Marrkn or C-

ID. VISA PETITION Proceedings
A-11760526
Decided by Board April 21, 1961
Illegitimate child—Portugal—Mere acknowledgment by natural father insufficient to constitute legitimation or adoption.
(1) Under Portuguese law "pertilhacao" or acknowledgment of a child born
out of wedlock unaccompanied by the marriage of the natural parents does
not result in 'legitimation (Matter of F— , 7 118). Nor does it constitute
the equivalent of legal adoption which is no longer authorized in Portugal
(cf. Matter of P— , 8-527).
(2) Massachusetts adoption decree obtained by petitioner (natural father)
for 17-year-old illegitimate son fails to qualify latter as ''child" within
meaning of section 101(b) (1) (E) of 1952 Act in view of requirement that
adoption must take place while child is under the age of 14.

BEFORE THE BOARD

DISCUSSION: The petitioner, a native of Portugal, a naturalized
citizen of the United States, 66 years old, male, has filed a petition to classify the status of the beneficiary for issuance of a nonquota or preference quota visa. The beneficiary, a native and citizen
of Portugal, 16 years old, male, is alleged to be the adopted son
of the petitioner. The visa petition was denied by the District
Director, Boston District, by order dated April 1, 1960, for the
reason that the petitioner adopted his son on January 8, 1960,
when he was 17 years of age; that since he was not adopted while
under the age of 14 years, he did not qualify as a "child" under
section 101(b) (1) (E) of the Immigration and Nationality Act;
that since he has not been legitimated, the beneficiary does not
qualify as a "child" under section 101(b) (1) (C) of the Act. We
originally considered this appeal from the order of denial on May 26,
1960, and in view of certain contentions raised by counsel, the case
was remanded for the introduction into e, Menne of

a purported

1955 Portuguese adoption decree; for the record to reflect whether
the beneficiary thereafter resided with the adoptive father; and that
consideration should be given to the question of whether there was
such an adoption as to qualify the beneficiary as an adopted child;
alternatively, it was directed that consideration should be given
242

to the question of whether the petitioner's Maccaehusetts adoption

of the beneficiary resulted in the latter's legitimation under the
laws of that jurisdiction or rendered it possible for him to be
legitimated thereunder prior to attaining the age of 18 years on
July 4, 1960.
The case is before us from the order of the District Director,
Boston District, entered January 3, 1961, in which the petition was
again denied for the reason that it lies not been established that
the beneficiary can qualify as a child of the petitioner under any
of the provisions of section 101(b) (1) of the Immigration and Nationality Act and is, therefore, not entitled to nonquota status under
the provisions of section 101(a) (27) (A) of the same Act. The
denial is accompanied by a comprehensive memorandum of decision
reflecting consideration and application of the law of Portugal and
of the law of Massachusetts in determining the beneficiary's status.
We deem it appropriate to summarize the facts and restate the rea
sons for denial of the visa petition.
The record establishes that the beneficiary is the natural on of

the petitioner and was born out of wedlock in Portugal on July 4,
1942. The petitioner and the mother of the beneficiary never subsequently intermarried. The birth certificate of the beneficiary
contains a notation thereon that the petitioner recognized the beneficiary as his son on August 4, 1955, in accordance with a procedure
known as perfilhaea-o, and the testimony of the petitioner is confirmatory. The only other legal step taken by the petitioner with regard to the beneficiary was the adoption of the beneficiary by the
petitioner by decree of the Probate Court, Bristol County, New
Bedford, Massachusetts, on January 8, 1960, when the beneficiary
was over 17 years of age.
The memorandum decision of the District Director contains extracts of the provisions of the Civil Code of Portugal as well as
extracts from legal authorities in Portugal relating to legitimation, adoption end perfilhaecto (acknowledgment or recognition).
Under Article 119 of the Portuguese Civil Code, a child born out of
wedlock may be legitimated by the intermarriage of the parents
(1) if said children are acknowledged (perfulhado) by the parents
in the marriage record; or a record of acknowledgment is made in the
birth certificate of the child, or in a will Or public (notarial) document, either prior or subsequent to the marriage; or (2) if the
children can prove their filiation through a judicial action and
judgment. The effects of legitimation commence, in any case, from
the date of the marriage. Since there has been no intermarriage of
the natural parents of the beneficiary, it follows that mere acknowledgment without such marriage does not result in the legitimation
of the beneficiary (Matter of P' , 7 118).
243

The memorandum of decision sets forth information supplied by
the Foreign Law Section of the Libra ry of Congress regardine. Ole
effect of perfilhacao or acknowledgment. Our order in Hatler
F—, supra, sets forth the pertinent provisions of the Portuguese Civil
Code regarding legitimation and filiation. Article 122 covers the
details of acknowledgment and, in summary, provides that e-, en adolterine offspring may under certain circumstances be acknowledged in
either a "secret" record in the Civil Register or openly with permission of the wife who is not the mother, and this gives the child
testamentary rights and some status. Even legitimation may he possible if the marriage with the other party is dissolved and intermarriage of the parents takes place. Only incestuous children are
denied the benefits of acknowledgment. Perfilhaotro, often erroneously translated by the layman as "adoption", is defined as signifying voluntary acknowledgment of a child, that is, an express declaration made by a man or woman to the effect that a certain
individual is his or her child. Judicial perfilhacao is filiation decreed by court judgment. The process of perfilhacao, unaccompanied
by a marriage entered into by the parents after the birth, carries
certain rights for the child, but is not equal to legitimation rights.
It, therefore, appears that the perffihaeao or acknowledgment of
a child in Portugal on August 4, 1955, without' the intermarriage of
the natural parents, did not constitute a legitimation of the beneficiary but merely gave him a status of a recognized child which
carried with it certain rights of inheritance and support. Nor does
perfilhacao or acknowledgment constitute adoption under Portuguese
law. The memorandum of law supplied by the Library of Congress
indicates that at present there is no adoption procedure available in
Portugal.' The status of filiation through acknowledgment or perfilhacao can no longer be equated with adoption. 2

Evidence has been submitted that the beneficiary was adopted by
the petitioner by decree of the Probate Court, Bristol County, New
Bedford, Massachusetts, on January 8, 1960. The beneficiary was
then 17 years of age and this adoption fails to meet the requirement of section 101(b) (1) (E) that for immigration purposes a child
must be adopted while under the age of 14 years. Chapter 190,
section 7, of the Massachusetts General Laws provides that an illegitimate child whose parents have intermarried and whose father has
acknowledged him as his child shall be deemed legitimate to the
SMITMA extent, as if horn in lawful wedlnek_ This provision of Massa1 Reference is made in the memorandum to a work by Dr. Goncalves, Direitos de familia e direitos das sucessoes, Lisbon, 1955, p. 296, which mentions
that the'Civil Code entirely abolished adoption and that its practice, through
mere sentiment, does not produce legal effects inherent to filiation.
'Matter of P—, 8-537.

chusetis law is similar to the pro -, sim of Portuguese law In that in
each case intermarriage of the natural parents is required!!
The conclusion is, th:arefore, reached that the beneficiary, the illegitimate child of the 'petitioner, has never been legitimated under
Poriu:zuese nor Massachusetts law; that he has never been adopted
under Fortugnase law; and that he does not qualify as a child
because when he was adopted in Massachusetts he was over the age
of 14 years. lie, therefore, does not qualify as a child for immigration purposes and is not eligible for either nonquota or preference
quota status. The appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismi ssed.
3 I n the case of Lopc,z; v. Downey,
884 Mans. 161, 181 N.E.2d - 181 (1050),
In which the claimants set forth that through their affiliation or acknowledgment r perfilhacao) by their father in Portugal they acquired inheritance
rights In Massachusetts as legitimate children of the deceased, the court stated
a great difference between a etatute which enabled a natirral
cult
child, when recognized by his parents, to inherit as a recognized' natural child
and a statute which legitimizes such a child; that the former is limited to
controlling the inheritance of property in that country and has no extraterritorial effect upon the devolution of property located in Massachusetts.

245


Interim Decision #2104

MATTER OF YEE

In Deportation Proceedings
A-11468455
Decided by Board November 8, 1971
(1) While a determination as to the commission of the substantive offense of
adultery is dependent upon the law of the state in which the act occurred,
local peculiarities of criminal procedure are not determinative. Hence, notwithstanding the law of Iowa (the State in which the acts took place)
does not provide for a criminal conviction for adultery unless the spouse
prosecutes and respondent's wife elected not to prosecute him, the conduct
of respondent, who fathered two illegitimate children by a single girl
while legally married to another woman, constitutes adultery. Therefore,
he is precluded by the provisions of section 101(f) (2) of the Immigration
and Nationality Act from a finding of good moral character during the requisite period for the purpose of establishing statutory eligibility for suspension of deportation [Wadman v. INS, 329 F.2d 812 (C.A. 9, 1964), distinguished; in the instant case, respondent was not separated from his
wife during the period in which he engaged in the adulterous acts].
(2) Respondent, who entered the United States as a nonimmigrant student
and who is charged with deportability under section 241(a) (9) of the Act
in that after entry he failed to comply with the conditions of his nonimmigrant status, is ineligible for the benefits of section 241(f) of the Act.
[Lee Fook Chuey v. INS, 439 F.2d 244 (C.A. 9, 1971), does not govern
outside that circuit; until the matter has been definitively resolved, the
opinion of the Attorney General in Matter of Lee, Int. Dec. No. 1960

(1969), will be followed.]
CHARGE:
Order: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9))—Nonimmigrant—failed to comply with conditions of status.
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:

Walter W. Rothschild, Esquire
227A East Fifth Street
Waterloo, Iowa 50703

The special inquiry officer, in his decision dated December 18,
1970, found the respondent deportable as charged, denied his
application for suspension of deportation under section 244 of the

