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Matter of Bao Quoc DANG, Respondent
Decided April 28, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The Supreme Court’s construction of “physical force” in Johnson v. United States, 559
U.S. 133 (2010), and Stokeling v. United States, 139 S. Ct. 544 (2019), controls our
interpretation of 18 U.S.C. § 16(a) (2018), which is incorporated by reference into
section 237(a)(2)(E)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1227(a)(2)(E)(i) (2018); the Court’s construction of “physical force” in United States
v. Castleman, 572 U.S. 157 (2014), is inapplicable in this context.
(2) Because misdemeanor domestic abuse battery with child endangerment under section
14:35.3(I) of the Louisiana Statutes extends to mere offensive touching, it is overbroad
with respect to § 16(a) and therefore is not categorically a crime of domestic violence
under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i).
FOR THE RESPONDENT: Kenneth A. Mayeaux, Esquire, Baton Rouge, Louisiana
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Assistant Chief Counsel

Matthew Sidebottom,

BEFORE: Board Panel: CREPPY, LIEBOWITZ, and PETTY, Appellate Immigration
Judges.
PETTY, Appellate Immigration Judge:

The respondent was convicted of violating a Louisiana law prohibiting
battery of domestic partners. Based on that conviction, an Immigration Judge
found him removable for having been convicted of a crime of domestic
violence under section 237(a)(2)(E)(i) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1227(a)(2)(E)(i) (2018). The respondent challenges
that finding. We must apply the categorical approach to decide whether
Louisiana’s domestic abuse battery statute criminalizes unlawful contact
below the level of “physical force,” as the Supreme Court of the United States
defined that term in Johnson v. United States, 559 U.S. 133 (2010), and
Stokeling v. United States, 139 S. Ct. 544 (2019). Under Louisiana law, the
“force or violence” element of the domestic abuse battery statute is satisfied
by a mere offensive touching. We therefore conclude that the statute does
not categorically require “physical force” as required by Johnson and
Stokeling and is not a crime of domestic violence under the INA. The
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respondent’s appeal will be sustained and his removal proceedings
terminated.

I. BACKGROUND
The respondent is a native and citizen of Vietnam and a lawful permanent
resident of the United States. In 2017, he was convicted of misdemeanor
domestic abuse battery with child endangerment, in violation of section
14:35.3(I) of the Louisiana Statutes, for which he was sentenced to 2 months’
imprisonment. 1 Based on this conviction, the Department of Homeland
Security (“DHS”) charged the respondent as removable under section
237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), for having been
convicted of a crime of domestic violence.
The respondent admitted the fact of his conviction but denied that it
rendered him removable. In a motion to terminate his removal proceedings,
and in two subsequent motions to reconsider, the respondent maintained that
his conviction was not a predicate for removal under section 237(a)(2)(E)(i)
of the INA, 8 U.S.C. § 1227(a)(2)(E)(i). The Immigration Judge disagreed,
found the respondent removable as charged, and denied each of the motions.
However, the Immigration Judge granted the respondent’s application for
cancellation of removal under section 240A(a) of the INA, 8 U.S.C.
§ 1229b(a) (2018). The respondent appealed and maintains that his
conviction is not a removable offense. DHS has not cross-appealed the grant
of cancellation of removal. Following receipt of the respondent’s initial
brief, we invited both parties to submit supplemental briefs on whether
1
At the time of the respondent’s offense, his statute of conviction provided, in relevant
part:

A. Domestic abuse battery is the intentional use of force or violence committed by
one household member or family member upon the person of another household
member or family member.
B. For purposes of this Section:
....
(5) “Household member” means any person of the opposite sex presently or
formerly living in the same residence with the offender as a spouse, whether
married or not . . . .
....
I. This Subsection shall be cited as the “Domestic Abuse Child Endangerment
Law.” When the state proves, in addition to the elements of the crime as set forth in
Subsection A of this Section, that a minor child thirteen years of age or younger was
present at the residence or any other scene at the time of the commission of the
offense [certain penalties will be imposed].
La. Stat. Ann. § 14:35.3 (2017).

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a violation of the Louisiana misdemeanor domestic abuse battery statute is
categorically a “crime of domestic violence” under section 237(a)(2)(E)(i),
and both parties did so. We review this question of law de novo. 8 C.F.R.
§ 1003.1(d)(3)(ii) (2021).

II. DISCUSSION
A. Statutory Context
A noncitizen is removable if, at any time after admission, he or she has
been convicted of a “crime of domestic violence.” See INA § 237(a)(2)(E)(i),
8 U.S.C. § 1227(a)(2)(E)(i). A “crime of domestic violence” is defined as
any crime of violence (as defined in 18 U.S.C. § 16(a) (2018)) committed by
a perpetrator who has a specified domestic relationship with the victim. 2 Id.
In order to demonstrate that a noncitizen is removable under this provision,
DHS must show both that the statute of conviction is categorically a “crime
of violence” and that the crime was committed by a person with the requisite
domestic relationship to the victim. Here, the parties do not dispute the
existence of the domestic relationship, so we consider only whether section
14:35.3 of the Louisiana Statutes is categorically a “crime of violence”
within the meaning of 18 U.S.C. § 16(a).
We determine whether a criminal conviction is a “crime of violence”
under § 16(a), and thus a removable “crime of domestic violence” under
section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), by applying
the categorical approach. See Moncrieffe v. Holder, 569 U.S. 184, 191
(2013) (noting that the word “‘[c]onviction’ is ‘the relevant statutory hook’”
requiring application of the categorical approach (quoting
Carachuri-Rosendo v. Holder, 560 U.S. 563, 580 (2010))); Matter
of Moradel, 28 I&N Dec. 310, 316–17 (BIA 2021). The categorical approach
focuses on the elements of the respondent’s statute of conviction. See Mathis
v. United States, 579 U.S. 500, 504 (2016). As it is well established, we do
not examine the facts of the respondent’s particular case and we must
presume that his conviction rested upon only the least culpable conduct
proscribed by the statute. Moncrieffe, 569 U.S. at 190–91. We then
determine whether the least culpable conduct so criminalized would
necessarily—that is, categorically—be a “crime of violence.” See id. If
a defendant can be convicted based on conduct that does not fit the definition
of a “crime of violence,” then the statute as a whole, if indivisible, does not
2

In addition to section 237(a)(2)(E)(i), a number of other statutes, including immigration
statutes, expressly incorporate the definition of “crime of violence” in 18 U.S.C. § 16(a)
by reference. See generally Matter of Alcantar, 20 I&N Dec. 801, 806–07 & nn.3–4 (BIA
1994) (listing provisions).

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categorically define a “crime of violence” and cannot be the predicate for
removal under section 237(a)(2)(E)(i).
A “crime of violence” means “an offense that has as an element the use,
attempted use, or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 16(a). As relevant to this appeal, the key
phrase is “physical force.” In addition to § 16(a), Congress has employed
the phrase “physical force” in at least two other related, but subtly distinct,
contexts. First, in the Armed Career Criminal Act (“ACCA”), Congress
defined a “violent felony” to be a crime that “has as an element the use,
attempted use, or threatened use of physical force against the person of
another.” 18 U.S.C. § 924(e)(2)(B)(i) (2018) (emphasis added). Second, in
what has come to be known as the Lautenberg Amendment, Congress
defined a “misdemeanor crime of domestic violence” to be “an offense
that . . . is a misdemeanor . . . and . . . has, as an element, the use or attempted
use of physical force . . . committed by” an individual who has a specified
domestic relationship to the victim. See 18 U.S.C. § 921(a)(33)(A) (2018)
(emphasis added).
In Matter of E. Velasquez, 25 I&N Dec. 278, 282 (BIA 2010), we
concluded that the Supreme Court’s then-recent decision in Johnson, 559
U.S. at 140—a case interpreting the meaning of “physical force” under the
ACCA, 18 U.S.C. § 924(e)(2)(B)(i) (2006)—controlled our interpretation of
section 237(a)(2)(E)(i). Since then, the Supreme Court has addressed the
meaning of “physical force” as it is used in the Lautenberg Amendment in
United States v. Castleman, 572 U.S. 157, 168 (2014), and recently returned
to the meaning of “physical force” under the ACCA in Stokeling, 139 S. Ct.
at 555. In doing so, the Supreme Court has ascribed different meanings to
the phrase “physical force” depending on the statutory context in which it is
found.
B. Defining “Physical Force”
1. Case Law Developments
The ACCA provides for criminal sentencing enhancements for certain
felons who have committed three or more “violent felon[ies].” 18 U.S.C.
§ 924(e)(1). In Johnson, 559 U.S. at 140, the Supreme Court held that, “in
the context of [the ACCA’s] definition of ‘violent felony,’ the phrase
‘physical force’ means violent force—that is, force capable of causing
physical pain or injury to another person.” Applying this construction of
18 U.S.C. § 924(e)(2)(B)(i), the Court concluded that the defendant’s Florida
battery conviction, which, under State law, required proof of only the merest
offensive touching, did not categorically require proof of violent force, and
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therefore did not qualify as a violent felony. Id. at 138–43. The Court further
explained that applying a definition of “force” derived from the crime of
battery, which encompassed mere offensive touching, would have led to
a “comical misfit” with the term “violent felony” because at common law
battery was a misdemeanor. Id. at 145 (emphasis added). The Court declined
to ascribe to Congress an intent to define “violent felony” to include common
law misdemeanors. Id. at 141–42.
Four months after Johnson was handed down, we decided Matter
of E. Velasquez. Noting that the definition of “violent felony” in 18 U.S.C.
§ 924(e)(2)(B)(i) was, “in pertinent part, identical” to the definition of “crime
of violence” in 18 U.S.C. § 16(a), we applied Johnson’s definition of
“physical force” under 18 U.S.C. § 924(e)(2)(B)(i) to our interpretation of
section 237(a)(2)(E)(i), which incorporates § 16(a) by reference. Matter
of E. Velasquez, 25 I&N Dec. at 282 (“Johnson controls our interpretation of
a ‘crime of violence’ under § 16(a).”). Because the respondent’s Virginia
statute of conviction—misdemeanor assault and battery of a family member
—reached conduct that could not be classified as “physical force” under
Johnson, that is, force capable of causing pain or injury, we concluded that
the statute did not categorically define a crime of violence and therefore did
not categorically define a crime of domestic violence under section
237(a)(2)(E)(i). Id. at 280–81, 283.
Four years after Johnson, the Supreme Court examined the meaning of
the same phrase—“physical force”—as part of the Lautenberg Amendment.
Castleman, 572 U.S. at 162–68. Originally enacted as part of the Omnibus
Consolidated Appropriations Act of 1997, Division A of Pub. L. No.
104-208, § 658, 110 Stat. 3009, 3009–371 (1996), the Lautenberg
Amendment prohibits the possession of firearms by specified classes of
individuals, including anyone “who has been convicted in any court of
a misdemeanor crime of domestic violence.” 18 U.S.C. § 922(g)(9) (2018).
A “misdemeanor crime of domestic violence,” in turn, is defined as “an
offense that is a misdemeanor . . . and . . . has, as an element, the use or
attempted use of physical force . . . committed by” an individual who has
a specified domestic relationship with the victim. 18 U.S.C. § 921(a)(33)(A).
Castleman explained that domestic violence “encompass[es] acts that one
might not characterize as ‘violent’ in a nondomestic context,” and that
perpetrators of domestic violence are “routinely prosecuted under generally
applicable assault or battery laws.” 572 U.S. at 164–65 (quoting
United States v. Hayes, 555 U.S. 415, 427 (2009)). Castleman concluded
that, unlike the ACCA provision at issue in Johnson, “physical force” in the
context of a “misdemeanor crime of domestic violence” included even the
minimal degree of force necessary to support a common-law battery
conviction, that is, “even the slightest offensive touching.” Id. at 162–63
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(quoting Johnson, 559 U.S. at 139). In contrast to Johnson, where defining
“violent felony” to include misdemeanor battery produced nonsense,
Castleman explained that the level of force required to commit
a misdemeanor battery at common law “fits perfectly” in the context of
a “misdemeanor crime of domestic violence.” Id.
Three years ago, the Supreme Court returned to the same ACCA
provision it considered in Johnson, this time examining whether a Florida
robbery statute categorically required proof of “physical force.” Stokeling,
139 S. Ct. at 549–50. Noting that “force” and “violence” were frequently
used interchangeably in the context of common-law robbery, Stokeling
concluded that the “physical force” necessary to overcome the slightest
resistance of a victim—which is what distinguished robbery from larceny at
common law—is sufficient to constitute “violent force” for purposes of the
ACCA. Id. at 550, 553.
Stokeling distinguished Johnson on the basis that the Florida battery
statute at issue in Johnson tracked the common-law battery definition,
criminalizing “any intentional physical contact.” Id. at 553 (quoting
Johnson, 559 U.S. at 140). That definition necessarily encompassed force
not capable of causing physical pain or injury, including mere offensive
touching. Stokeling reasoned the offensive touching “Johnson addressed
involved physical force that is different in kind from the violent force
necessary to overcome resistance by a victim.” Id. “By contrast,” the Court
held, “the force necessary to overcome a victim’s physical resistance is
inherently ‘violent’ in the sense contemplated by Johnson, and ‘suggest[s]
a degree of power that would not be satisfied by the merest touching.’” Id.
(alteration in original) (quoting Johnson, 559 U.S. at 139). Stokeling
concluded that this “understanding of ‘physical force’ comports with
Johnson.” Id. at 552; see also id. at 555 (concluding that “physical force” or
“‘force capable of causing physical pain or injury’ includes the amount of
force necessary to overcome a victim’s resistance” (quoting Johnson, 559
U.S. at 140)); Matter of A. Valenzuela, 28 I&N Dec. 418, 423 (BIA 2021)
(applying Stokeling to section 101(a)(43)(F) of the INA, 8 U.S.C.
§ 1101(a)(43)(F) (2018), which defines an aggravated felony crime of
violence by reference to § 16(a)). Because the Florida robbery statute at issue
in Stokeling required proof of force sufficient to overcome a victim’s
resistance, while the Florida battery statute at issue in Johnson did not,
Stokeling concluded that the robbery statute qualified as a “violent felony”
under the ACCA. 139 S. Ct. at 554–55.

