under the same grant,
and had transferred his operations to the University of North Dakota to take advantage of the better facilities there.
It now becomes. necessary to examine the statute which accorded
applicant nonquota status on October 24, 1962. Section 2 of the
Act of October 24, 1062, P.L. 87-885, provides as follows:
Any alien eligible for a quota immigrant status under the provisions of
section 203(a) (1) of the Immigration and Nationality Act (8 U.S.C. 1153)
on the basis of a petition filed with the Attorney General prior to April 1, 1962.
shall be held to be a nonquota immigrant and may be issued a nonquota immigrant visa : Provided, That upon his application for an immigrant visa. and

703

Interim Decision #1387
for admission to the 'United States or for adjustment of his immigrant status
in the United States pursuant to section 245 of the Immigration and Nationality Act (8 U.S.O. =5) the alien is found to have retained his status as.
established in the approved petition. This section shall be applicable only to.
aliens admissible to the United States except for the fact that an immigrant
visa is not promptly available for issuance to them because the first 50 per
cent= of the quota of the quota area to which they are chargeable is oversubscribed by beneficiaries of petitions approved by the Attorney General
pursuant to sections 203(a) (1) and 204 of the Immigration and NationalityAct (8 U.S.C. 1153, 1154) prior to the date of enactment of this Act.
Section 2 of the Act of October 24, 1962, was remedial in nature,.
intended to benefit aliens (A) whose services had been determined
by the Attorney General to be needed urgently in the United States
because of the high education, technical training, specialized experience, or exceptional ability ul such immigrants and to be substantially beneficial prospectively to the national economy, cultural
interests, or welfare of the United States, and (B) to qualified
quota immigrants who are the spouse or children of any immigrant
described in clause (A) if accompanying or following to join him.
As such, it may be construed liberally. However, the provisions
of that section require nothing more than an ordinary and reasonable interpretation to reach the conclusion that the instant applications could and should have been granted. It accords nonquota
status to the beneficiary of a first preference petition filed prior to
April 1, 1962, Provided, That, upon his application for (1) an immigrant visa and for admission to the United States or (2) adjustment
of his immigrant status in the United States pursuant to section 245of the Immigration and Nationality Act, the alien is found to have
retained his status as established in the approved petition.
Section 2 of the Act of October 24, 1962, is interpreted as requiring
that as of the date of application for adjustment of status the applicant
must have been performing the duties for which his services were
sought, in the employ of the petitioner whose approved petition in. his
behalf was filed prior to April 1, 1962. Under this remedial legislation, to hold that the applicant must have remained in the employ of
that petitioner after the application for adjustment was filed and until
it was approved, would work undue hardship upon highly qualified
aliens, such as Dr. Lee, whose services are needed urgently and who,
although not employed by the original petitioner at the time of adjustment of status, might be performing even more important services
for another petitioner. To hold otherwise might penalize deserving
aliens, such as Dr. Lee, because of delays in the administrative processing of their cases, perhaps completely unreasonable and certainly beyond their control, and might well deny this country the full benefit
of their talents and abilities if they were to be held captive in their
704

Interim Decision #1387
original jobs, afraid to accept more progressively responsible positions
in their fields lest they lose the nonquota status accorded them. It
is the opinion of the Service that this was not the intent of Congress in
enacting this remedial legislation, and to so hold would circumvent the
statute's true purpose.
This is not the case of an alien who used the device of a first preference petition to gain a beneficial quota (or nonquota) classification and
having gained that benefit wilfully abandoned the vocation or profession so that his urgently needed services were lost to the United States.
Such a case would warrant denial of the application for adjustment
as a matter of discretion. As indicated above, the applicant in this
case is actually engaged in the same field as that which was found to
warrant approval of the original visa petition in his behalf.
It having been satisfactorily established that the applicants are
entitled to nonquota status pursuant to section 2 of the Act of October
24, 1002, are eligible in all respects to receive immigrant visas and are
admissible to the United States, their applications will be granted.
ORDER: It is ordered that the order of the Officer in Charge, Milwaukee be and the same is hereby withdrawn.

It is further ordered that the applications for status as permanent
residents be and the same are hereby granted.

