Interim Decision #1453

MATTER or PALACIO

Li Visa Petition Proceedings
A-14242599
Decided lty Board April 7,1965
Since beneficiary, an illegitimate child at birth in the Philippines on nine 27,
1844, was over 18 years of age at the time the judgment of legitimation was

granted on September 15, 1964, by the Superior Court of the State of California, he is not a "child" within the definition of section 101(b) (1) (0),
Immigration and Nationality Act, as amended, and, therefore, not, entitled to
nonemots status. (Note: See Also. Matter of Palacio, int. Dee_ No. 1410, of
which the alien in this case is also the subject.)

The case comes forward- on appeal from the order of the District

Director, San Francisco District, dated October 27, 1964,' denying
the visa petition for the following reasons: evidence submitted in
support of the petition reflects that the beneficiary was born June
27, 1944; he was an illegitimate child at birth in that the petitioner
was never married to his mother; he was legitimated by Judgment
of Legitimation granted by the Superior Court of the State of California on September 16, 1964; he is therefore, not a "child" as

defined by section 101(b) (1) (C) of the Immigration and Nationality Act in that he was over the age of 18 years at the time of
legitimation.
The petitioner, a native of the Philippines and a citizen of the
United States by naturalization on October 9, 1946, at Manila, Philippines, 60 years old, male, seeks nonquota status on behalf of As
unmarried child, born June 27, 1944, a native and citizen of the

Philippines.. The certificate of baptism relating to the beneficiary
shows that he is the child of the petitioner and Nena de Silva. Supporting documents establish that the petitioner's prior marriage to
one Librada Palacio was terminated by a decree of the Superior

Court of the State of California for the City and County of San
Francisco on April 26, 1963. He married his present wife, Maria
Dalisay Angeles on May 6, 1902. There his also been submitted
132

Interim Decision #1453
a copy of a decree of the Superior Court of the State of California,
City and.' County of San Francisco, entitled "In the Matter of the
Petition of Fred It. Palacio To Be Declared Legitimate Father of
Amor Palacio" and five other children entered on September 15,
1964, declaring that the petitioner is the legitimate father from birth
of the beneficiary and the children included in the Judgment, that
the said minor children are -legitimate children of the petitioner
and that a valid and subsisting relationship of parent and child
exists between petitioner and the said minor children.
In connection with the appeal the petitioisir has submitted money

order receipts to the beneficiary dating back to December 14, 1961;
and submitted an affidavit of the uncle and aunt of the petitioner's
former wife, Librada Echaniz Pale.cio, to the effect that the couple
had sepaiated since the year 1939, that they obtained a legal separation in 1944 from the Mayor of Kuyapo, Philippines, that petitioner
has made many trips to locate his wife but to no avail, and that their
niece has been Atissing since the year 1945. In addition, counsel
has submitted some of the moving papers which culminated. in the
Judgment of Legitimation by the Superior Court of the State of
California; City and County of San Francisco on September" 15,
1964. These papere are entitled "In the Matter of the Petition of
Fred R. Palacio Tci Be Declared Legitimate Father of Amor Paled*" et al., or "Petition of Father To Be Declared Legitimate Father
of Minor Children," and consist of the consent of the present wife
to petition of father to be declared legitimate father of minor children dated. July 10, 1964; the petition of the father to be declared
legitimate father of minor children in which he recites that the
natural mother of the children is Nena de Silva residing in Caloocan
City, Manlier Philippines, that the petitioner has publicly acknowledged. his children, that his name was placed on their-birth certificates as their father at his request and with his consent, that he has
lived with them in the Philippines until November 1957 when he
came to the United States, that he has not seen his fait wife,
Librada, since 1939 and that in September 1944 he signed a legal
separation but he did not see her and believes her to be deceased,
that on April 26, 1963, petitioner secured a divorce from the said
Librada on the ground of desertion and on May 6, 1963, he married
his present wife who has consented to the petition of her husband to
be declared the legitimate father of the children, that he has always
supported the children and is able to provide for and support them,
and wishes to males them heirs of his estate.
ment