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2. Castleman’s Definition of Physical Force Is Inapplicable
DHS urges us to adopt Castleman as a guide to our interpretation of
“crime of domestic violence” under section 237(a)(2)(E)(i) of the INA,
8 U.S.C. § 1227(a)(2)(E)(i). First, DHS notes that the phrase “physical
force” appears in both the Lautenberg Amendment and in 18 U.S.C. § 16(a),
and on that basis suggests we should presume Congress intended that the
terms be given the same meaning in both statutory contexts. Second, because
section 237(a)(2)(E)(i) is concerned with crimes of domestic violence, DHS
also suggests that we should understand “physical force” in light of
Castleman’s admonition that domestic violence can include “acts that one
might not characterize as ‘violent’ in a nondomestic context.” Castleman,
572 U.S. at 165.
DHS’ first argument, based on the canon of consistent usage, was
expressly rejected by the Supreme Court in Castleman. See id. at 163 n.3.
Indeed, Castleman’s primary holding was that “physical force” as it is used
in the Lautenberg Amendment means something different than it does in the
ACCA. That holding is what animated much of Justice Scalia’s
disagreement with the majority. See id. at 174 (Scalia, J., concurring in part
and concurring in the judgment) (suggesting the phrase “physical force” in
the Lautenberg Amendment should be given “Johnson’s interpretation”
based on “the presumption of consistent usage”). Because Castleman
specifically held that the phrase “physical force” in the Lautenberg
Amendment means something different than “physical force” in the ACCA,
we reject the DHS’ suggestion that the phrases should be construed
identically.
DHS’ second argument that the Lautenberg Amendment’s definition of
“physical force” should apply to section 237(a)(2)(E)(i) because both
provisions address domestic violence, fares no better. The Supreme Court
has rejected that argument as well, expressly noting that Castleman did not
extend to section 237. As the Justices explained, “Our view that ‘domestic
violence’ encompasses acts that might not constitute ‘violence’ in
a nondomestic context does not extend to a provision like [section
237(a)(2)(E)(i)], which specifically defines ‘domestic violence’ by reference
to a generic ‘crime of violence[]’” under §16(a). Castleman, 572 U.S. at 165
n.4; see also Matter of A. Valenzuela, 28 I&N Dec. at 420 (applying § 16(a)
where expressly incorporated by reference into section 101(a)(43)(F)). In
other words, a crime of domestic violence under section 237(a)(2)(E)(i) must
necessarily involve a crime of violence under § 16(a).
Congress could have defined “crime of domestic violence” under section
237(a)(2)(E)(i) by reference to the Lautenberg Amendment’s definition of
“misdemeanor crime of domestic violence.” See 18 U.S.C. § 921(a)(33)(A).
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Instead, it elected to tie removability under section 237(a)(2)(E)(i) to a subset
of “crime[s] of violence” as defined at § 16(a) that also involve a victim with
a particular relationship to the perpetrator. We recognize the serious human
toll of domestic violence, as well as the significance Congress has ascribed
to it. See generally Matter of A-M-, 25 I&N Dec. 66, 73–74 (BIA 2009)
(discussing protections Congress has extended to battered noncitizens). We
are also aware that some convictions for domestic violence—particularly
those prosecuted under generally applicable battery statutes—may not
qualify as predicates for removal under Johnson. However, we must hew to
the plain language of the statute Congress has enacted. See Niz-Chavez
v. Garland, 141 S. Ct. 1474, 1486 (2021). Castleman’s definition of
“physical force” is inapplicable to section 237(a)(2)(E)(i).
3. Johnson and Stokeling Together Define “Physical Force”
For more than a quarter-century, we have treated “physical force” under
18 U.S.C. § 16(a) and the ACCA identically and applied decisions addressing
each provision interchangeably. We have noted that because of their
similarity, “in some cases the question whether a conviction under
a particular statutory provision is a ‘crime of violence’ will have been
answered using the same term in another context.” Matter of Alcantar, 20
I&N Dec. 801, 807 (BIA 1994); see also Matter of Kim, 26 I&N Dec. 912,
914 (BIA 2017) (noting “Johnson . . . control[s] our interpretation of
§ 16(a)”); 3 Matter of Guzman-Polanco, 26 I&N Dec. 713, 717 (BIA 2016)
(noting the ACCA and § 16(a) are “very similar” (citation omitted)); Matter
of E. Velasquez, 25 I&N Dec. at 282 (same). This practice is consistent with
Johnson itself, which relied heavily on Leocal v. Ashcroft, 543 U.S. 1, 11
(2004)—a case applying 18 U.S.C. § 16—in interpreting the ACCA. See
Johnson, 559 U.S. at 140.
Nothing in Castleman or Stokeling calls into question our long-standing
practice of relying on the Supreme Court’s interpretation of “physical force”
in the ACCA in construing that phrase in § 16(a), and the courts of appeals
have likewise continued to rely on precedential decisions interpreting
“physical force” under each of these provisions as applicable to the other. 4
3
In Matter of Kim, we took note of Castleman but did not address its impact, if any, on
the definition of “physical force.” See 26 I&N Dec. at 919 n.8 (“[W]e do not attempt to
demarcate the precise point at which force becomes ‘violent’ under Johnson.”).
4
See, e.g., Villanueva v. United States, 893 F.3d 123, 130 (2d Cir. 2018) (“We accept
[the] premise that ‘crime of violence’ in subsection 16(a) is the equivalent of ‘violent
felony’ in subsection 924(e).”); United States v. Studhorse, 883 F.3d 1198, 1203 (9th Cir.
2018) (applying the “near-identical language of the Armed Career Criminal Act” to
articulate the requirements of § 16(a)); Stuckey v. United States, 878 F.3d 62, 68 n.9 (2d