705
768-456-65-4G


MATTER OF G

-

In DEPORTATION Proceedings
A-7111978
Decided by Board September •5(5, 1958
Act of September 11, 1457, section 7 —Eligibility, peeen+ - rbilel relnoi nnchinDefinitions in 1952 Act controlling.
An alien cannot qualify for sAief under section 7 of the ,let of September 11,
1957, on the basis of his relationship to is United States citizen child over
the age of 21, since such alien is not a ' ,parent" as defined in section 14 of
the 1957 act and section 101(b) (1) and (2) of the Immigration and Nationality Act..

Cueram:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)]—Excludable
at entry as an alien who was not a noneuota immigrant as specified
in his visa.

BEFORE ME BOARD

Discussion: This case is before us on appeal from a decision of
the special inquiry officer dated June 16, 1958, ruling that the alien
is ineligible for relief under section 7 of Public Law 85-316, denying all other discretionary relief, and ordering deportation. Respondent was born in Hungary on December 23, 1897, and first
entered the United States in 1913. He became a naturalized United
States citizen on October 23, 1922, but lost his United States citizenship through residence abroad between 1939 and 1950, when he returned to the United States as the spouse of a United States citizen
with a section 4(a) visa. .
Recently, respondent applied for naturalization as a former
United States citizen and as a result of this petition the Immigration Service learned that his second wife was granted a divorce on
the ground of desertion ha the Chancery Conrt of New Jersey on
October 23, 1944 ; with the final decree being filed on January 24,
1945- It is conceded that the divorce was obtained purely by publication and that a copy of neither the retitle-. nor the decree was
ever sent to respondent.
"Tditor'e Yote: See Stutter of II--, A-7114373, Inieririi Decision 144 1004,
which overrules this decisinn,

140

While respondent admits that his wife mentioned to him (perhaps in 1945) that she had gotten or was contemplating a divorce,
he testified that he did not believe her statements since she had frequently threatened divorce in the past. had lived with him as his
wife in Czechoslovakia in 1947, and had never presented him with
any documents to this effect. Upon arrival in the United States,
respondent was met at the boat by his son and his wife, in company
with another man. The son took respondent to live with him, but
a few days later respondent visited his wife (no longer living in
their old home) and learned that she was living with the other man,
whom she subsequently
The special inquiry officer held that respondent's defense of lack
of knowledge of his wife's divorce was unavailing to defeat the
ground of deportation, which tons held sustained. The special inquiry officer denied respondent's application for relief under section 211(c), none pro tune, because the special inquiry officer felt
that respondent knew he was not the spouse of a United States
citizen when he applied for admission.
Preexamination was also denied on the theory that even though
respondent was eligible for section 203(a) (2) preference, he is excludable under section 212(fl,) (19). Moreover, respondent was held
ineligible for suspension since he would be unable to prove good
moral character, having furnished false information under oath in
1955 to a naturalization examiner and the District Court concerning
his marital status.
On May 13, 1958, the Board held that because respondent was
not the spouse of a United States citizen at the time of last entry,
he was not entitled to nonquota status and that the deportation
charge was clearly supported. The Board further held that since
the record revealed that respondent was fully aware of the divorce
and its effect at the time he testified on his naturalization petition,
the special inquiry officer was correct in holding that respondent
was unable to prove good moral character on the basis of these
statements and, consequently, was ineligible for suspension and voluntary departure.
Moreover, the Board refused to grant a waiver of the ground of
inadmissibility under section 211(c), nurse pro twat, since respondent may have learned of his wife's divorce or may have become
fully aware of its effect on his immigration status prior to utilizing
this nonquota statue as the spouse of a citizen to obtain entry into
this country. Finally, the Board ordered a reopening of the record
to permit respondent to apply for relief under the last clause of
section 7 of the Act of September 11, 1957 (Public Law 85-316).
After a reopened hearing, the special inquiry officer ruled that
respondent was ineligibile for relief under section 7 of Public Law
141

85-316, because respondent is not a "parent" as defined in section
101(b) (1), (2), respondent's son being over 21 years of age,
Sm-tion 14 of Public Law 86-316 state. that:
Except as otherwise specifically provided in this Act, the definitions contained in subsections (a) and (5) of section 101 of the Immigration and
Nationality Act shall apply to sections 4, 5, 6, 7, 8, 9, 12, 13, and 15 of this Act.

Since section 7 contains no such specific provision, the definitions

found in the Immigration and Nationality Act apply and respondent is not a "parent" Hence, the alien is ineligible for administrative relief under section 7. The decision of the special inquiry
officer is accordingly affirmed.
Order: It is hereby ordered that the order of the special inquiry
officer be affirmed.