Another court docu-

indicates that the natural mother of the children, Nena de
133

Interim Decision #1453

o

Silva, consented to the petition of the father to be declared the
legitimate father of the children therein named.
Section 101(b) (1) (C) of the Immigration. and Nationality Act includes in the definition of the term "child" a child legitimated under
the law of the child's residence or domicile, or under the law ,of the
father's residence or domicile, whether in or -outside the United
States, if such legitimation takes place before the child reaches the
age of 18 years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.i Section 230
of the California Civil Code entitled "Adoption of an Illegitimate
Child" has been construed us an out and out statute of legitimation.'

This section .provides that the father of an illegitimate child, by
publicly acknowledging it as his son, receiving it as such with the
consent of his wife, if he is married, into his family, and otherwise
treating it as if it were a legitimate child, thereby adopts it

as

such; and such child is thereupon deemed for all purposes legitimate
from the time of his birth. Section 230 specifically exempts that
section from the provisions of foregoing sections relating to formal
or judicial adoptions.
The Judgment of the Superior Court of the State of California,
City and County of San Francisco, which has been submitted in support of the visa petition does not indicate under what section of .the
California law it is based. However, the Judgment is entitled "In
the Matter of the Petition of Fred R. Palacio To Be Declared Legitimate Father of Amor Palacio" et al. The action appears to be one
for declaration of parental relationship pursuant to 'section 231 of
the California Civil Code which provides: "An action may be
brought for the purpose of having declared the existence or nonexistence between the parties of the relationship, of parent and child,
by birth or adoption." Or, possibly, it may be an action under section 255 of the Probate Code of California which has been held to be
not a legitimation statute but amply a statute of succession.' Sectibn 231 of the California Ci4i1 Code is a paternity or filiation sta2 It does not appear that the beneficiary was legitimated under Philippine
law. Section 269 of the Civil Code of the Philippines provided that only natural children can be legitimated. Children born outside of wedlock of parents
who, at the time of the conception- of the former, were not disqualified by an
impediment to marry each other, are natural. In the instant ease, when the

beneficiary was born in 1944. to the petitioner and his blood mother, there
was in existence a prior undissolved marriage of the petitioner and his first
wife.
'Balk/dine v. De Silva, 226 P.2d 623, 632 (9th Cit., 1955) affirmed, 351 U.S.
570, rehearing denied, 852 V.S. 859, 302 U.S. 907.
•Banantine v. De Silva,:
134

Interim Decision #1453
tute. On the other hand, section 230 is a legitimation statute by a
course of conduct which satisfies the requirements of the statute.
We have previously held that acknowledgment by the natural
father (domiciled in California) of a child bore out of wedlock in
a foreign country and 'residing in that country, without bringing the
child. into his family is insufficient to effect legitimation. under section 230 of the California Civil Code. 4 In the case of Louie Wale.
You v. Nagle, 27 F.2d 573 (9th Cir., 1928), although the evidence
established public acknowledgment by the father, it was insufficient
to prove that the father received the illegitimate child. into his home
or settled place of cohabitation of which he was the head. The

domicile of the father was in the State of California and not in
China, because, if his home and settled place of habitation was in
China, his domicile would likewise be there and the statutes of
California could have no application. and there could be no legitimation.

-

In the instant case, the beneficiary has

-

always resided in the Philippines whereas the father appears to have resided in California
since 1957. Although the evidence establishes public acknowledgment, there is no evidence that the petitioner received the
beneficiary in his home in the State of California, which we have
held to be 8, requirement of the statute. The Judgment of the Superior Court of the State of California County and City of San
Francisco, does not appear to be a Judg;ent pursuant to section 230
of the California Civil Code: That Judgment of Legitimation was
entered after the beneficiary had reached his 18th birthday, and
thus fills to-meet the requirement of section 101(b) (1) (C)' of the
Immigration and Nationality Act. In the event that the petitioner
can produce evidence or a judgment by a California court showing
that the petitioner has been legitimated. pursuant to section 230 of the
California Civil Code together with the date of such legitimation,
the proceedings may be reopened. Upon the present record the appeal will be dismissed without prejudice to a reopening if the petitioner can establish legitimation. of the beneficiary prior to his 18th
birthday.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
••. .
`Matter of Wong, Int. Dec. No. 1287; Matter of Tinsley, Int. Dec. No. 1323.