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In Matter of E. Velasquez, 25 I&N Dec. at 282, we explained that “Johnson
controls our interpretation of a ‘crime of violence’ under § 16(a),”
notwithstanding the fact that Johnson arose in the ACCA context. Following
Stokeling, which was also an ACCA case, we now must read Johnson and
Stokeling together to assess whether a statute categorically requires proof of
“physical force” under § 16(a) in determining removability under section
237(a)(2)(E)(i). This level of force is not satisfied by a battery statute that
criminalizes mere offensive touching but is satisfied by a robbery statute that
requires proof of force sufficient to overcome the slightest resistance. See
Stokeling, 139 S. Ct. at 553, 555; Johnson, 559 U.S. at 139–40; Matter
of A. Valenzuela, 28 I&N Dec. at 422–23.
C. Application to the Respondent
The question, then, is whether Louisiana’s domestic abuse battery statute
categorically requires proof of “physical force,” as that phrase is understood
by Johnson and Stokeling. We first determine the level of force required by
State law to commit the offense. That is a pure question of State law on
which Louisiana courts’ interpretation of Louisiana law controls. See
Montana v. Wyoming, 563 U.S. 368, 377 n.5 (2011); Caldwell v. Janssen
Pharmaceutica, Inc., 144 So. 3d 898, 906 (La. 2014). We then compare that
level of force to the definition of “physical force” established by the Supreme
Court in Johnson and Stokeling. Having reviewed the pertinent State
authority, we conclude that domestic abuse battery under section 14.35.3 of
the Louisiana Statutes does not categorically require “physical force” within
the meaning of § 16(a).
Louisiana courts have explained that simple battery is an element of
domestic abuse battery. Both the Court of Appeals of Louisiana and the
Supreme Court of Louisiana identified two distinct elements of domestic
abuse battery: simple battery and the requisite domestic relationship between
the perpetrator and the victim. The court of appeals in State v. Davis
explained that in addition to the commission of a simple battery, “living
together as husband and wife is an additional element of the domestic abuse
battery crimes.” 176 So. 3d 580, 587–88, 97 n.22 (La. Ct. App. 2015), rev’d
on other grounds, 221 So. 3d 28 (La. 2017). Subsequently, in the same case,
the State supreme court confirmed the existence of these separate elements:
“The defendant does not challenge the appellate court’s finding that he
committed a simple battery upon [the victim]. The dispute in the present
Cir. 2017) (“[T]he identical language of . . . § 16(a) and § 924(e)(2)(B)(i) means that cases
interpreting . . . one statute are highly persuasive in interpreting the other statute.”);
Douglas v. United States, 858 F.3d 1069, 1071–72 (7th Cir. 2017) (“Leocal dealt with . . .
§ 16(a), which is similar to [§ 924(e)(2)(B)] in the Armed Career Criminal Act.”).

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case is confined to whether the household relationship element was met to
support the conviction for domestic abuse battery . . . .” Davis, 221 So. 3d
at 35 n.9.
In other words, domestic abuse battery is simple battery “committed by
one household member upon the person of another household member.” See
Davis, 221 So. 3d at 31 (citation omitted); see also Davis, 176 So. 3d at 597
n.22. And, indeed, this is how domestic abuse battery is charged in
Louisiana. See Cheney C. Joseph, Jr. & P. Raymond Lamonica, La. Crim.
Jury Instructions & Procs. Companion Handbook, §§ 10.33–10.34 (Feb.
2022) (noting that simple battery is a lesser included offense of domestic
abuse battery). The State rules of criminal procedure likewise refer to
domestic abuse battery as a particular type of simple battery, both involving
the same minimum level of force. See La. C. Cr. P. Art. 211.1(C)(1)(c)
(2011).
Finally, we note that Louisiana incorporates simple battery into the
definitions of other types of battery, including sexual battery, see State
v. Trackling, 921 So. 2d 79, 84 (La. 2006), battery on a police officer, see
State v. Johnson, 823 So. 2d 917, 921 (La. 2002) (per curiam), and
aggravated battery, see State v. Chehardy, 157 So. 3d 21, 25 (La. Ct. App.
2013); State v. Brooks, 499 So. 2d 741, 746 (La. Ct. App. 1986). The
conclusion that simple battery is an element of and shares a common level of
“force or violence” with domestic abuse battery is consistent with this
broader statutory structure and comports with the Supreme Court of
Louisiana’s directive to “presume[] that the intention of the legislative
branch is to achieve a consistent body of law.” Janssen Pharmaceutica, Inc.,
144 So. 3d at 907–08.
For over a century, Louisiana courts have held that simple battery under
section 14.35 of the Louisiana Statutes and its predecessors may include even
the most trifling or “merely offensive” touching. State v. Schenck, 513 So.
2d 1159, 1165 (La. 1987) (“An essential element of battery is ‘physical
contact whether injurious or merely offensive’ . . . .” (citation omitted)),
superseded by statute, La. Acts 1984, No. 924, § 1; State v. Mitchell, 466 So.
2d 514, 517 (La. Ct. App. 1985) (holding that merely touching another is
sufficient force to constitute a simple battery if done while masturbating
because such a touch is “certainly offensive”); see also State v. Dauzat, 392
So. 2d 393, 396 (La. 1980); State v. Tauriac, 813 So. 2d 1187, 1189 (La. Ct.
App. 2002); State v. Robinson, 549 So. 2d 1282, 1284 (La. Ct. App. 1989). 5
5

The present simple battery statute, section 14:35, was enacted in 1978. See La. Acts
1978, No. 394, § 1. However, Louisiana courts have continued to treat pre-1978 precedent
describing the level of force or violence necessary to commit a simple battery as applicable
to post-1978 offenses. See Robinson, 549 So. 2d at 1284 (citing State v. Foster, 101 So.
255 (La. 1924), and State v. Robertson, 20 So. 296, 298 (La. 1896) (“[A] battery is not

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Under Johnson, 559 U.S. at 139–40, if a statute criminalizes mere
offensive touching, it cannot categorically be a crime of violence. As noted
above, Louisiana has held its simple battery statute encompasses trifling or
merely offensive touching. See, e.g., Schenck, 513 So. 2d at 1165; Mitchell,
466 So. 2d at 517. As simple battery is a lesser included offense of and
defines the level of force required for domestic abuse battery, Davis, 221 So.
3d at 35 n.9; Davis, 176 So. 3d at 588 n.10, 597 n.22, domestic abuse battery
likewise criminalizes mere offensive touching. Thus, domestic abuse battery
under section 14:35.3 does not categorically require “physical force,” as
defined in 18 U.S.C. § 16(a), and interpreted in Johnson and Stokeling.
Because the respondent’s conviction is not categorically a conviction of
a crime of violence under 18 U.S.C. § 16(a), it cannot be a conviction of
a crime of domestic violence under section 237(a)(2)(E)(i).

III. CONCLUSION
Section 237(a)(2)(E)(i) of the INA incorporates by reference 18 U.S.C.
§ 16(a), which we have explained is “very similar” to the language of
18 U.S.C. § 924(e)(2)(B)(i). Matter of Guzman-Polanco, 26 I&N Dec. at 717
(citation omitted). Accordingly, we apply the construction of “physical
force” under 18 U.S.C. § 924(e)(2)(B)(i) as discussed in Johnson and
Stokeling when interpreting 18 U.S.C. § 16(a). Castleman’s interpretation of
“physical force” as part of the definition of a “misdemeanor crime of
domestic violence” is inapplicable.
As interpreted by the Supreme Court of Louisiana, domestic abuse battery
extends to mere offensive touching as discussed in Johnson. The statute is
therefore overbroad with respect to 18 U.S.C. § 16(a) and does not
categorically define a crime of violence. Accordingly, it cannot serve as the
predicate offense for removability under section 237(a)(2)(E)(i) of the INA,
8 U.S.C. § 1227(a)(2)(E)(i). We therefore sustain the respondent’s appeal,
vacate the Immigration Judge’s decision, and terminate the proceedings. See
Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012).
ORDER: The respondent’s appeal is sustained.
FURTHER ORDER: The decision of the Immigration Judge is
vacated, and removal proceedings are terminated.

necessarily a forcible striking with the hand or stick, or the like, but includes every touching
or laying hold, however trifling, of another person, or his clothes, in an angry, revengeful,
rude, insolent, or hostile manner.”)).

551


. Interim .Decision .#15911

MAL.t.bit OF Soma
In Visa Petition Proceedings
A-11629257
Decided by Board May .18, 1865
The relationship of stepmother-stepchild, within the ambit of Nation v, Esperdy,
239 F. Stipp. 531, does not exist between the petitioner and beneficiary, the
alleged child of petitioners ansband, since a family relationship between
them did not exist prior to beneficiary's arrival in the United States on
April 4, 1964, when she was over 18 years of 'age ; elk had met petitioner
Only once previously when the latter visited Barbados; and at the time of
the marriage creating such relationship beneficiary was in an orphanage and

remained therein for several years thereafter.

On November 4, 1965, this Board directed that the proceedings'
herein be remanded 'to the District Director in order that the
petitioner and her husband be accorded the opportunity of submitting evidence establishing the existence of a family unit in Barbados
and in the United States between the petitioner, her husband and

beneficiary. The purpose of receiving this evidence was to attempt
to ascertain if this Ere would be brought within the decision in
Nation v. Eeperdy, 239 F. Supp. 531.
The District Director thereafter took sworn statements in the
presence of counsel for the petitioner, from the petitioner, her husband, and from the beneficiary. At the conclusion of such testimony, the District Director found that no family relationship involving the petitioner and beneficiary existed prior to April 4, 1964,
when the beneficiary arrived in the United. States, ostensibly as a
visitor and for temporary residence only. He found that the continuous step-mother step-child relationship as contemplated by the
Nation decision (supra) had not been established and. accorclinely,
determined that the beneficiary is not a child as defined by section 101(b) (1) of the Act. The District Director's decision is now
before us by certification. .
Oral argument was heard before this Board on April 18, 1966.
Counsel for the petitioner appeared as did the Appellate Trial
628

• Inteiim. Decision #.1.5R
Attorney for iff, Immigration Service. The thrust of petitioner's
argument seems to be that although a faniily relationship between.,
the petitioner-beneficiary did not .commence until April 4, 1984,
nevertheless, the rule in Nation embraces this relationship despite
,,its short existence. Counsel for ,petitioner claims that there is
nothing in Nation that requires that -the family unit be formed prior
to the time the beneficiary entered. into the United States. He
points out that immediately upon the beneficiary's arrival in the
United States, she went to the home of the. petitioner and, thereafter, when she applied for adjustment of status to that of a student,.
she indicated that the. petitioner *and her father would support her.
.Counsel for respondent is cognizant that this contention might Well

constitute an extension of Nation, but he feels that inasmuch as
there is no restriction on duration of the (relationship in Nation,
that the beneficiary should be found to be the step-child of the
petitioner.
The Appellate Trial Attorney for the Service pointed out that
the beneficiary here was raised by her natural mother until 1954•
(she was then nine ye-are of age), and thereafter, was raised in an
orphanage. The putative fat
her of the beneficiary, the husband'
of the petitioner, came to the United States in 1956, and thereafter
married the petitioner. Subsequently, the petitioner 'visited Barbados for approximately three weeks during which time she met
the beneficiary, who was permitted to leave the orphanage in order
to. have dinner with the petitioner. When the beneficiary arrived
in the United. States she was over the age of 18 and had met the.
petitioner only once on the occasion above mentioned.
We note that the marriage between the petitioner and the puts.tire father of the beneficiary took place during the time that the
beneficiary wa.s a ward of the govprnrnett_ The beneficiary re-•

mained in the orphanage for several years after the marriage between the petitioner and her putative father. Our conclusion is that
the relationship so set forth in the facts of this case does not justify
a finding that it comes within the ambit of the Nation decision.
We do not believe that the petitioner is the step-mother of the
beneficiary for the purposes of section 101(a) (27) (A) -of The Act,
as amended by Public Law 89-236 and converted. to section 201(b).
Nor do we believe that the beneficiary is a child as defined by
section 101(b) (1) •f - the Act. Accordingly,, the following order
will be entered.
ORDER: It is ordered that the order of the District Director

be and the same is hereby affirmed.