142


Interim Decision #1886

MATTER

OF GONzALEZ DE

LARA

In Deportation Proceedings
A-12693848

Decided by Board July29,1968
(1) A conviction for unlawful possession of marijuana for which respondent was
sentenced to confinement for 2 years, imposition of sentence was suspended
and probation granted pursuant to Article 42.12 of the Texas Code of Criminal
Procedure (Revised Adult Probation and Parole Law of 1966), is a final conviction for the purposes of section 241(a) (11), Immigration and Nationality
Act, as amended, in the absence of evidence the court set aside the conviction

or dismissed the indictment in accordance with section 7 of Article 42.12.
(2) Respondent's claim that his mother—who was born in the United States in
1922 and taken by her parents at age 7 to Mexico where she resided until her
entry to this country in 1956—should be regarded as having constructive residence in the United States prior to respondent's birth in Mexico in 1945 for
the purpose of compliance with section 201(g) of the Nationality Act of 1940
On the ground she did not know where she was born until she received a copy
of her birth certificate in 1955, is rejected since respondent's mother makes no
claim in her testimony that she was not aware of her birth in the United States
and her marriage certificate issued in 1935 and respondent's birth certificate
(1945) both state she was born in the USA.
CHAEGIO:

Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251 (a) (11)1—Convicted
for illicit possession of marijuana.
ON Brum.r or BE8roriarra: Wellington Chew, Esquire

809 Bassett Tower
El Paso, Texas 79901

The respondent, a native and citizen of Mexico, appeals from an
order entered by the special inquiry officer on June 17, 1968 directing
his deportation to Mexico on the charge stated in the order to show
cause. Exceptions have been taken to the finding of alienage and deportability.
The respondent, an unmarried male alien, 22 years of age, entered
the United States as an immigrant through the port of El Paso, Texas
on or about December 2, 1960. He was convicted on March 14, 1968 in

806

Interim Decision #1886
Tarrant County Criminal Court No. 1 at Fort Worth, Texas for unlawful possession of marijuana. A record of the respondent's conviction has been entered in evidence as Exhibit 2. The special inquiry
officer in his decision of June 17, 1968 finds that alienage has been established and that the respondent is deportable as charged in the order
to show cause.
Counsel on appeal maintains that the respondent is a derivative

citizen and that there has been no final conviction since the respondent
was placed on probation and imposition of sentence suspended pursuant to Article 42.12 of the Code of Criminal Procedure, Texas.
We will first discuss the issue of the respondent's alienage. He was
born at Canitas, Zac., Mexico on November 1, 1945, the legitimate
child of Manuel Gonzalez, a citizen of Mexico and of Virginia De Lana,
a citizen of the United States (Ex. 7). The respondent's mother was
born at Knight's Landing, California on October 23, 1923 (Ex. 3).
She married the respondent's father at Caritas, Zac., Mexico on March
29, 1935. The respondent's mother was taken to Meals° by her parents
when she was seven years of age and she resided in Mexico until she
entered the United States in 1956.
The respondent's mother testified that she knew that she was a

United States citizen, born in the United States at the time she

married although she did not know where she was born at that time
(p. 18). She further testified that she obtained a birth certificate
"about 1a years ago" (1955) and "after I received my birth certificate
I remained in Mexico about a. year, for the reason my husband did not
approve of me coining over here because we had such a. large family and
did not have anybody to watch over this family" (p. 18). The respondent's mother was 33 years of age when she obtained her citizen's
identification card and entered the United States to reside.
The pertinent statute in effect when the respondent was born on

November 1, 1945 was section 201 (g) of the Nationality Act of 1940.
Section 201 (g) requires the citizen parent to have had ten years'
residence in the United States prior to the birth of the child, and at
least five of these ten years must have been after attaining the age
of 16 years. Since the respondent's mother resided in the United States
for seven years after her birth in California on August 3, 1923 and did
not return to the United States until 1956, some 11 years after the
respondent's birth, it is obvious that the respondent did not acquire
United States citizenship at birth through his citizen mother.
The respondent contends that his mother should be regarded as

having constructive residence in the United States prior to his birth
in order to comply with the requirements of section 201(g) of the