785

Interim Decision #2104
Immigration and Nationality Act and denied his application for
voluntary departure. From that order the respondent appeals.
Since then he has filed an application for termination of proceedings under section 241 (f) of the Act. The appeal will be dismissed and the application for relief under section 241 (f) will be
denied.
The record relates to a 32-year-old married male alien, a native
of China and citizen of Canada. He entered the United States on
June 11, 1961 with a nonimmigrant visa as a student authorized
to remain until April 15, 1962. The record indicates that the
respondent attended school only until June 27, 1961, thereafter
taking unauthorized employment. Deportability was conceded and
the record in any event contains clear, convincing and unequivocal evidence of deportability.
The proceedings were subsequently reopened to permit the
respondent to make application for suspension of deportation
under section 244(a) (1) of the Immigration and Nationality Act.
The statutory prerequisites for the granting of that relief are (a)
physical presence in the United States for a continuous period of
seven years immediately preceding the date of application, (b)
good moral character during that period, and (c) a finding that
deportation would result in hardship to the alien or to his spouse,
parent or child, who is a United States citizen or lawful permanent resident. The special inquiry officer found that the respondent had met all criteria except for establishing good moral character for the requisite period.
The special inquiry officer held that the respondent could not
establish good moral character for the requisite period inasmuch
is he had fathered two illegitimate children by a single girl while
egally married to another woman. The special inquiry officer
'ound that this constituted adultery and that, according to section
01 (f) (2) of the Act, a person who has committed adultery
luring the requisite period is barred from a finding of good
noral character. We agree with the special inquiry officer and
Lphold his conclusion.
The contention of counsel is that the respondent's conduct did
of constitute adultery within the contemplation of the Immigraion and Nationality Act because the law of the state in which
he acts took place, Iowa, does not provide for a criminal convicLon for adultery unless the spouse prosecutes, and the respondnt's spouse in this case elected not to prosecute him. Section
02.1 of the Iowa Statutes, cited in counsel's brief, clearly pro786

Interim Decision #2104
vides, however, that "when the crime is committed by parties
only one of whom is married both shall be punished."
It is true that a determination as to whether there has been the
commission of adultery is dependent upon the law of the state in
which the act occurred, Matter of Pitzoff, 10 I. & N. Dec. 35
(BIA, 1962) ; Dickhoff v. Shaughnessy, 142 F. Supp. 535
(S.D.N.Y., 1956). However, we are of the opinion that this rule
relates only to the issue of the existence of the substantive
offense, and not to questions of local pecularities of criminal procedure. Otherwise, the Congressional desire for uniformity of
application of the Immigration and Nationality Act would be
frustrated.
Counsel's reference to the case of Wadman v. INS, 329 F.2d
812 (9 Cir., 1964) is inapposite. In that case the court declined to
find adultery where the extramarital intercourse was not of such
a nature as to tend to destroy an existing marital relationship. In
Wadman the alien's wife had deserted him and left the country.
This is readily distinguishable from the present case, because the
respondent was not separated from his wife during the period in
which he engaged in such acts.
We accordingly agree with the decision of the special inquiry
officer to deny suspension of deportation because the respondent
could not establish good moral character for the requisite period.
We also approve his decision to deny voluntary departure for
failure to establish good moral character for the five years immediately preceding his application.
On April 23, 1971, the respondent's counsel submitted an application for termination of proceedings pursuant to section 241 (f)
of the Act. 1 His application was discussed during oral argument.
Counsel pointed out that the respondent has four legitimate
United States citizen children in addition to his two illegitimate
ones. It is counsel's claim that the fraud necessary to bring section 241 (f) into play is contained in the fact that the respondent,
who had entered as a nonimmigrant, actually concealed his intention to remain in the United States as an immigrant. The fact
that the respondent had used an assumed name under which he
Section 241(f). The provisions of this section relating to the deportation
of aliens within the United States on the ground that they were excludable
at the time of entry as aliens who have sought to procure, or have procured
visas or other documentation, or entry into the United States by fraud or
misrepresentation shall not apply to an alien otherwise admissible at the
time of entry who is the spouse, parent, or a child of a United States citizen
or of an alien lawfully admitted for permanent residence.

787

terim Decision #2104
quired Canadian citizenship is not germane to the resolution of
is appeal.
During oral argument counsel acknowledged that the respondit had not been charged with excludability under section
L2 (a) (20) as an immigrant without a visa nor under section
L2 (a) (19) for fraud or misrepresentation. He pointed to the
Ise of Lee Fook Chuey v. INS, 439 F.2d 244 (9 Cir., 1971), as
uthority for the proposition that the specific charge lodged
gainst the alien is not important. Indeed, that case does purport
) include any deportation charges resulting directly from misrepesentation regardless of the section of the Act under which it is
rought, provided the alien was "otherwise admissible" as proided in 241(f).
The Lee Fook Chuey decision has been endorsed and followed
two subsequent decisions of the Ninth Circuit, United States v.
)suan-Picos, 433 F.2d 907 (9 Cir., 1971), and Vitales v. INS, 443
■'.2d 343 (9 Cir., 1971). A certiorari petition has been filed to
•eview the latter, INS v. Vitales, No. 71-431. Thus, the Ninth
circuit's construction of section 241(f) may soon be definitively
•eviewed. We are aware of no other circuit which has followed
,he Ninth Circuit's holding in Lee Fook Chuey. Until the matter
'Las been definitively resolved, we are bound to accept the Attorney
3eneral's decision in Matter of Lee [Fook Chuey], Interim Deci3ion No. 1960 (A.G., 1969). In fact, another court, in Gambino v.
INS, 419 F.2d 1355 (2 Cir., 1970), cert. denied 399 U.S. 905, specifically endorsed the Attorney General's holding in Matter of Lee
[Fook Chuey], supra.

The Attorney General's holding in Matter of Lee [Fook
was that an alien who entered the United States
without inspection upon a knowingly false claim of United States
citizenship, thereby circumventing the visa-issuing process, is
ineligible for relief under section 241 (f), since he is not "otherwise admissible" at time of entry. The Attorney General's opinion
is consistent with two court decisions, Ferrante v. INS, 399 F.2d
98 (6 Cir., 1968), and Tsaconas v. INS, 397 F.2d 946 (6 Cir.,
1968), both of which denied section 241(f) relief to 'aliens who
had entered as nonimmigrants.
The case of Muslemi v. INS, 408 F.2d 1196 (9 Cir., 1969), is
relied upon by counsel in support of his claim that section 241(f)
relief is available to a nonimmigrant. However, as the appellate
trial attorney correctly pointed out, in that case the charge was
not that the immigrant had violated the conditions of his nonimmigrant status, as is charged in the present case, but that he
Chuey], supra,

788

Interim Decision #2104
entered without an immigrant visa. We note that the court
merely remanded the Muslemi case for an administrative determination of whether the alien was "otherwise admissible" at the
time of his entry.
There is an additional reason why we are not bound to follow
the Ninth Circuit's holding in the Lee Fook Chuey case, supra. As
we stated in Matter of Amado and Monteiro, Interim Decision
No. 1951 (BIA, 1969), "the fact that a lower federal court has
rejected a legal conclusion of this Board does not require us to
recede from that conclusion in other jurisdictions." The same
principle would apply with at least equal vigor to an opinion of
the Attorney General, such as the Attorney General's decision in
Matter of Lee [Fook Chuey], supra.

Hence, we shall affirm the special inquiry officer's decision to
deny the respondent suspension of deportation and voluntary
departure. We also shall deny his application for termination of
proceedings under section 241 (f). The appeal will be dismissed
and the following order will be entered.
ORDER: The appeal is dismissed.

789


Interim Decision #1783

MATTEll

or Gm:1mm

In Visa Petition Proceedings
A-17653997

Decided by District Director July 5,1967
Since a

auras is a member of the professions within the meaning of section
101(a) (32) of the Immigration and Nationality Act, as amended, it she has
been awarded a diploma or certificate signifying successful completion of a
program for professional nurses conducted by an accredited hospital or independent school or has attained an associate or baccalaureate degree in
nursing in a junior college, college or university, a visa petition is granted to
accord preference classification under section 203(a) (3) of the Act, as a
professional nurse, to beneficiary who received a. diploma upon the successful
completion of a 5 year course of study at an accredited school of nursing in
the Philippines.
-

The petition was filed by the beneficiary for third preference chiselRegion as a member of the professions based upon her qualifications as
a professional nurse.
She is married, a native and citizen of the Philippines, presently
residing with her family in the Philippines. She attended the University of the Philippines School of Nursing from 1954 to 1957,
graduating with a diploma in nursing. She was licensed as a registered
nurse by She Board of Examiners for Nurses, Republic of tho Philippines, in September 1957. She has been employed in various nursing
capacities in the Philippines from 1957 to date.
Section 203(a) (3) of the Act, as amended, relates to issuance of
immigrant visas "to qualified immigrants who are members of the
professions, or who because of their exceptional ability in the sciences
or arts will substantially benefit prospectively the national economy,
cultural interests, or welfare of the United States." The term "profession" is defined in section 101(a) (32) of the Act as including but
not being limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary schools, colleges, academies, or
seminaries.
The Occupational Outlook Handbook, 1966-1967 edition, published
by the Bureau of Labor Statistics, United States Department of
418

Interim Decision #1783
Labor contains on pages 122 through 125 a discussion of the employment of "Registered Professional Nurses". In discussing the training
and qualifications for this work, the Handbook includes the following
statement:
Three types of educational programs—diploma, baccalaureate degree and
associate degree—offer the basic education required for careers in professional
nursing.. Diploma programs are conducted by hospital and independent schools

and usually require three years of training; bachelor's degree programs usually
require four years of study in a college or university, although a few require Ave
Years; associate degree programs in junior colleges require approximately two
years of nursing education. (Emphasis added.)

By way of contrast to the professional nurse, the Handbook in discussing the employment of "Licensed Practical Nurses" indicates, at
page 98, that while high school graduation is required by some states
in this country as a prerequisite to enrollment in state-approved
training programs for practical nurses, in other states candidates with
only eighth or ninth grade educations can enroll. The approved training courses are largely public school courses offered as part of vocational and adult education programs, while some are given at junior
colleges, local hospitals, health agencies and private educational institutions, and are usually of one year's duration. The Handbook makes
the following comment concerning the education and training of
practical nurses as compared with that of professional nurses:
Practical nurses cannot advance to positions as registered professional nurses,
however, unless they undertake the years of additional schooling which are
required in order for them to qualify for such work. (Emphasis added.)

Chapter 4793 of the Ohio Revised Code contains the requirements
and recommendations for nursing, and for schools of nursing in that
State. It provides that an applicant for the examination for registration as a nurse must be graduated from an approved school of nursing.
There is no requirement that such applicant must possess a baccalaureate in nursing.
The American Nurses' Association, established 1898, represents
licensed professional nurses, and is recognized by all State Boards
of Nursing, as an authoritative qualifying body for this field. An
information booklet of that Association on Examination for State
Licensure to Practice Nursing, states on page 4:
Since the purpose of the written examination is to determine minimum competency for safe practice, the same examination is used for all graduates, although preparation may vary in diploma, associate degree, and baccalaureate
programs.