135


Interim Decision #181a

MATTER OF CRAN
In Visa Petition Proceedings
A-17106137

Decided by Board November 00, 1967
A valid adoption under Article 1073 of the Chinese Civil Code can occur even
though the adoptive parent is not at least 20 years older than the adopted child:
since such an adoption is only voidable and not automatically void. Bence,
where petitioner and beneficiary have lived together since petitioner's adoption of beneficiary in China in 1947 (when the latter was 4 years of age) until
the petitioner departed for the United States in 1966, the adoption is a valid
subsisting adoption in the absence of evidence that the adoption relationship•
has been terminated, notwithstanding petitioner is only approximately 10 yearsolder than the beneficiary. Matter of Soo Hoe, Int. Dec. No. 1461, modified.]

The case comes forward on appeal from the order of the District
Director, Portland, Oregon District, dated September 28, 1967 holding that the Chinese law on adoptions contained in the Chinese Civil
Code of 1930, Article 1073, provides that an adopter must be at least
20 years older than the person to be adopted; inasmuch as the petitioneris approximately 16 years older than the beneficiary and is unable to
meet this requirement of law, the petitioner has failed to establish
eligibility for the benefit sought under the immigration laws for thereason that no valid parent-child relationship exists in this ease.
The petitioner, a native and citizen of China, a lawful permanent
resident of the United States, female, born October 24, 1926, seeks.
preference quota status on behalf of the beneficiary as her adopted son.
The beneficiary is a native and citizen of China, born October 16, 1942..
The petition is supported by a copy of an adoption agreement between the petitioner and the natural father of the beneficiary which
establishes that the adoption occurred on CR 35-12-14 (January 5,.
1947) when the beneficiary was about four years old. A memorandum:.
in the file dated July 12, 1967 contains details of an interview with
the petitioner and the conclusion that nothing was established duringthe course of the interview that would tend to cast doubt on the veracity of the petitioner's claimed relationship to the beneficiary.
It is noted that the petitioner was approximately 16 years older than:
513

Interim Decision #1810
the beneficiary at the time of the adoption. The denial of the visa
petition is predicated upon Article 1073 of the Chinese Civil Code of
1930 which provides that the adopter must be at least 20 years older
than the person to be adopted. Although there is no indication in the
decision of the District Director, he may have placed reliance upon the
headnote in Matter of Soo-Hoo, Int. Dec. 1461 (April 22, 1965) which
states that the beneficiary's adoption in China by the petitioner in 1938
when the former was 12 years old and the latter was 27 years old does
not constitute a valid adoption in accordance with Article 1073 of the
Chinese Civil Code which provides that the adopter must be at least
20 years older than the person to be adopted.
Close examination of Matter of Soo-Hoo, discloses that the headnote is erroneous. Matter of Boo Hoo involved an adoption of the beneficiary in 1938 when the beneficiary was 12 years old and the petitioner
alleged that there had been a written adoption document (which was
required for a valid adoption) which he claimed to have lost. No
details were furnished as to the nature of the written document. The
only corroboration of such an adoption was hearsay evidence by the
petitioner's husband that his wife wrote him that she had a document
concerning an adoption signed by the beneficiary's blood mother. The
affiants merely testified to the existence of an adoption relationship
which might have commenced without a writing. No competent secondary evidence was furnished of the existence of a written adoption
agreement. It was concluded that the petitioner had not borne the
burden of establishing eligibility on behalf of the beneficiary as her
adopted son and that there had not been established a valid adoption
pursuant to Chinese law. Reference in passing was made to the provisions of Article 1073 of the Chinese Civil Code but no comment was
made thereon. The decision would have been the same even if Article
1073 had been complied with, because of the failure of the petitioner
to bear the burden of establishing written proof of adoption as required
under the Chinese Civil Code.
Inquiry was directed to the Library of Congress regarding the effect
of Article 1078 of the Chinese Civil Code. Information furnished on
November 14, 1967 by Dr. Tao-Tai Hsia, Chief of the Far Eastern Law
Division is as follows:
-