629

e.


Interim Decision X2052

MATTER OF SIRHAN, ET AL.

In Deportation Proceedings
A-10711879
A-13598200
A-13578469
Decided by Board June 19, 1970
(1) In deportation proceedings a collateral attack may be made on a criminal court judgment on the question of jurisdiction.
(2) Where an alien was charged with deportability under section 241(a) (4)
of the Immigration and Nationality Act on the basis of a criminal conviction in California in 1966 for which he was sentenced for one year, with
sentence suspended; thereafter the court by order modified the sentence to
less than a year; and subsequently the conviction was expunged in 1969,
the deportation proceedings are terminated on the basis of the expungement (which eliminates the conviction as a deportation ground) rather
than as improvidently begun, since to a prospective employer or other person the latter may lend itself to the erroneous inference that proceedings
were terminated as a matter of administrative discretion, rather than because the alien is not deportable.
(3) Since authority lies with the superior court of California, through the
writ of coram nobis, to enter an order vacating an alien's prior conviction
in that court of violation of California marijuana laws and certifying the
case to the juvenile court, which accepted the alien as a ward, deportation
proceedings against the alien under section 241 (a) (11) of the Act are terminated since the conviction which formed the basis of deportability no
longer exists, having been vacated.
17H ARGES
Order: Act of 1952—Se'ction 241(a) (11) [8 U.S.C. 1251(a) (11) ]—Convicted of violation of marijuana law.
[SIRHAN, RODRIGUEZ-RODRIGUEZ]
Order:Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)]—Convicted
of crime committed within five years after entry
and sentenced to a year or more.
[TALAVERA-ARREDONDO]

Af42

Interim Decision #2052
ON BEHALF OF RESPONDENTS:'

SIRHAN:

David C. Marcus, Esquire
215 West Fifth Street
Los Angeles, California 90013
(Brief filed in lieu of aopearance at oral argument)

ON BEHALF OF SERVICE:

R. A. Vielhaber
Appellate Trial Attorney
(Filed brief in each case
and was heard in oral argument in SIRHAN)
Also, in SIRHAN, and

RODRIGUEZ-RODRIGUEZ :

Luis H. Garcia, Esquire
304 S. Broadway, Rm. 217
Los Angeles, California 90013
TALAVERA-ARREDONDO:

Agnes P. Matica, Representative
International Institute of
Los Angeles
435 S. Boyle Avenue
Los Angeles, California 90033

RODRIGUEZ-RODRIGUEZ :

William S. Howell
Trial Attorney
(Filed brief in each case)
Also, in TALAVERA-ARREDONDO:
Sam I. Feldman
Trial Attorney
(Filed brief)

These cases were tried separately before different special inquiry officers. Because the same issue is raised in each, we shall
consider them jointly. We shall approve the special inquiry
officer's termination of proceedings in each case.
These deportation cases are based on convictions which were
subsequently changed or vacated by the courts in which the convictions occurred. The Service contends that the courts had no jurisdiction to enter the subsequent orders.
If the subsequent orders are void, the original convictions can
serve as the basis for deportation orders except in Talavera's case
where the conviction has been expunged. If the subsequent orders
of the courts are to be given effect, the original convictions cannot serve as the basis for the deportation of Sirhan and Rodriguez.
In Sirhan and Rodriguez, we consider these questions : May we
determine whether the courts had jurisdiction to enter the subsequent orders? If so, did the courts have the jurisdiction to enter
them? If they had jurisdiction, are the aliens, nevertheless, deportable on the basis of the original convictions?
In Talavera, we consider these questions: Should the case be
terminated, as requested by the District Director, on the ground
that he improvidently started the case; or, as found by the special
inquiry officer and is asked by counsel, on the ground that the
subsequent order of the court eliminated the original order for
deportation purposes? Should we terminate on the ground that
the expungement eliminated the conviction for deportation purposes?

593

Interim Decision #2052
The individual cases will be briefly set forth. The special inquiry officer's orders state the facts fully.
Sirhan and Rodriguez were each separately convicted for violation of marijuana laws in a California superior court. Each was
charged in deportation proceedings with being deportable by reason of his conviction. In each case, the court then vacated the
conviction and certified the case to the juvenile court which accepted the alien as a ward. A person treated as a juvenile is not
considered a person convicted of crime. The special inquiry
officers held that the convictions on which the orders to show
cause were issued no longer existed. They therefore terminated
proceedings.
Talavera was convicted in a California superior court in April
1966 for issuing a check without sufficient funds. In May, he was
sentenced to imprisonment for one year. The sentence was suspended. Deportation proceedings were instituted. In October, the
court modified the sentence to make the term of imprisonment
less than a year. The conviction was expunged in May 1969. The
special inquiry officer terminated proceedings on the ground that
the modified order removed respondent from the class of deportable aliens since he was no longer an alien sentenced to a year or
more. The Service believes that the effect of the modified order is
a moot question because the expungement has removed the conviction as the basis for deportation; but it asks that the deportation proceedings be terminated on the ground that they were improvidently begun.
The State of California was represented at the sessions of
court when the changes in 'the court orders were made. The
change in Sirhan was made by a judge other than the one who
entered the original order. The changes in the other cases were
made by the same judges who entered the original orders. In Sirhan, a motion to vacate was made by counsel. In Rodriguez, the
court vacated the conviction on its own motion. In Talavera, the
modification was apparently made as a result of a motion or recommendation by Talavera's probation officer or the oral motion of
counsel.
HAS THE BOARD THE POWER TO ENTERTAIN A COLLATERAL
ATTACK ON THE JUDGEMENT OF A CRIMINAL COURT?

In determining whether an alien is deportable, the immigration
authorities cannot go behind a judicial record to determine the
guilt or innocence of the alien, U.S. ex rel. Mylius v. Uhl, 210 F.
860 (2 Cir., 1914). However, guilt or innocence is not involved

594

Interim Decision *2052
here. The question is the jurisdiction of the courts to change their
orders. This is a proper and necessary issue for consideration in
these proceedings, U.S. ex rel. Freislinger v. Smith, 41 F.2d 707
(7 Cir., 1930); Joseph v. Esperdy, 267 F. Supp. 492 (S.D.N.Y.,
1966) ; Doss v. State of North Carolina., 252 F. Supp. 298 (M.D.,
1966); Vasquez v. Vasquez, 240 P.2d 319 (Ct. App. Cal., 1952);
Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA, 1963) ; Matter of
H-9 I. & N. Dec. 460 (BIA, 1961); Matter of C—, 6 I. & N. Dec.
366 (BIA, 1954). See !RMatter of J—, 6 I. & N. Dec. 562 (AG,
1956). But see Taran v. United States, 266 F.2d 561 (8 Cir.,
1959). The party attacking the judgment must establish the lack
of jurisdiction by convincing evidence, Pen-Ken Gas & Oil Corp.
v. Warfield Natural Gas Co., 137 F.2d 871 (6 Cir., 1943), cert. deDied 320 U.S. 800; Choctaw & Chickasaw Nations v. City of
Atoka, Okl., 207 F.2d 763 (10 Cir., 1953) ; Delanoy v. Delenoy, 13
P.2d 719 (Cal., 1932).
In Sirhan and Rodriguez, we shall consider the issue raised by
the Service concerning the courts' power to change their orders.
We shall not make the inquiry in Talavera because the expungement there moots the issue as to the validity of the court's modification. It is settled law that expungement of a non-drug conviction eliminates it as a ground for deportation. Use of the
expungement is preferable to terminating the case as improvidently begun—an action, which, to a prospective employer or
other person, may imply that deportation proceedings were terminated because the District Director exercised a discretionary
power rather than because Talavera is not deportable. Since no
hardship to Talavera is shown because we rely on the expungement rather than on the modified order, we see no need to explore
the ramifications of the court's action in his case. See Matter of
Vizcarra-Delgadillo, Interim Decision No. 1917 (BIA, 1968).
POWER OF THE COURT IN CALIFORNIA TO MODIFY A
CRIMINAL JUDGMENT

California criminal courts have statutory and inherent powers
to modify orders. We will first consider the statutory power. Section 1203.3 of the Penal Code is cited by the special inquiry
officers as authority for the courts' modifications. The provisions
of this section follow:
§1203.3. [Revocation, modification or termination of probation by court:
Notice to probation officer: Discharge of defendant.] The court shall have
authority at any time during the term of probation to revoke, modify, or
change its order of suspension of imposition or execution of sentence. It may
at any time when the ends of justice will be subserved thereby, and when

595

Interim Decision #2052
the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation and discharge the person so held,
but no such order shall be made without written notice first given by the
court or the clerk thereof to the proper probation officer of the intention to
revoke, modify, or change its order, and in all cases, if the court has not
seen fit to revoke the order of probation and impose sentence or pronounce
judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these
sections.