Ordinarily, recognition of status as a member of the professions
is attained through completion of high education, generally at the
419

Interim, Decision #1783
baccalaureate level or higher, by virtue of which the individual becomes qualified to enter a particular field of endeavor. However, registered nurses have traditionally been regarded as professional persons. Authoritative sources such as various state licensing authorities
and the American Nurses' Association which are interested in maintaining high standards for practicing this profession, require a
specified amount of education and training, not necessarily including
a baccalaureate degree, for recognition as a professional nurse. As
cited from the Occupational Outlook Handbook, supra, the Department of Labor has described the qualifications for entry into the profession of nursing. On the basis of these considerations it is concluded
that a nurse may be considered as a member of the professions if she
has been awarded a diploma or certificate signifying successful completion of a program for professional nurses conducted by an accredited hospital or independent school, or has attained a baccalaureate degree or an associate degree in nursing, as described in the Occupational Outlook Handbook
Section 203(a) (8) of the Immigration and Nationality Act, as
amended, provides that third preference aliens, inter alia,, must obtain
a certification by the Secretary of Labor, pursuant to section 212(a)
(14) of that Act, to the effect that qualified workers in the United
States are unavailable and that the aliens' employment would not have
an adverse effect on wages and working conditions of workers simiEarly employed in this country. Under 8 CFR 204.2(f) the Secretary
of Labor's determination with respect to the issuance of the required
certification is obtained before any third preference petition may be
approved. The required certification has been issued in the instant
case.
The evidence in this case establishes that the beneficiary received a
diploma upon the successful completion of a three-year course of
study at an accredited school of nursing in the Philippines. Under the
criteria discussed above she is regarded as a professional nurse.
Since she is qualified as a nurse for classification as a member of the
professions and the required labor certification has been issued, she is
entitled to preference status under section 203 (a) (3) of the Immigration and Nationality Act.
ORDER: It is ordered that the petition to accord the beneficiary
third preference classification be and hereby is approved.

420


ALArrEn of D—

In EXCLUSION Proceedings
A-11149738
Decided by Board April

4, 1962

Crime involving moral turpitude-18 U.S.C. 545—Smuggling with intent to defraud the United States.

Conviction for smuggling with intent to defraud the United States in violation of 18 U.S.C. 545 is conviction of a crime involving moral turpitude.
EXUL

[5 U.S.C. 1152 (a ) (9 ) J — convicted cf crime involving moral turpitude, to wit, smuggling.

: Art of 1902-3eellou 212(a) (9)

BEFORE THE BOARD

DISCUSSION: On January 19, 1962, the special inquiry officer
ordered the appellant excluded and deported from the United States
on the above-indicated ground. The appeal from that decision,
which brings the case before this Board for consideration, will be
dismissed.
The record relates to a 31-year-old unmarried male alien, a native
and citizen of Canada. On October 29, 1958, he was admitted to
the United States in the status of a commuter. On November 20,
1961, in the United States District Court, Eastern District, Michigan,
Southern Division, on his plea of guilty, the appellant was convicted
of smuggling whiskey into the United States in violation of 18
U.S.C. 545, and was sentenced to two years of probation. On Janu-

ary 18, 1962, when he applied for admission as a commuter, he was
referred to a special inquiry officer for hearing in exclusion proceedings, with the result here appealed from.
The basic issue before us is whether the crime of which the appellant stands convicted involves moral turpitude. The special inquiry
officer has held that it does, relying fundamentally on a 1938 court
decision, infra.. The appellant, however, contends that the inherent
nature of the offense has been changed by a subsequent enactment of
the statute in different language.

Thus, then, is the issue joined.

The appellant, having waived prosecution by indictment, was proceeded against by way of an information charging—
That on or about March 7, 1961, Detroit, Michigan, in the Eastern District
of Michigan, Southern Division, FI—D--, did knowingly and willfully, with
605

intent to defraud the United States, import and bring into the United States
via the Ambassador Bridge, twenty-four bottles of whiskey, to wit: twentyfour bottles of whiskey labeled in part "Seagr1ms 83", which whiskey was
imported and brought into the United States contrary to law in that no invoice was presented to the United States Collector of Customs and no entry
filed as required by sections 1481 and 1484, Title 19, U.S.C.; in violation of
section 545, Title 18, U.S.C.

Accordingly, as pointed out by the special inquiry officer, the
appellant's conviction was had under the first paragraph of 18 U.S.C.
545, entitled "Smuggling Goods into the United States," which reads
as follows:
Whoever knowingly and willfully, with intent to defraud the United States,
smuggles, or clandestinely introduces into the United States any merchandise
which should have been luvoieed, or makes out or passes, or attempts 1'o

pass,

through the customhouse any false, forged, or fraudulent invoice, or other
document or paper. . . 1 (Emphasis supplied.)

The special inquiry officer's holding that respondent's conviction
thereunder was for a crime involving moral turpitude was based,
in great part at least, on the August 20, 1958, decision of the Court
of Appeals for the Fifth Circuit in the case of Guarneri v. Kessler,
98 F.2d 580. That case involved an alien who, along with 15 other
named persons, was accused of conspiring to smuggle, import and
bring into the United States some 6,000 gallons of alcohol lit for,
and intended for, beverage purposes, and with the substantive offenses of smuggling and concealing illegally imported alcohol after
it came into the United States, all with intent to defraud the United
States, in violation of 19 U.S.C. 1593(a) [the Tariff Act of 1930],
which then read:
If any person knowingly and willfully, with intent to defraud the revenue

smuggles, or clandestinely introduces into the United
States any merchandise which should have been invoiced, or makes out or
passes, or attempts to pass, through the customhouse any false, forged, or
fraudulent invoice, or other document or paper, every such person, his, her,
or their alders and abettors, shall be deemed guilty of a misdemeanor, and
on conviction thereof shall be fined in any sum not exceeding $5,000, or Imprisoned for any term of time not exceeding two years, or both, at the discretion of the court. (Emphasis supplied.)
of the United States,

The thrust of the appellant's argument is that the omission of
the words "the revenue" changes the essential element of the offense to such an extent that it no longer involves moral turpitude.
It is his contention that, in view of the absence of the words "the
revenue," the present offense does not contemplate an actual loss of
Government income. He cites as authority for this proposition the
case of United States v. McKee, 220 F.2d 266 (C.A. 2, 1955).
The McKee case, supra, involved persons indicted for conspiracy
1

Shall be fined not more than $5,000 or imprisoned not more than two years,

or both.

under the conspiracy statute, 18 U.S.C. 371, to smuggle, import, ,
conceal, and transport a snowmobile in violation of the smuggling
statute, 18 T_I.S.C. 545. In discussing the latter offense, the Court
of Appeals for the Second Circuit, in its decision of March 3, 1955,
said, in part:
We have earlier had occasion to consider the element of the crime here
involved. In United States v. Kushner, 2 Cir., 135 F.2d 668, 670, certiorari
denied _Kushner v. United States, 320 U.S. 212, 63 S.Ct. 1449, 87 L.Ed. 1850,
we held, somewhat reluctantly, that the then wording of the statute, "intent
to defraud the revenue of the United States," contemplated an actual loss of
government income. Since that time the statute has been amended to delete
the specific reference to "revenue." We therefore hold that under the present
section, 18 U.S.C. § 545 supra, it is no longer necessary to show that the item
or items introduced clandestinely into the United States were subject to duty.
Adequate reporting of merchandise being brough:. into the country is absolutely
necessary to the eufurceuteM of the customs laws, awl failure to comply with
these requirements is just as criminal as failure to pay the customs fees. See
United States v. Twenty-Five Pictures, D.C.S.D. N.Y., 260 F. 851.

The Kushner case, supra, involved a person who, with four codefendants, was accused, inter (ilia, of violating former 19 U.S.C.
1593(a), prohibiting smuggling "with intent to defraud the revenue
of the United States," by importing and assisting the importation
of undeclared gold bullion from Canada. The Court of Appeals
for the Second Circuit in its May 5, 1943, decision in that case,
although not free from doubt on the point, inclined to the view
that an intent to deprive the Government of revenue must he held
an ingredient of the crime defined in former 19 U.S.C. 1593(a).
That is, the Court ruled that no conviction under said section could
be had absent proof of financial loss to the Government, at least
intended. However, in so ruling the Court pointed out (p. 671)
that the expression "intent to defraud the revenue of the United
States" (emphasis supplied) was a hardly grammatical expression
the meaning of which was not wholly clear.

The case of United States v. Twenty-Five Pictures, supra, involved forfeiture proceedings as to paintings allegedly brought into
the United States in violation of section 3082 of the United States
Revised Statutes (Comp. St. 5785) providing that:
If any person shall fraudulently or knowingly import or bring into the
United States, or assist in so doing, any merchandise, contrary to law, • * *
such merchandise shall be forfeited. 2
2 This section later became 19 U.S.C. 1593(b), which read: "If any person
fraudulently or knowingly imports or brings into the United States, or assists
in so doing, any merchandise contrary to law, or receives, conceals, buys, sells,
or in any manner facilitates the transportation, concealment, or sale of such
merchandise after importation, knowing the same to have been imported or
brought into the United States contrary to law, such merchandise shall be
forfeited and the offender shall he fined in any sum not exceeding $5,000
nor less than *50, or be imprisoned for any time not exceeding two years,
or both."