807

Interim Decision #1886
Nationality Act of 1940. He maintains that his mother did not know
where she was born until she received a copy of her birth certificate
from a sister in 1955; that for this reason she was unable to pursue her
claim to United States citizenship by obtaining a document of identity at the American Consulate in. Juarez, Mexico; that his mother
was financially unable to make the trip to the United States prior to
1956; and that his father was opposed to the respondent's mother
leaving her large family and entering the United States.
We find no support in the record for the respondent's argument
that his mother should be regarded as having established constructive
residence in the United States in order to comply with the provisions
of section 201(g) of the Nationality Act of 1940. The respondent's
mother maims no claim that she was not aware of her birth in the
United States. The testimony of the respondent's mother that she was
unable to obtain a birth certificate because she did not know where she
was born in the United States is not credible because both her marriage
certificate issued in 1935 and the birth certificate of the respondent
state that she was born in Knight's Landing, California, USA. The
factors urged by the respondent will not support a finding of constructive residence in the part of his mother in order to pass United
States citizenship to him under section 201(g) of the Nationality Act
of 1940. Cf., Matter of A—M—,7 1. & N. Dec. 332. We affirm the special
inquiry officer's conclusion that the respondent is an alien, a native
and citizen of Mexico.
The respondent maintains that his conviction for unlawful possession of marijuana is not final because his sentence was suspended and
he was placed on probation pursuant to the Adult Probation and
Parole Law of Texas (Article 42.12). The record of the respondent's
conviction shows that he was sentenced to confinement for two years,
imposition of sentence suspended and he was placed on probation upon
certain terms and conditions stated in the court's order.
The Texas Code of Criminal Procedure was revised by the legislature
in 1965 and a new Code of Criminal Procedure was adopted effective
January 1, 1966. The new code repealed all prior laws relating to
criminal procedure with certain exceptions which do not include
the Suspended Sentence Law of 1913 or the Adult Probation and
Parole Law of 1957 (Article 54.02). The Suspended Sentence Law,
former Article 776-781, was repealed and not reenacted in the new
code. This Board has held that a conviction was not final in Texas
when the defendant was treated under the Suspended Sentence Law,
Articles 766-767, 776-781 of the former code. Matter of E B ,
I. & N. Dec. 318. We have also held that when the defendant was
treated as an adult under the Adult Probation and Parole Law,
—

808

—

Interim Decision #1886
Article 781 (b), the conviction was a final one. Matter of R R , 7
I. & N. Dec. 478; Matter of M—D—, 9 I. & N. Dec. 172.
The Revised Adult Probation and Parole Law (Article 42.12) has
expanded the former law (Article 781(d)) but its provisions are
very similar to the former statute. "Probation" is defined in paragraph (d) of section 2 as meaning "the release of a convicted defendant by a court under conditions imposed by the court for a specified
period during which the imposition of sentence is suspended." (Emphasis supplied.) Under the new code, when probation is granted,
only the imposition of sentence is now suspended.% However, there is
a provision in section 7 of Article 42.12 which reads :
—

—

In case the defendant has been convicted or has entered a plea of guilty or a
plea of nolo contendere, and the court has discharged the defendant hereunder,
such court may set aside the verdict or permit the defendant to withdraw his
plea, and shall dismiss the accusation, complaint, information or indictment
against such defendant, who shall thereafter be released from all penalties
and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known to the court should the defendant
again be convicted of any criminal offense.

The judgment and order of conviction and probation was entered
against the respondent by the Criminal District Court No. 1 of Tarrant County, Texas on March 14, 1968. There is no evidence before us
that the respondent appealed his conviction or that the court has
discharged the respondent, set aside his conviction or permitted the
respondent to withdraw his plea. There is no evidence that the indictment has been dismissed pursuant to the provisions of section 7 of
Article 42.12 of the Texas Code of Criminal Procedure. We affirm
the finding of the special inquiry officer that the respondent was convicted on March 14, 1968 in the Criminal District Court No. 1 of Tarrant County, Texas for unlawful possession of a narcotic drug, to
wit, marijuana, contrary to the laws of Texas and that such conviction is final.
The respondent is ineligible for, discretionary relief and we affirm
the special inquiry officer's conclusion in this regard. An appropriate
order will be entered.

ORDER: It is directed that the appeal be and the same is hereby
dismissed.
a Suspension of imposition of sentence results in a final conviction (Matter of

0—, 7 1. & N. Dec. 559; cf., Matter of

7I. & N. Dec. 580).

809