We find that section 1203.3 continues the jurisdiction of the
court over the convicted person only so far as conditions of probation and matter relating to probation are concerned. The section does not authorize vacating a conviction. These are our reasons: The section is found among provisions relating to
probation. The heading of the section relates to changes of probation. All cases cited on the section concern judgments which involve matters relating to probation. The case of In re Scarbor)ugh, 173 P.2d 825 (Ct. App. Cal., 1946), held that under section
[203.3, a valid condition of probation must be present to justify a
:hange of judgment. It would seem, therefore, that when probaionary matters are not present, the section cannot be relied upon
s authority for the change of a judgment. Finally, the changes
f judgment expressly authorized by the section—changes involvng imposition of execution of sentence—would hardly authorize
acating a conviction.
Since section 1203.3 relates to changes involving matters of
robation, we must determine whether the change in Sirhan or
'odriguez involved a matter of probation. In both cases there
ere conditions of probation relating to service of time and obeence to the law. In addition, in Sirhan there were conditions
[ncerning use of narcotics, associations, employment and resiglee. It is clear that in neither case did the court order vacating
e conviction relate to a matter of probation. We conclude that
e court could not have found authority for its action in section
:03.3.
We now consider the court's inherent powers to modify an
der. There are two kinds, one short-lived, the other continuing.
le short-lived one expires when the original order is entered in
e minutes or when legal restraint has. been imposed upon the
fendant, People v. Thomas, 342 P.2d 889, 893 (Cal., 1959). Sirn was convicted in October 1966 and sentenced in December
66. The court orders were entered in the minutes in the same
[nths they were issued. The court vacated the conviction and
•ified the case to the juvenile court in May 1967. Rodriguez
-

596

Interim Decision #2052
was convicted and sentenced on June 22, 1967. The order was entered in the minutes in the same month. The court vacated the
conviction and certified the case to the juvenile court in February
1968. Since the modifying orders in both cases came after the
original judgments were entered in the minutes, it would follow
that the courts could not look to the short-lived power as authority
for the modifications. 1
The continuing inherent power to modify an order is exercised
through the writ of coram nobis. The writ lies to vacate or correct a judgment where no other remedy exists. It is granted when
a petitioner shows that, through no fault of his, a fact was not
presented at the trial, that presentation of the fact would have
prevented the rendition of the judgment, that the fact does not go
to the merits of the issues tried, and that he could not, in the exercise of due diligence, have discovered the fact at any time substantially earlier than the time of his motion for the writ, People
v. Shipman, 397 P.2d 933, 42 Cal. Rptr. 1 (1965). The petition
for the writ need not take any particular form. See People v.
Hamlin, 152 Cal. App. 2d 112, 312 P.2d 306 (Ct. App. 1957). It
may be made orally, People v. Curtis, 104 Cal. App. 2d 219,
230, P. 2d 877 (1951); People v. Sandoval, 254 P. 893 (Cal.,
1927). Contra, In Re Dyer, 85 Cal. App. 2d 394, 402, 193 P. 2d
69, 74 (1948).
We believe that it will be more fruitful to discuss the issues in
terms of a specific court case rather than in terms of general
rules. One Armendariz was convicted in May 1964 for a narcotic
violation. The trial judge wanted to commit him to a rehabilitation program, but erroneously concluded that he could not ask the
district attorney to declare the case an unusual one—a declaration which might have made Armendariz eligible for rehabilitation. The court sentenced Armendariz to imprisonment. He was
apparently committed. In March 1966, he filed a petition for a
writ of coram nobis in the trial court. The court denied the writ,
apparently in part, because it was mistaken on the same legal
point. On appeal, the trial court was reversed and given another
In several unreported decisions, we had raised a question as to whether
the limitation on modifications under the short-lived power might apply only
to modifications that increased punishment. We now conclude that the limitation applies even if the modification decreases punishment. Thus, where
after the entry of an order in the minutes, a court issued a corrected judgment beneficial to defendant in that it changed a term of imprisonment from
a consecutive to a concurrent one, the corrected judgment was set aside because the issuance after the entry of the original sentence in the minutes
was without authority, In re Wimbs, 921 P.2d 70, 55 Cal. Rptr. 222 (1966).

597

Interim Decision #2052
opportunity to consider the advisability of starting a proceeding
to commit Armendariz to the rehabilitation program, People v.
Armendariz, 60 Cal. Rptr. 796 (Ct. App., 1967). See also In re
Rascon, 413 P.2d 678, 50 Cal. Rptr. 790 (1966).
While Armendariz is not on all fours with the cases before us,
we see certain similarities. In Armendariz, the court acted without knowledge that it could have entered an order which would
have saved Armendariz from imprisonment—a punishment the
court did not want to inflict. The appellate court held that the
trial court had the power to correct this omission. In the instant
cases, the courses acted without knowledge that they could have
entered an order which would have saved the respondents from
deportation—a disability stemming from the punishment inflicted
and not intended by the courts. It appears to us that the power to
correct this omission existed. See Joseph v. Esperdy, supra. The
existence of a case such as Armendariz and the Service failure to
present precedents which affirmatively establish that the courts
here were without authority require us to conclude that the Service failed to carry its burden in the collateral attack on the modifying orders in Sirhan and Rodriguez.
One further comment is required before we leave this subject.
In Talavera, the Service presented a letter dated December 2,
1966 from the judge who modified his original order. He stated
that he would not have imposed the original sentence had he
known it might have resulted in an order of deportation, that
-flaking respondent subject to deportation was a penalty greater
;Ilan was intended, that the modification was an attempt to alleviate the conditions of the original sentence, and that he now beieves that he had no authority to enter the modification. The
;ervice relies upon this letter as support for its position in the
hree cases before us. The letter is entitled to respectful consider,tion, but we do not regard it as substantial evidence that the suerior courts in Sirhan and Rodriguez lacked jurisdiction to vaate their orders. Letters to similar effect were not presented in
hese cases which are under the administrative jurisdiction of the
ame District Director whosubmitted the letter in Talavera. The
otter cites no authority. The court has not vacated the order in
uestion.
Because our concern is with the convictions which were the
asis for the issuance of the orders to show cause, we need not
iscuss statutory provisions relating to acquisition of jurisdiction
y the juvenile court.
,

598

Interim Decision #2052
EFFECT OF THE ORIGINAL CONVICTIONS UNDER THE
IMMIGRATION LAWS

We come now to the third question in Sirhan and Rodriguez.
Did the subsequent orders of the courts remove the aliens' liability to deportation? The Service contends that because the orders
were allegedly made for this very purpose, to give them such an
interpretation would circumvent federal laws controlling the deportation of aliens. A similar contention was vigorously advanced
by the Service in Matter of O'Sullivan, supra. It was rejected by
the Board. We find no need to add to the discussion there. See Joseph v. Esperdy, supra. We do point out that while the inference
can be drawn that the courts here were motivated by a desire to
remove the aliens from liability to deportation, it is possible that
other considerations entered into their deliberations.
Pointing to the fact that a conviction (the finding of guilt) exists independently of a sentence (the imposition of punishment),
the Service representative contends that the vacating of a sentence has no effect on the existence of the conviction and permits
the conviction, where it is for a narcotic offense, to support an
order of deportation under section 241(a) (11) of the Act. It is
sufficient answer to say that' in Sirhan and Rodriguez, where
narcotic violations occurred, the courts vacated the convictions;
no convictions exist.
The appellate trial attorney contends that the courts' actions in
vacating the convictions in Sirhan and Rodriguez are unconstitutional because the actions subject the aliens to double jeopardy.
The contention must be dismissed. An accused in a criminal case
who is instrumental in having a conviction vacated may be tried
again on the same, or another indictment, for the very offense of
which he was convicted without violaing the provision against
double jeopardy, People v. Stratton, 28 P.2d 695 (Ct. App., Cal.,
1934). This is so even if the accused has served time under his
sentence, U.S. ex rel. Jones v. Nash, 264 F.2d 610 (8 Cir., 1959),
cert. denied 360 U.S. 936. Moreover, since the proceedings were
remanded to the juvenile courts, which are not criminal courts,
the doctrine of double jeopardy does not apply, People v. Silverstein, 262 P.2d 656 (Cal., 1953).
Cases dealing with expungements cited by the Service in Sirhan and Rodriguez; e.g., Garcia-Gonzales v. INS, 344 F.2d 804 (9
Cir., 1965), cert. denied 382 U.S. 840, are inapposite. Expungement is a State rehabilitation process which removes most of the
disabilities imposed by the State on a convicted person. In Sirhan
and Rodriguez, no convictions exist.

599

Interim Decision #2052
Since neither a pardon nor recommendations against deportation are involved in the instant cases, we shall not discuss the
cases concerning these matters which are cited by the Service.
Other cases cited by the Service; e.g., Guiterrez v. INS, 323
F.2d 593 (9 Cir., 1963), cert. denied 377 U.S. 910 (dictum) contain statements that a federal standard exists as to what constitutes a conviction. We agree with this. We have attempted to define such a standard, Matter of 0—, 7 I. & N. Dec. 539 (BIA,
1957). There is, however, no authority holding that a conviction
exists where there is no finding by a criminal court that a person
is guilty of a crime. On the contrary, when a court acts within its
jurisdiction and vacates an original judgment of conviction, its
action must be respected, Sakow v. INS, 314 F.2d 34 (3 Cir.,
1963) ; United States v. Shapiro, 222 F.2d 836 (7 Cir., 1955), interpreted in Matter of S—, 9 I. & N. Dec. 678 (BIA, 1962). See
Pino v. Landon, 349 U.S. 901 (1955).
ORDERS: (1) No change is made in the special inquiry
officers' orders in Sirhan and Rodriguez; (2) No change is made
in the special inquiry officer's order in Talavera. The basis for
termination of deportation proceedings is the fact that the conviction on which proceedings were instituted was expunged.

600


Interim Decision 4fr1801

Maw or WoNa-Sumo
In Visa Petition Proceedings
A-14620994
Decided by Board October lf, 1967
Tho visa petitinn tiled by the United States citizen petitioner to accord benelielam her blood niece, preference classification under section 203(a) (5) of
the Immigration and Nationality Act, as amended, as her adoptive sister, on
the basis of the alleged adoption of beneficiary by petitioner's parents (beneficiary's grandparents). is denied since under Chinese law a grandparent cannot
adopt a grandchild.

The case comes forward on appeal from the order of the District
Director, Los Angeles District, dated July 28, 1967 denying the visa

petition for the reason that the petitioner has failed to establish eligibility on behalf of the beneficiary as her sister through adoption in
that there has not been established a valid adoption pursuant to
Chinese law.
The petitioner, a native of China, a naturalized citizen of the
United States, 59 years old, female, seeks preference status under
section 203(a) (5) of the Immigration and Nationality Act on behalf
of the beneficiary as her sister. The beneficiary is a native and citizen
of China, V years old, married. The vise petition indicates that the
beneficiary was not related to the petitioner by adoption.