607

The portion of the Court's decision therein which is here pertinent states:
* * if the addition of the word "fraudulently" (though in the disjunctive)
requires proof of an intention to defraud the Government, the requisite fraud
need not consist of deprivation of customs revenues. The collation of information in order to pass upon the classification of merchandise,.and the question often most difficult us to whether it is dutiable, and, if so, just what
duty is imposed, is an important function of the revenue department of the
Government. Without such information, the Customs Act cannot really be
enforced or the revenues collected.
* * * To deprive the United States of the information it was entitled to,
and of the opportunity for investigation and classification afforded to it • •*
was to defraud the United States. * * * it is enough to defraud the Government if an act is done calculated to obstruct or impair its efficiency and
eotroy the value of its operations and reports as fair, impartial, and reacnn-

ably accurate *

Careful consideration of the foregoing judicial precedents convinces us of the lack of merit in the appellant's theory that the
absence of the words "the revenue" from the statute as presently
written changes the inherent nature of the offense. In our opinion
the existence vet non of actual financial loss (income) to the Government is not dispositive of the question of whether the offense
involves moral turpitude. We so hold.
The case of United States v. Kushner, supra, pointed up that the
statutory phrase "intent tn defraud the revenue of the United
States" constituted a hardly grammatical expression the meaning
of which was not free from doubt. The transfer of this offense
from 19 U.S.C. to its present position in the statutory scheme
was accomplished as a part of the revision, codification, and enactment into positive law of all applicable criminal laws in effect
April 15, 1947, which became Title 18, United Stales Code. The
revision aspect thereof meant the substitution of plain language

for awkward terms and the elimination of archaic language employed in the old statutes (H. Rept. No. 304, 80th Congress, 1st
session). Accordingly, and assuming as we must that the Congress
was aware of the Court decision pointing up the unfortunate phrasing of former 19 U.S.C. 1593(a), we have an adequate explanation
of the absence of the words "the revenue" from the statute in its
present form.
We cannot agree with the appellant that the omission of those
words removes from the statute now on the books the element essential to constitute the offense as one involving moral turpitude. The
case of United States v. McKee, supra, merely stands for the proposition that a conviction under the statute no longer requires proof
that the accused intended financial loss to the Government to result
from his contemplated action. But this does not delete the element
of fraud from the crime. As was pointed out by Judge Hand in the
608

1!.'ttre6 'Supra, the element
case of Unt`hql Stu-Z6 - -v. Twenty-1 7 iv6
of deprivation of revenue (financial loss) is not an essential ingredient of fraud; but that fraud can consist of impairing or
rendering unworkable an important function of a department of the
Government.; and, specifically, that to deprive the United States
of information it is entitled to, and of the. opportunity for investigation, is to defraud the United States. That is, it is enough to
defraud the Government if an act is done, calculated to obstruct
or impair its efficiency and destroy the value of its operations. Support for our ruling on this point, if same is needed, can be found in
the decision of the Supreme Court of the United States in the case
of Jordan v. DeGeorge, 341 U.S. 223, wherein it was stated:
. . the decided cases make it plain that crimes in which fraud was an

ingredient have always been regarded as involving moral turpitude.

Finally, we find unavailing appellant's alternative argument that
the statute under which the appellant was convicted is divisible,
and that thereunder he could have been convicted, in effect, of
failing to file invoices or entry documents for merchandise which
is not a crime involving moral turpitude. We here need not speculate as to the possible nature of the offense spelled out in the second
portion of the statute, to wit, filing of invoices and entry documents.
The reason is that the inherent nature of the crime of which this
appellant stands convicted is established by the record of his conviction, including the inforination (indictment). That is, where,
as here, the record of conviction clearly shows intent to defraud the
United States involved in the commission of a crime contained in a
divisible statute, we are justified in basing thereon a conclusion that
the crime involved moral turpitude (Matter of C—, 5-65, at p. 71).
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

GrA377 ca

so

609


Interim Decision 7z loo

MATTER OF WU

In Section 211(b) Proceedings
A-8853045
Decided by Regional Commissioner February 27, 1973
Despite applicant's relatively short stays in the United States, denial of his
application for a reentry permit under section 223, Immigration and Nationality Act, on the ground that his absence abroad was not temporary was
incorrect where he has maintained ties in this country, his absences were in
connection with his employment abroad for an American firm, and an
application under section 316(b) of the Act to preserve continuity of his
residence for naturalization purposes while employed abroad by such firm had
previously been approved. Hence, he never lost his lawful permanent resident
status and was entitled to admission as such upon application on October 28,
1972, with a nunc pro tune waiver of the returning resident visa requirement
pursuant to section 211(b) of the Act.
ON BEHALF 0FAPPLICANT: Julius Kaplan, Esquire

1218 Sixteenth Street, N.W.
Washington, D.C. 20036

The District Director, Washington, D.C., granted the application
and then pursuant to 8 CFR 103.4 certified this case to me for
review and final decision.
The applicant is a native and citizen of China, born November 3,
1933. He first entered the United States on February 13, 1955, as a

nonimmigrant student. He has received a Bachelor of Arts and
Master of Arts degrees from universities in the United States.
Under section 245 of the Act, his status was adjusted to that of
lawful permanent resident on January 27, 1967. Since September
5, 1967, he has been and continues to be employed in an executive
capacity by the International Basic Economy Corporation (IBEC).
The latter is an American diversified operating company with
subsidiaries abroad. It is substantially involved in the development of private enterprise overseas. During April 1968, IBEC
assigned applicant to Japan to coordinate various matters involving finance, public relations, marketing programs, and the development of foreign trade and commerce of the United States.
On February 1, 1968, applicant filed with the District Director of
290

Interim Decision #2186
the Service at New York an Application to Preserve Residence for
Naturalization Purposes under Section 316(b) of the Act. This
application was approved on February 9, 1968, by the following
order signed by the District Director:
It is ordered that the within-named applicant be granted the benefits applied
for in this application to cover absence from the United States from the date
stated therein to an indefinite date thereafter so long as he remains in the
employment and is absent for the purpose alleged therein.

Section 316 of the Act sets forth the residence requirements that
a lawful permanent resident must meet to establish eligibility for
naturalization as a United States citizen. Section 316(b), in part,
provides for certain exceptions to the required continuous residence available to certain classes of aliens, one such class being
aliens employed by an American firm or corporation engaged in
whole or in part in the development of foreign trade or commerce
or a subsidiary thereof more than 50 per centum of whose stock is
owned by the American firm or corporation.
The record shows that on January 27, 1968, applicant was issued
a reentry permit pursuant to section 223 of the Act; that since his
departure from this country during April 1968 he has been
readmitted to the mainland United States on five occasions as a
returning laviful resident upon presentation of a valid reentry
permit; that on January 11, 1972, he entered at Agana, Guam for
the purpose of applying for a new reentry permit because

the

permit he was then holding would expire on January 15, 1972.
The District Director at Honolulu, Hawaii denied the application
for a new reentry permit on the ground that applicant failed to
establish he had a permanent residence in the United States or
that his stay abroad was temporary within the meaning of section
223 of the Act. The Regional Commissioner having jurisdiction
over the Honolulu District of the Service dismissed the appeal
from denial of the application. The Regional Commissioner concurred in the finding that applicant's absence from this country

was not temporary. He pointed out that section 223 of the Act
states in part "Any alien lawfully admitted to the United States
. . . who intends to depart temporarily from the United States
may make an application to the Attorney General for a permit to
reenter...." and cited Matter of Sehonfeld, 10 I. & N. Dec. 669. The
Regional Commissioner found that Matter of Manion, 11 I. & N.
Dec. 261, relied on by counsel for applicant, was not applicable.
The applicant applied for admission to the United States at
Washington, D.C. on October 28, 1972. His inspection was deferred.
During the course of the further inspection, he continued to claim
that he had not lost his status as a lawful permanent resident. He
filed an Application for a Waiver of a Returning Resident Visa
291

Interim Decision #2186
under Section 211(b) of the Act. As stated above, the District
Director, Washington, D.C. approved the waiver application and
found applicant admissible as an immigrant lawfully admitted for
permanent residence who is returning from a temporary stay
abroad.
Additional evidence is before me which was not of record at the
time applicant's last application for a reentry permit was denied.
It includes copies of applicant's federal income tax returns for the
years 1968 through 1971. He filed those returns as a resident alien.
Ii would have been to his pecuniary advantage to file as a
nonresident alien. Evidence has been submitted that since February 1968, he has maintained a checking and a savings account
with a bank in the United States as well as an account with a
large brokerage firm in this country.
In Matter of Sehonfeld, supra, the applicants were a mother and
14-year old daughter who within three weeks after admission
applied for reentry permits to return to their home country about
one month after their first arrival. The permits were issued.
Subsequently two more permits were issued to them. At the time
of their last application for reentry permits, it was found that
during the four year period following their initial admission for
permanent residence they had resided in this country less than
two months. Clearly, they had not established an actual residence
in this country and their proposed departure was not temporary.
I do not believe that the facts in the instant case come within
the purview of Schonfeld. They do substantially come within the
ambit of Matter of Manion. In Manion, the applicant was admitted
for lawful permanent residence on January 15, 1959. On and before
that date he was employed abroad in an executive capacity by an
American firm engaged in international trade. On January 19,
1959, December 21, 1959, January 10, 1961, February 7, 1962 and
April 15, 1963, he applied for reentry permits for the purpose of
proceeding abroad on business in the same employment. Each of
these applications was approved. He was still so employed in 1965
when he applied for another reentry permit.
When his employment permitted, Manion intended to return to
and remain in the United States and acquire United States
citizenship. He was found eligible for and was issued another
reentry permit in 1965. Manion was divorced and his children lived
in the United States with his sister.
The wife of the applicant in the instant case is a lawful
permanent resident. One of their children was born in this country
and has a United States passport. A second child is the beneficiary
of an approved second preference visa petition filed by the applicant. This will facilitate the issuance of an immigrant visa to the
292

Interim Decision #2186
child when the applicant and his family return to reside in the
United States upon termination of his assignment abroad by his
employer.
There is no question that the applicant is otherwise admissible
to this country under our immigration laws. Unlike Schonfeld, he
and his wife did establish a residence in the United States prior to
his going abroad to serve in an executive capacity for IBEC.
I believe one purpose of section 316(b) was to benefit an American firm engaged in developing international trade by permitting
its lawful permanent resident aliens to retain the continuity of
their residence for naturalization purposes while employed abroad

by such firm. It is inconsistent with the objectives of section 316(b)
to hold that an alien who has been found eligible for the benefits
thereof has lost his status as a permanent resident solely because
of his extended absences abroad in the employment of the American firm. The applicant herein has at all times taken every action
available to him under the applicable statutes to retain his status
as a lawful permanent resident and to preserve his continuity of

residence for naturalization as a citizen of the United States.
The applicant applied for admission to the United States on
October 28, 1972, for the precise purpose of testing his admissibility
as a returning resident. On or about November 12, 1972, before a

decision had been made, the applicant departed from the United
States after informing the district director that the departure was

necessitated by urgent business matters. Ordinarily, the applicant's departure would be considered to have rendered moot his
application for admission. However, under the circumstances of
this case, and particularly since the district director recognized
that the alien's last application for a reentry permit may have
been denied erroneously, the district director agreed to consider
the application for admission, and I concur in that determination.

I have carefully reviewed the entire record, including representations by counsel for applicant. Based upon the evidence before
me, I find applicant's absences from this country have been and

continue to be temporary and that he has never lost his status as
a lawful permanent resident. Accordingly, the following order will
be entered.

ORDER: It is ordered that the application under section 211(b)
of the Act for a waiver of the returning resident visa be and the
same is hereby approved nuns pro tune as of October 28, 1972.
It is further ordered applicant's admission as a lawful permanent
resident be recorded as of October 28, 1972.

293


Interim Decision *1618

FLATTER OF MONTEItAN
In Section 245 Proceedings
A-13533807
Decided by District Director Jurae 24, 2966
An alien who was born in the 'United States and who, following his expatriation abroad,' was paroled into the United States, is statutorily eligible for
adjustment of status pursuant to section: 245(a) at the Immigration and
Nationality Act, as amended, notwithstanding the-provisions of subsection
(c) of section 245 of the Act, as amended by P.L. 89-288, precluding such relief to an alien who is a native of any country of the Western Hemisphere
or of any adjacent inland named in section 101(b) (5).

Discussion: The applicant is a 52-year-old married, male alien.
He was born in Jersey City, New Jersey, on September 26, 1913.
He went to *ranee with his parents in 1921 and has since resided
there. He lost his 'United States citizenslip by voting in political
elections in France, and has acquired French nationality. He last
arrived in the United. States on November 24, - 1965 at which time
he was paroled pursuant to section 212(d) (5) of the Immigration
and Nationality Act. He applied on November 29, 1965 for the
status of a lawful permanent- resident.alien under section 245 of the
Immigration and Nationality Act, as amended.
Subsection (a) of amended section 245 (8 U.S.C. 1255),. provides:
The status of an alien, other than an alien crewman, who was inspected and
admitted or paroled into the United States may be adjusted by the AttorneyGeneral, in his discretion. and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent residence if (1) the alien:
makes an application for such adjustment, (2) the alien is eligible to remivean immigrant visa and is admissible to the United States for permanent rest-deuce, and (8) an immigrant visa is immediately available to him at the timehis application is approved.

-

The required medical examination and an examination by an officer-

of this Service have disclosed no ground of inadmissibility. A. .
currently-valid approved visa petition accords the applicant thirdpreference classification under section 208(a) of the Immigration:
717

Interim Decision *1618
and Nationality Act, as amended. An immigrant visa is immediately available to him under the quota for Prance to which he is
chargeable under section 202(b) (8) of the Act.
The sole *re is whether by reason of his birth in the United
States he is precluded from the benefits of section 245(a) by the
restrictive 'provisions of section 245(c) of the Act, which, as amended. by section 13 of the Act of October 3, 1965 (Public Law 89-236,
79 Stet. 911), now reads:
The brovhdons of this section shall not be applicable to any alien who is a
native of any country of the Western Hemisphere or of any adjacent island
named in section. 101(b) (5). •

In amending section 245(c), Congress deleted the words "ccatigaous to the 'United States" and substituted therefor the phrase "of
the Western Hemisphere." House Report No. 745 (89th Congress,
1st Session) dated August 0, 1905 to accompany S.R. 2580 sets forth
on page 22:
Section 245 of the Immigration and Nationality Act, relating to adjustment of
states of aliens in the United States, is amended to prohibit the adjustment of

natives of the Western Hemisphere now referred to as "special immigrants".
The Immigration and Naturalization Service has been faced with a recurring
problem in cases of natives of Central and South America who come to the
United States as nonimmigrant visitors and promptly seek permanent residence status under Section 245.

Section 245(c), as initially reported out of the Committee on the
Judiciary, prohibited the adjustment of status of any person born
in any independent foreign country of the Western Hemisphere or
in the Canal Zone or the spouse or child of any such person if
accompanying or following to join him. It was amended on the
floor of the House of Representatives so as to preclude granting its
benefits to natives of any country of the Western Hemisphere or any
adjacent island. named in section 101(b) (5) of the Immigration and
Nationality Act. This change was to make clear that the benefits
of the section could not be utilized by a native of any foreign country
of the Western Hemisphere whether or not independent.
As used in the Act, the connotation of foreign country is evident.
The term "special immigrant", referred to in House Report No. 745,
mentioned above, is defined in section 101(a) (27) (A) to mean "an
immigrant who was born in any independent foreign country of the
Western Hemisphere or in the Canal Zone . . . (Underscoring supplied)." A further indication that the term "Western Hemisphere"
was not intended to include the United States is contained in section
21 (0) of Public Law 89-236 which provides that 'the Select Com718

Interim Decision' 44618
mission on Western Hemisphere Immigration, established by that
Act, is to make recommendations concerning "immigrition to the

United States from the nations of the Western Hemisphere".

Section 245 of the Immigration and Nationality Act was a new
provision of law intended to obviate the necessity of a departure
• from the United States and the making of a new entry in the cases
of certain aliens who were in the United States temporarily and who
desired and were eligible to acquire the status of permanent residence. ("Commentary on the Immigration and Nationality Act" by
Walter Besterman, Legislative Assistant, Committee on the Judiciary, House of Representatives. U.S. Code, Congressional and Administrative News, October 20, 1953.) When we read section 245,
as amended, in the context of its legislative and statutory history,
we must conclude that the amendment of subsection (c) by the Act
of October 3, no was not intended to, and dues not preclude the
grant of the benefits of the section to a person born in the United
States.
ORDER: It is ordered that the application for smuts as a permanent resident under section 245 of the Immigration and Nationality
Act, as amended, be granted.

719


Interim Decision #1620

Maze ox

DINGENA

In Deportation Proceedings
A-11168098
Deckled by Board July 21, 190
Conviction of the offense of sexual intercourse with a female child (under Id
years of age) in violation of section q4.4.10(2) of Wisconsin Statutes is conviction of a crime involving moral turpitude.
CZERGE'
Order: Act of 1952LSection 24.1(a) (4) t8 II S.C. 1251(a) (4)3—Convicted
after entry of two crimes involving moral turpitude.
• to wit: sexual intercourse with a child and burglary.

The case comes forward on appeal by the trial attorney from the
order of the special inquiry officer dated February 2, 1966 that the
proceedings be terminated. .
The record relates to a native and citizen of the Netherlands, 20
years old, male, single, who last entered the United States at the
part of New York in August 1964 as a, returning resident after an
absence from April 1964. He had been originally admitted to the
United States for permanent residence on February 10, 1960. He
also had been absent from the United States from November to December 1963. On the occasion of both absences he departed and returned with his parents.
On April 5, 1965 the respondent was convicted in the Circuit Court
of Milwaukee County at Milwaukee, Wisconsin of the offense of sexual intercourse with a child upon his plea of guilty of violation of
section 944.10(2), Wisconsin statutes, was given a suspended sentence, and was placed on probation for two•years. On June 30,-1965
he was convicted upon his plea of guilty of burglary and was sentenced to an. indeterminate term of not more than three years. Probation was revoked on the conviction of sexual intercourse with a
child and he was sentenced to a concurrent term with the burglary
conviction. The respondent testified that he was tried in the Circuit
Court of Milwaukee, Wisconsin on September 10, 1965 for the offense

. Interim Debision 3t1620 •
of burglary and was convicted and sentenced to serve not more thanthree years in the WiscOnsin State Reformatory to run concurrently
with the two sentences he received in the Circuit Court of Milwaukee,
Wisconsin on June 30, 1965 (Ex. 4). However, the record of this
last conviction has not been made a part of the record_ It has been
established that the offense of sexual intercourse with a child and the
offense of burglary for which he was convicted on June 30, 1965 did
not arise out of the same scheme. The crime of burglary with intent
to steal involves moral turpitude and does not require any discussion.
The conviction of the respondent of the offense of intercourse with
a female child has received extensive discussion by the special inquiry officer. He concludes that the crime for which respondent was
convicted was not rape; that "mans rea" is not an element of the
offense; that no criminal intent is necessary to convict under the
statute. The special inquiry officer has cited law review articles urging a more liberal and realistic law regarding statutory rape of a
consenting female beyond the age of puberty. He concludes that
even if the• offense in the State of Michigan were statutory rape or
even analogous to statutory rape, under the modern trend of court
decisions because of the absence of the "mans rea" the offense of statutory rape would not involve moral turpitude. He likens the offense
to which respondent was convicted to fornication under Wisconsin
Statutes, Section 914.15, and observes that the crime of fornication
does not involve' moral turpitude. The special inquiry officer concludes that the offense of sexual intercourse with a child does not
involve moral turpitude. We shall review this finding because under
the theory advanced by the special inquiry officer, it would appear
that moral turpitude would not be involved in a violation of section
944.10(3), Wisconsin Statutes, with a female under 12 years, infra.
The offense for which respondent was convicted is set forth in
chapter 944 of the Wisconsin Statutes which is entitled "Crimes
against Sexual Morality." Various headings are set forth under
this heading : Sexual Crimes Without Consent which includes section 944.10 (rape) and 944.02 (sexual intercourse without consent) ;
Sexual Crimes which involve children:. and Sexual Crimes between
Adults with Consent which includes fornication (section 944.15),
adultery (section 941.16), and sexual perversion (section 944.17).
Section 914.10, which is listed under Sexual Crimes which Involve
Children, provides as follows: .
-

04410 Sexual intercourse with a child. Ally male who has sexual intercourse with a female he knows is not his wife may be penalized as follows:

(1) If the female is tinder the age of 18, fined not more than $1,000.00 or im•
priaoned not more than five years or both; or

724

_Interim Decision 40620
(2) If the female is under me age of 10, and tile male is 19 yearn ,of

aye or

over, imprisoned not • more than 15 years; or
(3) If the female is under the age of 12, and the male is 18 years of age or
over, imprisoned not more than 30 years.