The order of the District Director sets forth the basis for the denial
in such detail that only parts thereof need be repeated for the purpose
of this decision. On July 27, 1966 the petitioner under oath stated
that the beneficiary was born of the marriage between Pak ShingWong, the petitioner's brother through adoption, and Quon-Lim. She
alleged that Pak Shing-Wong failed to support his wife and their
child and for that reason the petitioner's mother, with whom the
beneficiary and her parents resided, accepted responsibility for the
beneficiary. The beneficiary and the beneficiary's mother resided with
the petitioner's mother from at least July 25, 1922 (the date of birth
of the beneficiary) until 1955. The petitioner stated that the assumption of responsibility of the beneficiary was accepted as a family obliga484

Interim Decision #1801
lion and there was no ceremony or formal adoption of the beneficiary.
The beneficiary's father died in Korea in 1948 or 1949.
On July 28, 1966 the visa petition was denied for the following

reason :
There is no evidence that the petitioner's parents ever contemplated the adoption of their granddaughter either before her seventh birthday or at any time
thereafter. Acts of human kindness referable to an undertaking to rear and educate a helpless child do not alone prove an agreement to adopt, nor is standing
in loco parentis the equivalent of adoption. The mere fact that the petitioner's
Parents may have stood in loco parentis to the beneficiary granddaughter because
of the failure of the beneficiary's father to support his wife and daughter, is insufficient to erect adoption in accordance with the applicable provisions of the
Chinese Civil Code, since in order to be recognized as an adoption it is necessary
that the adoptive parents have brought up the child intending to adopt iti
The order of denial of July 28, 1966 concluded that the petitioner
had not borne the burden of establishing eligibility on behalf of the
beneficiary as her sister through adoption in that there has not been
established a valid adoption pursuant to Chinese law. The petitioner
appealed from the decision of denial, alleging that evidence of the
adoption would be forthcoming. The petitioner subsequently submitted a document purporting to be an original adoption agreement
effected August 22, 1927 in China and was permitted to withdraw her
appeal and reopen the case.
The case was forwarded to the Hong Kong office for investigation
and research. A report dated March 10, 1967 indicates that the beneficiary is the granddaughter of the persons by whom she claims to have
been adopted_ Further, her blood father, Wong Sau Din also known
as Wong Bah Sing, may be presently resident in the United States.

All independent witnesses swore that the beneficiary is in fact related
to the petitioner as niece to aunt and not as adopted sister. Only those
witnesses supplied by either the beneficiary or her family claimed
that an adoption took place. The concubine of the beneficiary's claimed
adoptive father in a sworn affidavit stated that the beneficiary, her
blood mother and her adoptive mother resided together in the same
household until the beneficiary was married at the age of 18 or 19. .4
report dated October 18, 1966 of an evaluation of the adoption agreement submitted by the petitioner by members of the consulate staff
indicated that the deed of adoption was not genuine for the reason
that the adoption paper was allegedly prepared in 1927 and that it was
almost 40 years old; paper of this type would have turned yellowish
after so many years but the adoption paper submitted was definitely
new and a bit stiff to the touch. A report from the Federal Bureau
1 The

denial was based upon the reasoning set forth in Matter

Dec. No. 1480.

485

of Chan, Int.

Interim Decision #1801
of Investigation dated May 9, 1967 is to the effect that examination of
the document did not disclose any evidence which would tend to prove
or disprove the authenticity of the document. The consular investigative report sets forth a detailed investigation. It is believed that
the synopsis set forth above is sufficient for our purpose.
The facts as alleged were presented to the Far Eastern Law Division
of the Library of Congress for evaluation of the legality of the claimed
occurrence of an adoption by the grandparents of their granddaughter.
In a communication received July 26, 1967 the Law Librarian furnished an excerpt from an outline of .Modern Chinese Family Law 2.
A person may not adopt a collateral relative by blood within the eighth degree.
or a collateral relative by marriage within the fifth degree, if they are of a different rank (Interpr. 761).
There is no statutory provision to this effect, but the Ssu-fa-yuan laid down
this rule in Interpr. 761 a June 7th 1932; XVI p. 14; THERY 105. The Judicial
Council based itself upon the legal principle that the relations between the adoptive obild and the adoptive parents should be of the same nature as those of legitimate children.
It is consequently not possible to have an adoptive child which would not be
of a generation following the adoptive parents. This evidently is a reminiscence
of the rules belonging to the institution of an heir.

Assuming, but not conceding, that an adoption did occur, such an
adoption would have been contrary to Interpretation 761, supra, in
view of the original collateral relationship between the alleged adopter
and adoptee. We concur with the District Director that the petition
must be denied for the reason that the petitioner has failed to establish
eligibility on behalf of the beneficiary as her adopted sister and that
there has not been established a valid adoption pursuant to law. In
addition, the visa petition must be denied on the ground that the petitioner has failed to bear the burden of establishing that an adoption
actually occurred.

ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
Van Der Valk, Marc. (Monuments Series, Monograph II; Peking: 1939, pp.
13546).
° The Collection of the Reasons, Decisions and Interpretations on the Sir
Codes of the Republic of China (in Chinese), Volume 2, p 120; interpretation
reconfirmed in "Letter from the Ministry of Judicial Administration of June 23,
1961, Tai (50) Teas No. 0365", The Collection of the Reasons, Decisions and
,

Interpretations on the Sim Codes of the Republic of China.

486


Interim Decision #1347

MATTER OF VARDJAN

In DEPORTATION Proceedings
A-11076903

Decided by Board June 3, 1964
(I) Reopening or application under section 243 (h), Immigration and Nationality
Act, for submission of interrogatories to a Yugoslav consular officer will be
denied because respondent has failed to meet the burden of establishing the
necessity for the interrogatories or that the evidence is readily available since
there is no showing of person before whom the interrogatories would be taken,
that witness would voluntarily present himself to answer the interrogatories or
authority exists in Yugoslavia to compel testimony, and there is no suggestion
that letters rogatory are feasible or desirable.
(2) Respondent's request for examination of Government report containing
background information on conditions in Yugoslavia should have been denied
on a claim of privilege as provided in 8 CPR 242.17(c).
(3). Respondent has not established that because of her anti-Communist sentiments her efforts to resist return to Yugoslavia would subject her to physical
persecution within the meaning of section 243(h) of the Act, if deported to
that country. (4) While respondent's economic prospects in Yugoslavia may not be good in
view or her age (GO), limited skills, anti-Communist sentiments, and reluctance
to return to that country, subsistence at a low level does not establish physical
persecution within section 243(h) of the Act even if such subsistence, in
whole or in part, results from restrictions on employment opportunities
imposed deliberately because of her race, religion, or political opinion ; only
total proscription of employment for such reasons suffices.
(5) Section 243(h) does not contemplate protection against any future vagaries
in the political scene under which the likelihood of physical persecution may
be greater than at the present time, since such future possibilities are not
amenable to proof; only where the likelihood of physical persecution presently
exists is withholding of deportation warranted.
CHARGE:

Warrant: Act of 1952—Section 241 (a) (2) (8 U.S.C. 1251(a) (2) ]—Remained
longer—Nonimmigrant visitor for pleasure.

Respondent applied for withholding of her deportation to Yugoslavia on the ground that she would be physically persecuted there.
She appeals from the special inquiry officer's denial of that application.
567

Interim Decision #1347
In our opinion respondent would not be subject to physical persecution
in Yugoslavia. Therefore we concur in the special inquiry officer's
action.
Respondent's authority to remain in this country as a visitor for
pleasure expired on June 8, 1959. She had entered at New York on
June VT, 1957. Deportation proceedings commenced on November 20,
1959, with service of the order to show cause. Initially the special
inquiry officer granted respondent voluntary departure with an alternate order of deportation. A private bill in respondent's behalf was
then pending in Congress. Respondent did not appeal from the special
inquiry officer's decision.
Congress acted adversely on the private bill. Accordingly the Service, on June 29, 1900, notified respondent that she had until August 3,
1960, to depart voluntarily from the United States. On August 2, 1960,
respondent, pursuant to section 248(h) of the Immigration and
Nationality Act, filed her application for withholding of her deportation to Yugoslavia, apparently anticipating that the Service would
direct her deportation to that country.i
The Service attempted to accord respondent a hearing upon her application before a special inquiry officer under the regulations then
in effect. Respondent's counsel objected to her examination by anyone
except a hearing officer appointed pursuant to the provisions of the
Administrative Procedure Act. On advice of counsel, respondent
declined interrogation and offered no evidence. The special inquiry
officer recommended denial of the application. The regional commissioner on January 17, 1961, entered an order of denial.
Respondent sought support for her position in the United States
District Court for the Southern District of New York. The court,
however, ruled adversely to respondent. On June 4, 1962, the Court
of Appeals affirmed that judgment, per curiam, on the lower court's
opinion.
After the regional commissioner denied respondent's section 243 (h)
application, the Service tried to obtain a Yugoslav travel document
for respondent. Respondent declined to appear at the Yugoslav consulate for a personal interview requested by a consular officer. At
the Service's request, however, respondent appeared with her counsel
at the Service's local office. AYugoslav consular officer also appeared.
No prior arrangement had been made with respondent for interview
by, or in the presence of, a Yugoslav official
Section 243 (h) provides as follows :
The Attorney General is authorized to withhold deportation of any alien within
the United States to any country in which in his opinion the alien would be
subject to physical persecution and tor such period of time as he deems to be
necessary for such reason.
1

568

Interim Decision 4t1347
Respondent says that the immigration officer, at the request of the
Yugoslav official, inquired why respondent had declined to appear at
the consulate voluntarily to renew her passport. Respondent, on
advice of counsel, declined to answer. Her attorney relates that prior
to that question he had strenuously objected to the procedure and that,
after respondent. declined Lo answer the one and only question put to
her, a further heated exchange followed. The immigration officer
then terminated the interview.
In July of 1962—subsequent to the Court of Appeals' decision affirming dismissal of respondent's complaint—respondent moved to reopen
the administrative proceedings. The Service at first opposed that
motion but later withdrew its objections_ The special inquiry officer

granted respondent's motion. After full hearing on the merits, the
special inquiry officer denied the application, entering the order under
review here. 2
At the reopened hearing respondent renewed her objections to the
special inquiry officer's legal competency to preside. Her counsel

indicated that he again raised this point, which the courts had decided
against respondent, merely to preserve any rights or benefits respondent might obtain in the event the Supreme Court in another matter

involving this issue rules to the contrary. Counsel has not pressed this
point on appeal. Therefore, we need not consider the effect of the
Court of Appeals' judgment in relation to these proceedings, nor the
correctness of the special inquiry officer's ruling that respondent's
renewal of the objection was frivolous.
Respondent requests that, if we are unable to rule favorably upon
her application on the record before us, we remand the case to the
special inquiry officer for submission of interrogatories to the Yug,oslav
consular officer who attempted to interview respondent in connection

with her passport application and for production by the Service of
certain reports in its possession covering general conditions in Yugoslavia. Although we believe we could dispose of this case without
reaching the procedural points raised by respondent, we shall discuss
them because of their importance for other proceedings.
I. Respondent's request for submission of interrogatories to a Yugoslav

government official

Respondent has . prepared written interrogatories directed to the
Yugoslav consular officer who was present at her interview at the
Service's New York office. The record shows that officer's address
in Belgrade. The interrogatories are not part of the record but were
2 Between administrative hearings, the regulations bad changed to give jurisdiction in 243 (b ) proceedings to the special inquiry officer, and, on appeal, to us.