The authenticated copy of the record .of complaint, conviction and
sentence (Ex. 5) bets forth in the complaint thereof to which the
respondent pleaded guilty, that:
Defendant Matt Quirinus Dingena, being a male person 18 years or over, did
feloniously have sexual intercourse with Coleen. Davy, a person of the age of
15 years, he the said Matt Quirinus Dingena, then and there well (mowing
that the said Coleen Davy was not his wifA contrary to section 944.10(2) of
the statutes. •

The predecessor statute involving this offense, section 340.47,1925
Wisconsin Statutes, entitled "Carnal knowledge and abuse" provided,
inter (ilia, as follows:
Any person over 18 years of age who shall unlawfully and carnally know and
abuse any female under the age of 18 years shall be punished by imprisonment
in the State prison not more than thirty years nor Jess than • hue year, or by a
One nut exceeding 9200; *

In alleging and proving the offense under section 340.47, supra,
it was not necessary to allege and prove force and that the act was
against the will of a female, as she was not capable in law of giving
consent, the averment of force and-want of consent being immaterial
and mere surplusag e.'
The rule regardig the evidentiary effect of disclosure or failure
to make disclosure of a rape does not apply where the element in respect of non-consent is supplied by the statute. 2
In criminal proceedings, in which the defendant was convicted of
sexual intercourse of a child contrary to section 944.10(2), Wisconsin
Statutes, consent or lack of it is not an element of the crime. 2
courts have long accepted the testimony . (if believed) Wiscon
of the complainant as sufficient to sustain a conviction of rape or sexual intercourse with a child.'
The age of consent as fixed by statutory provision in practically
all of the United States varies; .generally, such statutes raise the
common-law age at which a, female can Consent to sexual intercourse and, this statutory increase of the age of consent from the
1

State v. Eri.4;k8on, 45 Wis. 84.
Loose v. State, 97 N.W. 526, 120 Avis. 115.

*Gauthier v. State, 137 N.W. 2d 101, 28 Wis. 2d 412.
'Lanpbere v. State, 114 Wis. 193, 89 N.W. 128; Haley v. State, 207 Wis. 193,
240 N.W. 829; State v. Fischer. 228 Wis. 181, 279 N.W. 861; State v. Pries, 246
Win 521, 17 NM. 25 578; State v. Pickett, 259 Wis. 593, 49 N.W. 2d 712.

725

Interim Decision #1620
common-law age of ten years marks the only difference between
statutory and common-law rape of a female child. Where a statute
makes it either rape or carnal knowledge to have illicit sexual intercourse with a female under a specified age without any provision
regarding her consent, such statutes are construed as fixing the age
of consent, and the purpose of these statutes is to protect young females from illicit acts of the opposite sex by rendering such females
under the specified age incapable of consenting to sexual intercourse.
Thus, sexual intercourse with a female under the age of consent at
common-law or as fixed by statute constitutes raps or the statutory
crime of carnal knowledge, whether or not the act be accomplished
against her will, or with or without her consent. If she is under the

age limit fixed. by statute, consent is immaterial, as is force and resistance. Hence, to constitute the offense %A intercourse with a female below the age of consent, the only material elements are the
carnal knowledge and the age of the female. -The female's age at
the time the act charged was committed determines whether she is
within the age of consent fixed by a statute then in force.'
Under general rules, en indictment or information for rape or carnal knowledge or abuse of a person under the age of consent must

sufficiently allege the essential elements of the offense. Such an indictment may and must allege carnal knowledge by the use of those
words or by their equivalent. Where the statute punishing the offense
uses such an expression as "sexual intercourse" to describe the act,
an information charging that accused did. ravish and carnally know
that prosecntrir is sufficient, since "carnal knowledge" means sexual
intercourse.°
Although statutory rape is not a crime included under the present '
or predecessor of Wisconsin statutes, the offenses of carnal knowledge
of a female under a certain age and sexual intercourse with a female
under a certain age are similar, in that if she is under the age fixed
by the•statute, consent is immaterial and the only elements necessary
to be proved to establish the crime are the fact of carnal knowledge
and the age of consent.
The case of the United States v 'Tombs, 113 F. Supp. 203 (1953),
appeal dismissed 346 U.S. 892, held that rape and carnal knowledge
and abuse constitute distinct and separate offenses, and that Congress,
by deleting the latter offense from the list of offenses enumerated in
the "Major Crimes Act" (18 U.S.C.A.. 1163) indicated that Congress
did not think carnal knowledge should be made an offense under the
'75 0.3.9., we. 18, pp. 478, 479.
• Idem, sections 10(a), 89(d).

726

Interim. Decision #1620
Major Crimes Act. In this case, while Making a distinction between

rape and carnal abuse because carnal abuse was deleted as one of the
enumerated offenses in the list of Major Crimes, in accordance with
the usual ruling that criminal statutes must be , strictly construed,
the court held it was not within its province to create an offense by
construction of a Statute, and declined to include within the offense
of rape the offense of carnal -knowledge. The Jacobs case therefore simply stands for a familiar holding of strict construction in a
criminal case.
Sexual offenses with children similar to that for which the respondent was convicted in the instant ease hare previously been
held to involve moral turpitude. In Matter of F , 2 I. & N. Dec.
610 (1946), the alien was convicted in Illinois for contributing to
the delinquency of a child on a criminal information that he took a
15 year old female child into a basement and had sexual intercourse
with her. Moral turpitude was found because the acts were of the
nature, commonly referred to as statutory rape. For the same reason, in Matter of R—, 3 L & N. Dec. 562 (1949), it was held that a
conviction for violation of section 301(2) of tho Canadian Criminal
Code 'dealing with carnal knowledge of a girl of previous chaste
character under the age of 16 and above the age of 14, not being the
wife of the accused, involved, moral turpitude. In Matter of P—,
5 L & N. Dec. 392 -(1953), the alien was convicted in Massachusetts
for the offense of abuse of a female child, the indictment charging
that he assaulted a female child under the age of 16 years with intent to unlawfully and carnally know and abuse her_ The alien's
attorney contended that the Massachusetts offense did not involve
moral turpitude because under the statute a man could be convicted
even though he did not know the girl was under age, the crime re,
quire& no force, knowledge, or intent, and the crime committed was
merely fornication which could not be considered base, vile, 'or depraved. The Board found the contentions of counsel with respect
to this crime completely without merit, citing cases.'
Matter of M—, 9 I. & N. Dec. 452, involved the immediate predecessor to the present section 944.10, Wisconsin Statutes, namely,
section 310.47, Wisconsin Statutes. In that ease the Board likened
the crimes to statutory rape and held that it involved moral turpi.
tude, citing Pino v. Nioork, 215 F.2d 237, reversed on other grounds,
349 U.S. 901; and Bendel v. Nagle, 11 F.2d. 719.8
—

This conclusion, was endorsed sub tone, Pino r. Nicoll:I, 119 F. Supp. 122,
affirmed 215 F.2d 237 (1st Cir., 1954), reversed on other grounds, 349 U.B. 901.
The Board decision in Matter of If , 9 L & N. Dee. 452, was atermed sub
—

asst. Marks v. Enteral/. 315 F.2d 673 (2nd Clr., 1963), acrd. 870 U.S. 810t

727

Interim Decision #1620
(9th Cir. 1927), the alien .had been
In Bendel v. Nagle, 17 F.2d
convicted in Maryland of, the crime of having carnal knowledge of a
female child of the age of 15 years. The court stated that the crime
of which the appellant was convicted is usually classified as rape,
the e.atuto simply raising the oommon law age of consent, and such
-

a crime manifestly involves moral turpitude. .To the same effect was
the ease of Ng Sui,Tring v. United States, 46 F.24 755 (7th Cir.
1931) where the court found the. Illinois offenses of statutory rape
and contributing to the delinquency of a minor female child to involve moral turpitude.
The special inquiry officer has found the offense set forth in section 94410, Wisconsin: Statutes, identical to the offense of forniea. dim under 914.15 Wisconsin. Statutes which defines fornication as
sexual intercourse with a person not his spouse, fine not more than
$200 or imprisonment not more than six months or both. However,
he completely ignores the fact that the crime of fornication is set
forth in section 944.15 Wisconsin Statutes which involves Sexual
Crimes between Adults' with Consent, whereas section 944.10, sexual
intercourse with a child, deals with Sexual Crimes 1Vhieh Involve
Children.• The latter offense sets forth the different statutory ages
of consent at which the female is incapable in law of consenting because of the concern. of society with protecting such females under
the specified ages from illicit acts of the opposite sex. The penalty
increases as the age of the female decreases.
It is concluded that whether the offense be designated as statutory
rape, carnal knowledge of a female under the age'of consent, or sexual intercourse with S child under the age of consent, the essential
and material elements in all these offenses are the carnal knowledge
or intercourse and the age of the female. If sexual intercourse is
is present, and it is established that the female is under the age of
consent, the element of mens rea does not enter because of the very
nature of the offense and the interest of iociety, in rendering, such
feinales incapable of giving consent:
The mistake as to the age:of s girl in a statutory - rape case is not
an innocent' and, non-negligent Mistake of fact. The conviction
is upheld oil the ground that what was done would not have been
proper even if the facts had been as he reasonably supposed them
to be. 'The theory of the-courts' in these cases has been that Mistaking the age of the girl in a statutory, tape case is not an innocent
mistake of fact. The mistake is nothetween,an innocent netancl

guilty-one, but only in-regard

the nature of the wrone
The:cle•

'Perkins', Tiff:: Cantina; Law;"(1957),

p..1399..

728

Interim Decision 44620
fondant acts at his peril that the female may in fact be under the age
of consent:"
The views expressed in the articles in law reviews, which perhaps
represent an "enlightened" and "modern" sociological approach,
should be more properly addressed to the legislatures of the states.
However, as long as sexual intercourse with a child constitutes a
crime under the law of the state, we conclude on the basis of precedent administrative and judicial decisions, that moral turpitude is
involved. The appeal of the trial attorney will be sustained and the
order of the special inquiry officer will be reversed.
ORDER: It is ordered that the appeal of the trial attorney be and
the same is hereby sustained.

It is further ordered that the respondent be deported to The Netherlands on the charge stated in the order to show cause.
n Anderson, LA., Wharton, Oringnat

I/G&W

129

eon

Procachfro (11147), P.


Interim Decision #2294

MATTER OF CHANG

In Visa Petition Proceedings
A-20306974
Decided by Board June 12, 1974
Since beneficiary's alleged adoption in Burma by natives of China occurred
subsequent to 1939, it was governed, not by Chinese customary law, but by
Burmese Buddhist law, under which there are two forms of adoption: Kittima
and Appatittha. Beneficiary's adoption, allegedly effected in 1950 without
writing and without notifying the Burmese authorities, could not have been a
Kittima adoption, which is similar to the concept of adoption in the United
States. Assuming the adoption was an Appatittha adoption, the beneficiary is
nevertheless ineligible for preference classification under section 203(a)(2) of
the Immigration and Nationality Act, as amended, as an adopted son, since
such adoption is insufficient to confer benefits for immigration purposes
(11fattor of Kong, Interim Decision No. 2275).
ON BEHALF OF PF.7111.10N.ER:

Allen Jackson, Esquire

580 Washington Street
San Francisco, California 94111

The lawful permanent resident petitioner applied for preference
status for the beneficiary as his adopted son under section
203(a)(2) of the Immigration and Nationality Act. In a decision

dated August 1, 1973, the District Director approved the visa
petition, after concluding that an adoption had taken place under
the law of Burma and that such adoption was sufficient for the
purposes of the Immigration and Nationality Act. The District
Director has certified his decision to us pursuant to 8 CFR 3.1(c).
We will reverse the decision of the District Director and deny the
visa petition.
The petitioning father claims that he and his wife, both natives
of Chin; adopted the beneficiary in Burma in 1950 according to
Chinese customary law. The petitioner and his wife apparently
exchanged one of their own daughters for the beneficiary in order
that they might have a son to carry on the family line. After the
exchange, the beneficiary was raised as a son of the petitioner and
his wife. No adoption papers were exchanged, nor were the
authorities in Burma notified of the adoption.
720

Interim Decision #2294
The District Director obtained a memorandum of foreign law,
dated June 1, 1973, from the Far Eastern Law Division of the
Library of Congress. That memorandum sets forth section 13(1) of
the Burma Laws Act, Act XIII of 1898, which states:
(1) Where in any suit or other proceeding in Burma it is necessary for the
Court to decide any question regarding succession, inheritance, marriage or

caste, or any religious usage or institution,
(a) the Buddhist law in cases where the parties are Buddhists,
(b) the Mohammedan law in cases where the parties are Mohammedans,
and

(c) the Hindu law in cases where the parties are Hindus
shall form the rule of decision, except in so far as such law has by enactment
been altered or abolished, or is opposed to any custom having the force of law.'

Accordingly, the governing law in all cases where the parties
concerned are Burmese Buddhists is Burmese Buddhist law. Prior
to 1939, it was held that Chinese Buddhists in Burma were not
governed by the Burmese Buddhist law, but rather by the personal law of the Chinese, that is, Chinese customary law? However, in 1939 it was held that Burmese Buddhist law could not be
varied or overridden by exotic customs or usages. 3 Thereafter,
Burmese Buddhist law, not Chinese customary law, has governed
the rights of Chinese Buddhists domiciled in Burma.
On the basis of the memorandum of Burmese law, the District
Director correctly concluded that the present case was not governed by Chinese customary law. He went on, however, to conclude that an Appatittha adoption had occurred under Burmese
Buddhist law and that this adoption was sufficient for the purposes of the Immigration and Nationality Act. We disagree with
this conclusion.
We considered adoption under the Burmese Buddhist law in

Matter of Kong, Interim Decision 2275 (BIA 1974). We noted that
there are two forms of adoption under Burmese Buddhist law:
Kittima adoption, which is similar to the concept of adoption in the
United States, and Appatittha adoption, a casual relationship,
which does not create substantial rights and obligations between
parent and child.
An instrument of adoption registered in accordance with Section

5 of the Registration of Kittima Adoptions Act is a prerequisite for
the legal validity of a Kittima adoption effected after April 1, 1941.
The present adoption was allegedly effected without writing and
without notifying the Burmese authorities. We agree with the
1

2

The Burma Code, Rangoon, Ministry of Justice, 1955, v. 1, p 9

Tan Ma Since Zin v. Tan Ma Ngwe Zin, 10 Indian L.R. Rangoon Ser. 97 (1932).
Tan Ma Shwe Zin v. Khoo Soo Choung, Rangoon L.R. 548 (1939).

721

Interim Decision #2294
District Director's conclusion that there could be no Kittima
adoption in the present case.
We held in Matter of Kong, supra, that an Appatittha adoption is
not an adoption for the purposes of the Immigration and Nationality Act. Therefore, even if we assume that the information submitted by the petitioner is sufficient to establish an Appatittha
adoption, the beneficiary is not entitled to preference status under
section 203(aX2) of the Act on the basis of such an adoption.
The District Director cited Matter of Poon, Interim Decision No.
2153 (BIA 1972), and Matter of Rodriguez, Interim Decision No.
2195 (BIA 1973), as authority for his conclusion that an Appatittha
adoption is sufficient for immigration purposes. Those cases dealt
with adoption under Chinese law and custom in Hong Kong and
are inapplicable to the present situation. The District Director's
conclusion is inconsistent with our holding in Matter of Kong,
supra, and therefore it must be reversed.
In visa petition proceedings, the petitioner has the burden of
establishing eligibility for the benefit conferred by the immigration laws. Matter of Brantigan, 11 L & N. Dec. 493 (BIA 1966). The
petitioner has not established that the beneficiary is his adopted
son for immigration purposes. Consequently, the visa petition
must be denied.
ORDER: The decision of the District Director is reversed.
Further order:The visa petition is denied.

722


Interim Decision #1881

MATTER OF PTA&

In Deportation Proceedings
A-14778342
Decided by Board July 10, 1968
Conviction of manslaughter (by stabbing) in violation of section 53-13, Connecticut General Statutes, is conviction of a crime involving moral turpitude.
CHARGES:

Order: Act of 1952 — Section 241(a) (4) [8 U.S.C. 1251(a) (4)1—Crime involving moral turpitude committed within Ave years after
entry—sentenced to a year or more.

Lodged : Act of 1852—Section 241(a) (4) [811.8.C. 1251(a) (4)1—Two crimes
after entry.

Os BEHALF OF RESPONDENT:
Prowls H. Craighill, III, Esq.
Browner Building
Washington, D.C. 20006

ON BEHALF OF SERVICE:

Irving A. Appieman
Appellate Trial Attorney

Courtney B. Bourns, Esquire
1 Constitution Plaza
Hartford, Connecticut 06103
(Brief Sled)

The case comes forward on appeal from the order of the special
inquiry officer dated November 20, 1967 ordering that respondent be

deported to Italy solely on the lodged charge.
The respondent, a native and citizen of Italy, male, last entered the
United States on or about March 27, 1916. He was convicted in the
Town Court of Greenwich, Connecticut on July 15, 1946, of assault
with a dangerous weapon. He was next convicted on March 10, 1967,
in the Superior Court, County of Fairfield, Bridgeport, Connecticut,
of manslaughter in violation of section 53-13, of the Connecticut General Statutes and was sentenced to two to five years imprisonment.
The respondent has admitted all the factual allegations in the order
to show cause and has identified the records of his convictions. However,
it is contended that the crimes do not involve moral turpitude.
790

ill wl aua

J../CrirlanALI.

air

In Matter of 0—, 3 I. & N. Dec. 193, the respondent was charged with
assault with a dangerous and deadly weapon (not named) and was
convicted of aggravated assault in violation of section 6195 of the
General Statutes of Connecticut. We observed that the offense was
inherently base, and this was so because an assault aggravated by the
use of a dangerous or deadly weapon is contrary to accepted standard
of morality in a civilized society; that an assault by use of a dangerous
or deadly weapon always constituted conduct contrary to acceptable
human behavior. Such conduct may be looked upon as always having
been inherently base. We concluded that the offense of assault with a
deadly or dangerous weapon (not named) in violation of section 6195
of the General Statutes of Connecticut, involved moral turpitude. The
statute under which the respondent in the cited case was convicted is
the

MUM

statute under which the respondent in a present case was

convicted. Upon the authority of Matter of 0—, .supra, we hold that
the crime involves moral turpitude.
In the second crime the respondent was convicted of manslaughter
in violation of section 53-13 of the Connecticut General Statutes.
Section 53-13 states that any person who commits manslaughter shall
be fined not more than $1,000 or imprisoned not more than 15 years or
both.
In State v. Feltevic, 110 Conn. 303, 309, the court stated that the
law implies malice where the unlawful killing is with a deadly weapon.
In Connecticut v. Samson, 22 Conn. Sup. 175, the defendant was convicted of manslaughter and sentenced 12 to 15 years. The court
observed that the crime was most brutal in nature, although under the
circumstances, permitting a plea of manslaughter was justified. In
Connecticut v. Pau le, 22 Conn. Sup. 494, the defendant was found
guilty of manslaughter in violation of General Statutes, sec. 53-13,
and was sentenced - to seven to fifteen years; the defendant in that
case admitted that the gun exploded in his han
d and the court held
that the sentence was proper. In Connecticut v. Bennett, 22 Conn.
Sup. 498, the defendant pleaded guilty to manslaughter and was sentenced to eight to ten years; the killing was with a screw driver, and
the accused persisted until his efforts were fatal; the court held
the sentence was fair. In State v. MacMitchell, 23 Conn. Sup. 246, the
defendant pleaded guilty to manslaughter and was sentenced six to
twelve years; the homicide was committed with a knife with which the
defendant stabbed her husband in which she carried in her purse and
could not satisfactorily explain; the sentence was affirmed.
It would be somewhat anomalous to hold that an assault with a
deadly or dangerous weapon which does not result in a homicide but
which we have held to involve moral turpitude because the conduct

791

Interim Decision #1881
is inherently base, yet to hold that the same assault with a dangerous
weapon, in this case, stabbing, which resulted in a homicide, did not
involve moral turpitude. In the case of Pillias v. Smith. 46 F2c1 769
(7th Cir., 1931), the alien was convicted of manslaughter in Hungary
as a result of an attack with a knife. In Hungary, degrees of manslaughter are not recognized. Nevertheless, the court held that it was
difficult to conceive of a greater degree of manslaughter than that
for which the alien was convicted.
In the instant ease it is apparent that the manslaughter by stabbing
of which respondent was convicted was voluntary manslaughter which
has consistently been held to involve moral turpitude. 1
There is no contention that the crimes arose out of a single scheme
of criminal misconduct. The respondent is single and his only close
relative in the United States is his brother who is a citizen. Despite the
fact that the respondent has been a resident of the United States for
over 50 years, no relief appears available upon the present record. The
appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
'Matter of Sanchez-Matin, 11 I. & N. Dec. 264.