569

Interim Decision #1347
marked for identification (Ex. R-3). We shall not, therefore, refer
to their specific contents but only to such matters as are developed in
the record. The record sufficiently reflects their purpose, however.

Thoi special inquiry officer refused to authorize presentation of the
interrogatories to the Yugoslav official. He said that, because it is
doubtful whether the official would or could be requested to answer,
the proposed testimony could not be considered readily available. He
also said the interrogatories are exploratory and of doubtful materiality here. We agree with the special inquiry officer's action, but the
denial may better be based on other grounds.
Respondent has the burden of showing the necessity of taking the
deposition of a prospective witness.' Respondent's counsel said that
through the interrogatories he seam to establish that the interview at

the Service office brought to the Yugoslav authorities' attention that
respondent seeks political refuge in this country, that she is not in
sympathy with the regime in Yugoslavia, that she fears the government there, and that, out of fear, she refused to appear at the Yugoslav
consulate to answer the consular officer's questions. Even assuming
that the occurrences at the Service office were reported to the home
authorities and tended to create the impression respondent seeks to
establish, the proposed interrogatories are not necessary as evidence
of the probable attitude of the Yugoslav authorities toward respondent
in the event of her deportation to Yugoslavia. We may concede on the
basis of the evidence of record that that attitude is apt to be hostile.
It is possible the Yugoslav authorities are not aware of the judicial
proceedings in respondent's behalf, although we consider such unawareness doubtful. Yet, apart from the judicial proceedings and the
interview in question, the record shows respondent's long absence from
Yugoslavia, her one brief contact with the consulate in 1958 for renewal of her passport, her failure in 1961 to, respond to the consulate's
invitation for an interview, and the consulate's awareness that respondent is under deportation proceedings here. It is obvious on these
facts alone, therefore, the Yugoslav authorities are aware respondent
is resisting returning to that country. Without events at the Service's
office, they might not now be as aware of respondent's reasons for
refusing to contact the consulate—assuming those events were reported
to them. If respondent were returned to the jurisdiction of those
authorities, however, they could by interrogation and investigation
easily ascertain her reasons for resistance.
Thus, even if the Yugoslav consular officer responded to the interrogatories, and respondent's expectations were met, the evidence, for
U.S. v. Ammeter, 5 F.R.D. 395 (E.D. N.Y., 1946).

570

Interim Decision #1347
our purposes, would be largely cumulative. Such evidence might at
best serve to bring into sharper focus respondent's relationship with
the Yugoslav authorities. Any corroborative value it might have for
other evidence of record, would be slight, however. Moreover, for
reasons which we shall develop later, we do not believe that the events
involving the consular officer unduly prejudiced respondent with the

Yugoslav authorities insofar as likelihood of physical persecution is
concerned.
Thus respondent has failed to discharge her burden of showing the
necessity for the interrogatories. For that reason alone they should not
be authorized. Because the situation is somewhat unusual and our
reasons for denying respondent's request may be important in other
proceedings, however, we shall refer to various additional justifications
for denial.
As the special inquiry officer has pointed out, the regulations for
proceedings under section 243(h) of the Immigration and Nationality

Act authorize respondent to submit such evidence as is readily available.4 In requesting presentation of interrogatories to the prospective
witness, the burden is upon respondent to show the witness will present

himself voluntarily to answer the interrogatories, or, if not, an authority in Yugoslavia to compel testimony. 5 Respondent also should
show the person before whom the interrogatories would be taken. She
has done none of these. Although her 'counsel, in supporting the request, mentioned that permission to take interrogatories have been
addressed to consuls in various parts of the world, he suggested no
procedure for the interrogatories here. The Federal Rules of Civil
Procedure provide a method for taking depositions in a foreign country Which we might adopt .° Our consular officers qualify as persons
before whom such depositions may be taken.
Respondent has not shown, however, that the Yugoslav government
permits our consular officers to take depositions—particularly when
the prospective witness is not only a Yugoslav national but a govern' 8 CFR 242.17 ( c)
° Cf. U.S. v. Avsmeier, supra'.
° Rule 28 (b) provides :
In a foreign country, depositions may be taken (1) on notice before a person
authorized to administer oaths in the place in which the examination is held,
either by the law thereof or by the law of the United States, or (2) before a person
commissioned by the court, and a person so commissioned shall have the power by
virtue of his commission to administer any necessary oath and take testimony, or
(3) pursuant to a letter rogatory. A commission or a letter rogatory shall be
issued on application and notice and on terms that are just and appropriate. It
is not requisite to the issuance of a commission or a letter rogatory that the taking
of the deposition in any other manner is impracticable or inconvenient * * *.

571

Interim Decision #1547
ment official—or whether any consular convention between. this country and Yugoslavia covers such a situation- 7
Moreover, in Branyan v. Koninklijke Luatvaart Maatsohappij the
Department of State acknowledged that letters rogatory rather than
notice to a consular officer or a commission provide the only fAnsible
means of obtaining the testimony of government employees and the
production of official records.9 Although the information sought in
Brangan was voluminous, technical, and complex—involving investigation of an airplane crash—the principle appears equally applicable
here. Consular officers would naturally be reluctant to take testimony
from officials of the host country, particularly in a matter which
might be sensitive to the host government. Respondent does not even
suggest that letters rogatory are feasible or desirable here.
Finally, respondent seeks to obtain what would in effect be admissions against interest by a Yugoslav official. If that official were willing to make any statement at all (and assuming that a suitable method
for taking the statement could be found) the possibility of obtaining
probative evidence favorable to respondent's cause is remote. 9
IL Respondent's request to examine certain reports contained in the
Service's records

Respondent refers to administrative proceedings before the Service
in the ease of a certain Yugoslav national. Those proceedings have
been cited in judicial decisions." In reaching its decision in that case,
the Service relied upon certain reports obtained through various official sources. Those reports contained background 'information on
conditions in Yugoslavia. Respondent requests that the reports be
made available for her examination.
The special inquiry officer denied this request on the ground that
there is no showing that the information is sufficiently current and
relevant to the particular facts and circumstances here to justify its
production, and on the further ground that respondent's request
appears to be a fishing expeditiOn. The special inquiry officer also
mentioned—apparently as an additional reason for not directing production of the report—that some of the information may be confidential. He did not, however, specifically assign any claim of privilege
See generally 22 U.S.C. 841, 816, 1195, 1203.
8

13 F.R.D. 425 (S.D. N.Y., 1953).
Compare Sang Ryup Park v. Barber, 107 F. Supp. 605 (NJ/ Calif., 1952)-

a somewhat analogous situation in reverse. There the Service sought evidence
of nonpersecution from an interested foreign official.
° Matter of Sale, A-9555532, April 28, 1958, discussed at length in Dombroeelle v. Esperdy, 198 F. Supp. 488 (1961) .

572

Interim Decision #1347
to the documents. The trial attorney objected to production of the
reports but did not specifically raise any claim of privilege.
Although we believe the special inquiry officer's denial of this request
should have been based upon an assertion that the information is
privileged under the regulations, we shall not disturb his ruling. 11
Wearfmilwthnoa icrespdntkoxamine. In our opinion, the regulations protect it from disclosure.
We also believe the information would not materially assist respondent's case. The burden upon respondent is heavy, however. Evidence having a direct bearing upon an application for section 243 (h)
relief is difficult to obtain. In proceedings under section 243 (h),
therefore, we would be inclined to be liberal in determining the reasonableness and propriety of a request to examine information in the
possession of the Government, if that information were nonprivileged.
III. Background for respondent's application under section 243(h)

Respondent is a national of Yugoslavia of German extraction. Her
birthplace was formerly in Austria. Now , however, it is in Yugoslavia. Respondent is 60 years old, married but separated.
Respondent completed eight years of elementary schooling in her
homeland. Shi lived in this country from 1920 to 1926. She then
returned to Yugoslavia where she married that same year She and
her husband separated in 1951: In Yugoslavia respondent worked on
land belonging to herself or her family and did housework. She has
worked as a housekeeper in this country
Respondent's husband lives in Yugoslavia. She has a son and two
daughters. One daughter lives in Yugoslavia. The son and other
daughter live in Germany. In this country respondent has two sisters
and a brother.
Respondent testified that she and members of her family favored re-

establishment of the Royal Government after World War II. She
says they were known to be opposed to communism. Apparently she
and her family were relatively large landholders.
In 1942 respondent's husband was arrested by the partisans and
ahnost shot, but he escaped. He spent most of the war in Italian and
German camps. Respondent's sister and brother-in-law were also
sentenced to death by the partisans, but escaped. One of respondent's
daughters, who was told the partisans planned to kill her, had to flee
to Italy.
". 8 CFR 242.17( c) provides in part :
The determination under section 243(h) of the Act may be based upon information nut of record if, in the opinion of the special inquiry Meer or the Board,

the disclosure of such Information would be prejudicial to the interests of the
United States.