792


Interim Decision #2551

MATTER OF RO

In Deportation Proceedings
A-20534965
A-20515093
Decided by Board January 25, 1977
(1) Respondents conceded deportability under section 241(a)(2) of the Immigration and
Nationality Act as nonimmigrants who remained beyond the authorized period of their
admission. The issue on appeal involves denial of respondents' applications for relief
under section 245 of the Act.
(2) Respondents initially submitted applications for immigrant visas to a United States
Consul in South Korea seeking nonpreference status claiming an exemption from the
labor certification requirement of section 212(a)(14) of the Immigration and Nationality
Act on the basis of an investment in a dry-cleaning business and were given a nonpreference priority date of October 17, 1973. The instant applications for adjustment of status,
however. are based on an investment in a new business.
(3) Under 8 C.F.R. 245.1(g)(2) a nonpreference priority date once established is retained
by the alien even though at the time a visa number becomes available and he is allotted a
nonpreference visa number he meets the provisions of section 212(a)(14) of the Act by
some means other than by which he originally qualified. The respondents may therefore
claim the priority date of October 17, 1973, even though the investment on which the
present application are based is different from that which supported their original
application for visas.
(4) The record contained evidence that respondents nnrtered the United States with a
pre conceived intent to remain in that they filed applications for adjustment of status
only 16 days after their arrival. This adverse factor is not outweighed by the favorable
factors in this ease and the applications were property denied in the exercise of discretion.
(5) Matter of Jo, Interim Decision 2412 (BIA 1975) distinguished.
CHARGE:
Order. Act of 1952—Section 241(a)(2) 18 U.S.C. 1251(a)(2)]—Nonimmigrante-

remained longer
ON BEHALF OF RESPONDENTS: Bert D. Greenberg, Esquire
8484 Wilshire Boulevard, #730
Beverly Rills, California 90211
BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members

In a decision dated April 1, 1976, the immigration judge found the
93

Interim Decision #2551
respondents deportable as charged, denied their application for adjustment of status under section 245 of the Immigration and Nationality
Act, and granted them voluntary departure in lieu of deportation. The
respondents have appealed from that decision. The appeal will be dismissed.
The respondents, natives and citizens of South Korea, have conceded
their deportability under section 241(a)(2) of the Act as nonin -imigrants
who remained beyOnd the authorized period of admission. The only
issues on appeal involve the denial of the respondents' applications for
section 245 relief.
The respondents initially submitted their applications for immigrant
visas to a United States Consulate in South Korea. They sought nonpreference status, claiming an exemption from the labor certification
requirement of section 212(a)(14) on the basis of an investment in a
dry-cleaning business. Their applications were accepted, and they were
given a nonpreference priority date of October 17, 1973.' Their present
applications for adjustment of status are based upon an investment in a
new business.
The immigration judge denied the applications on two grounds: he
held that (1) immigrant visas are not -immediately available" as required by section 245 and therefore the respondents are statutorily
ineligible for adjustment of status, and that (2) the respondents do not
merit a favorable exercise of discretion. The respondents, through

counsel, contend that their priority date of October 17, 1973, is retained.
Counsel asserts that the immigration judge erred in holding that the
respondents were statutorily ineligible for the relief inasmuch as immigrant visas were available at the time .of the immigration judge's decision to those aliens from South Korea with priority dates before January
1, 1974. The immigration judge, citing our order in Matter of Jo, Interim
Decision 2412 (BIA 1975), rejected this argument in his decision.

In Matter of Jo we held that an alien whose application for adjustment
of status is denied for failure to show an exemption from the labor
certification requirement of section 212(a)(14) has not established a
"priority date" within the meaning of 8 C.F.R. 245.2. Consequently,
when the alien submits another application claiming an exemption from
labor certification based on a different investment, the earliest "priority
date" the alien can obtain is.the date on which the new application was
filed. The alien in that case had not been accorded a priority date by the
Department of State.
Our holding in Matter of Jo is inapplicable in the present case. The
respondents filed their applications for immigrant visas with a consular
1

It appears as though the consular letter referring to the priority date given to the

respondents was inadvertently left out of the record. The immigration judge. however.
refers to the State Department determination in his decision.

94

Interim Decision #2551
official and were given a priority date. 8 C.F.R. 245.1(g)(2) provides
that a priority date may be fixed by that priority date accorded the
applicant by the consular officer as a nonpreference immigrant. It
further provides that, "A nonpreference priority date, once established,
is retained by the alien even though at the time a visa number becomes
available and he is allotted a nonpreference visa number he meets the
provisions of section 212(a)(14) of the Act by some means other than that
by which he originally established entitlement to the nonpreference
priority date." Therefore, according to the regulation, the respondents

may claim the priority date of October 17, 1973, even though they now
claim to be exempt from section 212(a)(14) on the basis of an investment
different from that which supported their original applications for immigrant visas. The immigration judge erred in finding them statutorily
ineligible for failure to establish the availability of immigrant visas as
required by section 245.
With respect to the immigration judge's decision to deny the applications as a matter of discretion, we are in agreement. The record contains
evidence that the respondents entered the United States with a preconceived intent to remain: an application for adjustment of status was filed
only 16 days after arriving here_ Such evidence adversely affects an
application for discretionary relief. See Soo Yuen v. INS, 456 F.2d 1107
(9 Cir. 1972); Ameeriar v. INS, 438 F.2d 1028 (3 Cir. 1971) cert.
dismissed, 404 U.S. 801 (1971); Chenv. Foley, 385 F.2d 929 (6 Cir. 1967),
cert. denied, 393 U.S. 838 (1968); Cubillos Gonzalez v. INS, 352 F.2d
786 (9 Cir. 1965); Castillo v. INS, 350 F.2d 1 (9 Cir. 1965). We do not
consider the favorable factors in the case sufficient to outweigh the
adverse evidence.
Accordingly, the appeal will be dismissed.
-

ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's order, the
respondents are permitted to depart from the United States voluntarily
within 30 days from the date of this order or any extension beyond that
time as may be granted by the District Director; and in the event of
failure so to depart, the respondents shall be deported as provided in the
immigration judge's order.

95


Interim Decision #1289

MATTER OF HERNANDEZ

In EXCLUSION Proceedings
A-13013528

Decided by Board June 18,1963
In determining loss of citizenship under section 349(a) (4) (A), Immigration and
Nationality Act, evidence of employment under the government of a foreign

state

or a political subdivision thereof should be established by properly
authenticated documents which refer to the pertinent portion of the constitution, laws, and regulations of that foreign state. •

EXCLUDABLE: Act of 1052—Section 212(a) (20) [8 U.S.C. 1182(a) (20)1—Immigrant without visa.

This is an appeal from the order of the special inquiry officer excluding the applicant upon the ground stated above.
The applicant a 40-year-old married male, became a citizen of both
the United States and Mexico at birth. Since 1935 he has lived in
Mexico; he has been working for the Minicipal Water System of Naco,
Sonora, Mexico since 1961. The Service charges that this employment
resulted in the applicant's loss of United citizenship under the provisions of section 349( a) (4) (A) of the Act (8 U.S.C. 1481) which provides that a United States national shall lose his United States nationality by :
accepting, serving in, or performing the duties of any office, post, or employment
under the government of a foreign state or a political subdivision thereof, if he
has or acquires the nationality of such foreign state * * C."

Loss of United States nationality occurs under this section when the
employment is "under the government of a foreign state or a political
subdivision" even though performance of the duties of the employment is not inconcistent with retention of United States nationality
(Matter of Le Couteur, Int. Dec. No. 1146), and even though the
employment is not restricted to nationals of the foreign state• We are
thus faced with the sole issue as to whether applicant's employment is
"under the government of a foreign state or a political subdivision."

• This conclusion is founded on the fact that express language of the predecessor section (section 401(d) of the Nationality Act of 1940, 54 Slat. 1197)
298

Interim Decision #1289
The special inquiry officer's finding that the applicant's employment
was under the government of a foreign state or a political subdivision
thereof is based on information from applicant's employer Roberto
Duarte Guerrero, Manager of the Potable Water System, Municipal
Government of Nano, Sonora, Meiico, who on a paper without letterhead and without seal furnished the information, that applicant works
for the system and receives his pay as a pumpman from the Federal
Government of Mexico, that the system is an agency of the Federal
Government of Mexico in the Department of Hydraulic Resources,
and that the system is owned by the Government of Mexico. He also
states that the employees must be Mexican citizens. No reference to
the legal basis for the hearsay opinion given by the manager of the
system is set forth.
We believe the record is deficient. Evidence that the applicant's
employment is under the Government of Mexico or a political subdivision of Mexico should be established by reference to the constitution,
laws, and regulations of Mexico by documents which are properly
authenticated. Proceedings will be ordered reopened for this purpose (See Akiyo Oye v. Acheson, 110 F. Supp. 635 N.D. Cal. (1953) ;
Teruo Naito v. Acheson, 106 F. Stipp. 770 SI/ Cal. (1952) ) .
ORDER: It is ordered that the proceedings be reopened for the
purpose stated in our opinion and for such further action as the special inquiry officer may deem appropriate.
It is further ordered that the order of the special inquiry officer be
certified to the Board.
requiring the employment to be that "for which only nationals of such [foreign]

state are eligible" does not appear in section 249(a) (4) (A) of the Act. The natural inference of this omission is underlined by following comment made concerning the restriction; by the Senate committee on whose recommendations the
present section was based

This subdivision (section 401(d) of the Nationality Act of 1940] is highly
technical and has been the subject of much discussion and interpretation. Generally, expatriation does not result where.the restriction as to "nationals only"
is not generally enforced. Likewise. if nonnationals are permitted to take such
employment after an official of the foreign state has stated that no nationals are
available, expatriation does not result. It does not apply to those who have
merely applied for employment. where the position is open to nationals only, or to
temporary employment thereafter made permanent, where permanent employment
is restricted to nationals only. The fact that a person may be a national of the
foreign state is irrelevant if the position is open to others than nationals. The
subsection does not, therefore, in many cases, affect dual nationals, and therefore
has been ineffective in making such persons elect American citizenship exclusively. The subcommittee is recommending changes in this subsection which,

is felt, will strengthen the law and make for a determination of citizenship and
an elimination of dual citizenship. * * * (Footnotes omitted.) (S. Rep. No.
1518, 81st Cong., 2d Bess. 749-450 (1950). )

299