573

Interim Decision #1847
Respondent's mother left Yugoslavia in 1955 and went to Austria,
where she died about a year later. Upon her death the Yugoslav government confiscated her property. About 1950 respondent had also
lost a large piece of land and a house. She owned this property with
her husband. Respondent's testimony is not too clear, but it appears
the government took for some special purpose considerable property
where her land was located. Respondent received no compensation
for her or her mother's land but her husband received a piece of property in exchange for his half of the property which he and respondent
owned.
IV. Respondent's reasons for anticipating physical persecution in Yugoslavia
Respondent's contention that she will be physically persecuted in

Yugoslavia rests generally upon her testimony that she and her family
are known as anti-Communists and that she would now be in even
greater disfavor with the Yugoslav authorities because of her unauthorized absence from that country and her refusal to return. She
points to the Communists harassment of herself and members of her
family through threats of, or attempts at, violence and by confiscation
of her property and her mother's property without compensation.
Respondent also believes that, because she has lost her farm land, she
would be unable to support herself in Yugoslavia. She says no individual in Yugoslavia would employ her because there is no private
work and the government would not want her.
Respondent's testimony, at best, shows that she encountered socioeconomic difficulties in Yugoslavia because she was known not to be
sympathetic toward the Communist regime. She never suffered any
actual physical persecution. We do not believe her position would be
appreciably worse if she were to return there.
The threats of bodily harm and attempts at physical violence which
respondent says were directed against members of her family, occurred
during the war. Partisang made them. Respondent testified vaguely
concerning the reasons for the partisans' actions. Her testimony
suggests certain possibilities, however. The partisans may have considered respondent's family either was not supporting them sufficiently
or represented actual opposition. Respondent indicates she and her
family favored King Peter. The partisans may also have been opposed
to respondent's family because of their ethnic origin, or their holdings
of land. In any event, the wartime occurrences do not indicate any
active opposition to communism which might now be apt to lead to
hostile treatment of respondent at the hands of the Yugoslav authorities. Moreover, the past actions of those authorities in confiscating
land belonging to respondent and her mother would also be unlikely to
574

Interim Decision #1317
cause independently any new reprisals against respondent or to aggravate seriously any harsh treatment arising from other causes_
Respondent's testimony giving the reasons underlying the taking of
her land is also vague. Apparently the government wanted at least
part of it for some specific public purpose. Respondent believes she
was not compensated because of her anti-Communist record, but such
loss, even though severe economically, did not amount to physical
persecution.
Respondent's age and limited skills would doubtless restrict her
employment opportunities in Yugoslavia. The authorities there might
intentionally further restrict respondent's employment opportunities
because of the matters to which she has testified, including her attempts
to avoid returning to her homeland. We doubt, however, that respondent's fears that in Yugoslavia she would be totally without any
means of support would be realized. Her economic prospects would
not be good, but subsistence at a low level does not meet the statutory
standard for physical persecution, even if such subsistence, in whole or
in part, results from restrictions on employment opportunities imposed
deliberately because of the individual's race, religion, or political
opinion. Only total proscription of employment for such reasons

suifices.12 Respondent has not offered any evidence to corroborate her
statement that the authorities would not want her because they know
she is against them and would not care for her—how she lives, and
what she does, or if she dies.
Respondent says that if deported to Yugoslavia, she would be taken
into custody, given a hearing, put in prison and maybe beaten up. She
says she will have no freedom in Yugoslavia.
We believe respondent would probably be questioned by the Yugoslav authorities if the were returned to her homeland. Possibly she
would be confined during such examination. We believe any such
confinement would be relatively brief, however. We see nothing in the
record which indicates any likelihood of a prolonged investigation.
Contrary to respondent's expectations, we also see little or no likelihood respondent would be imprisoned as a result of investigation. If
by any chance respondent were imprisoned, we believe confinement
would be for a relatively brief period of time. There are no circumstances in this record which indicate otherwise. Certainly, no reason
appears for believing that respondent would be subject to imprisonment so prolonged or under such severe conditions as to constitute
physical persecution.
upunat v. Harney, 297 F. 2d 744 (CA. 3, 1982). Cf. Sonic v.
289 (0.A. 7, 1962).
575

Flagg, 303

P. 2d

Interim Decision #13117
Current evidence of respondent's attitude toward the Yugoslav authorities is reflected primarily in her reluctance to return to her country. The record, however, contains nothing to distinguish her case
from the numerous cases of Yugoslav nationals who have attempted
strenuously to remain in this country rather than return to Yugoslavia.
Respondent says that the incident -which occurred in the presence of
the Yugoslav consul at the Service office is the worst thing that could
happen to her in her relations with the Yugoslav authorities. She
based her motion to reopen these proceedings upon that incident. We
believe she has exaggerated its importance. The most favorable inference in her behalf that we can draw is some emphasis of her reluctance to be interviewed by a Yugoslav, consular officer and to participate in any steps designed to enable this country to return her to Yugoslavia. The consulate, of course, was aware of such reluctance. The
attempted interview proposed to overcome it.
Yugoslav authorities may pay some special attention to respondent's
role at the attempted interview, if respondent is returned to Yugoslavia
and subjected to interrogation or investigation. Respondent, therefore, has cause to be concerned. We do not believe she need. anticipate actual physical persecution, however. We doubt that the Yugoslav authorities would take such a severe view of the matter. Thus
the incident is by no means dispositive of the issue here.
We believe respondent while testifying had in mind primarily the
harsh conditions in her homeland immediately following World War
II. Political restrictive measures against individuals have relaxed
considerably in Yugoslavia, even since respondent left there in 1957.
Li the light of such current conditions as we may officially notice, and
on the basis of respondent's own circumstances as shown in the record,
we perceive no valid grounds for anticipating respondent would be
physically persecuted if deported to Yugoslavia. Considering respondent's case as a whole, the Yugoslav authorities are at most likely
to subject respondent to some form of social, and economic sanctions.
Respondent's individual freedom may even be severely limited in numerous ways short 'of actual incarceration. Section 248 (h) does not
protect against such sanctions and restrictions, however.
Respondent has submitted several pieces of documentary evidence
in the form of a book, reports, congressional correspondence, articles
from a magazine and a Croatian newspaper, and newspaper clippings.
This evidence bears upon conditions in Yugoslavia. Some of this material traces events during World War II, the transition to Communist
control, and conditions in Yugoslavia in the period immediately following World War IL Other material is more current. The most
recent information of any substance covers events approximately

through 1961.
576

Interim Decision #1347
This material serves mainly two purposes. It provides background
information on living conditions in Yugoslavia under the Communist
regime which respondent would face if she were returned to that
country.13 We would, in any event, take official notice of much of
this information, but the material is helpful in calling our attention,
and the attention of the special inquiry officer, to such matters. More
importantly, the information serves as the basis for an argument which
would substantially enlarge the scope of section 243(h). Counsel attempts to relate to respondent's particular situation general statements
found throughout some of the material which describe difficulties of
life in Yugoslavia. These difficulties confront practically all persons
who do not accept communist principles.
As we have seen, however, within our conception of the scope of
section 243(h) there is no reason to believe respondent would be subject to physical persecution if returned to Yugoslavia. We could
grant her application, therefore, only if we interpreted section 243 (h)
to include the case of almost any person who has escaped from Yugoslavia or who, like respondent, has left legally but remained abroad
becauee of reluctance to return to a Communist regime. In other
words, we would have to so interpret section 243(h) that flight from
Yugoslavia per se renders a returnee subject to physical persecution 1 4
We are wrsvillbig to so rule without a clear congressional expression
that physical persecution within the meaning of the statute is that
broad. Otherwise, such an interpretation would appear to run counter
to the legislative policy for refugees as expressed through P.L. 86-648."
That policy limits recognition of the status of "refugee-escapee" even
though the critical words in the definition of that term—"persecution
or fear of persecution on account of race, religion or political opinion"—are, we believe, susceptible of a broader interpretation than the
term "physical persecution." in section 243 (h)." Clearly section 243
(h) of theAct is to be applied selectively.
Among the material submitted by respondent, and accepted by the
special inquiry officer to the extent of particular passages selected by
respondent, is Milovan Djilas' book, The New Class (Ex. R-7). One
Included also is information on the plight of refugees from 'Yugoslavia.
We believe the dispute between the special inquiry officer and respondent over
the incident at the Service office as a "bootstrap operation" involves essentially
the special inquiry officer's reluctance to rule that respondent's section 243(h)
application and the Incident before the consular officer per se justify withholding
of her deportation. The effect of such factors should not be disregarded, but
neither is in and of itself conclusive.
11 74 Stet. 504, as amended 76 Stet. 124. The amendment removed the original
expiration date of July 1,1962.
" The definition of "refugee-escapee" in section 15 of P.L. 85 316, 71 Stet. 643,
was adopted by P.L. 86-648.
"

"

-

577
768-456--65-38

Interim Decision #1347
of those passages itself refutes part of respondent's argument. In
speaking of discrimination practiced by a Communist dictatorship,
Djilas says:
Persecution of democratic and socialist thought which is at variance with that
of the ruling oligarchy is fiercer and more complete than persecution of the most
reactionary followers of the former regime. This is understandable: the last
named are less dangerous since they look to a past which bus little likelihood
of returning and reconquering.17
By her own testimony respondent favors the old regime. It is extremely doubtful, however, that even. a Communist court would classify her as a highly reactionary follower of that regime. Moreover,
despite respondent's experience in living outside of Yugoslavia, it is,
if anything, more doubtful that she would become in Yugoslavia such

an articulate spokesman for Western ideas and ideals as to become
subject to physical persecution. Nothing in the supporting material
submitted by respondent alters our opinion that respondent faces only
the difficulties ordinarily experienced by returnees to Yugoslavia.
Respondent's testimony indicates that she expects long and harsh
imprisonment, beatings, and possibly even death. The report on the
European refugee situation prepared in 1959 by, the Zellerbach Commission, which respondent submitted in evidence, describes the usual
fate awaiting Yugoslav returnees. The commission's interviews with
numerous refugees indicate the possibility of imprisonment at hard
labor for a few months is not uncommon. More important, however,
the returnee will almost certainly be out of favor with the regime.
Such lack of favor will probably find practical expression in discrimination in such things as employment and housing and perhaps
even a greater curtailment of individual freedom than the populace
as a -whole experiences.
The extent of such difficulties -will, of course, vary greatly in the
individual case. There are many variables. Among these variables

are the individual characteristics of the returnee, the individual characteristics of the local Communist officials with whom the returnee
comes into most intimate contact, and the overall political atmosphere
at the time any particular hardship or difficulty is imposed. Among
these factors we can here consider only respondent's individual characteristics and the current conditions and political atmosphere in
Yugoslavia—to the extent that we may officially notice such conditions and atmosphere.
Respondent argues that section 243(h) contemplates as well protection against any future vagaries in the political scene under which
the likelihood of physical persecution may be greater than at the
' At 144, 45.

2

573

Interim Decision #1847
present time. We do not agree. Such future possibilities are not
amenable to proof and consequently their determination is not amenable to the adjudicative process. Only where the likelihood of physical
persecution presently exists in a particular situation is withholding
of deportation warranted. We do not find such likelihood here.
ORDER: It is ordered that the appeal be and hereby is dismissed.

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