Article 1078 of the Nationalist Chinese Civil Code states that the adopter must
be at least 20 years older than the person to be adopted. According to the following documents (1) Judicial Yuan interpretation chief& No. 3120, Republic of
China year 35 (1048) and (2) Supreme Court Decision shone No. 886, Republic of
China year 32 (1943), if the adopted child is not 20 years younger than the
adaptor, the adoption is not automatically void. Such adoption is only voidable.
It may be nullified by the court upon the petition of the person who has the rights
to make such a petition.

514

Interim Decision #1810
Inasmuch as the evidence submitted by the petitioner establishes
a valid adoption, that the petitioner and the beneficiary have been
living together since the adoption in January 1047 until the petitioner-

departed for the United States in August 1966, and there is no indication that the adoption relationship has ever been terminated, it must
be regarded as a valid subsisting adoption. Accordingly the visa petition will be approved.

ORDER: It is ordered that the visa petition be approved for
preference quota status on behalf of the beneficiary.

515


MATTER OF

SS. YARMOUTH

In FINE Proceedings
MIA-10/61.210
Decided by Board June 6, 1960

Fine—Section 273(d) of 1952 act—Not imposed where only evidence of stowaway's presence on particular vessel is own statement.
Violation of section 273(d) not established where sole evidence that alien
arrived aboard named vessel was his own statement which was contradicted
by affidavits of vessel's master and crew members and which was otherwise
questionable because of alien's lengthy criminal record.
Basis

FOB FINE:

Act

of 1952—Section 273(d) [8 U.S.C. 1323].

BEFORE THE BOARD

Discussion: This appeal is directed to an administrative penalty
of $1,000 which the District Director at Miami, Florida, has ordered
imposed on the Eastern Shipping Company, owners and/or agents
of the above-named vessel which arrived at the port of Miami,
Florida, from foreign on August 14, 1959, for failure to detain the
alien stowaway G M aboard the vessel until he was inspected
by an immigration officer. The appeal will be sustained and the
fine remitted.
The alien stowaway involved, in an affidavit executed before a
Service officer after he was arrested ashore at Miami, has stated
that he arrived in the United States at that port aboard this vessel,
as above. He has claimed that he came here to visit, his wife, a
United States citizen whom the British government had deported
from Nassau about six weeks previously, having received word that
she was ill. He has alleged that he attempted to obtain proper
documents to enter this country legally but was unable to do so
because of a lengthy criminal record, including about 39 convictions
of charges ranging from drinking to assault and 10 months' imprisonment. He has asserted that he hid aboard this vessel at Nassau about 4:00 p.m. on August 13, 1959; that he had no trouble
getting aboard as he dives for coins for tourists at Nassau; and
that coin divers are given the freedom of the ship there. He has

averred that, after visiting his wife briefly, he tried to return
aboard this vessel to go back to Nassau; that a watchman would
675

not permit him to board it; that he then told the captain he had
stowed away on the trip over; that when he could not produce his
passport the captain told him to get off the dock and stay off ; and
that he then turned himself in to the Service.
The appellant has submitted an affidavit by the vessel's master
that it is his practice to have two guards posted in appropriate
positions near the ship to keep 'unauthorized persons from coming
aboard while it is in foreign ports; that he did so at Nassau, where
this stowaway claimed he boarded the vessel; that "coin divers"
are not permitted to board his vessel, contrary to the statement made
by the stowaway; and that he did not talk to the stowaway at
Miami, as claimed by the latter, but that the port captain there
related a similar incident to him around that date. The appellant
has also submitted affidavits by officers and members of the crew of
this vessel, some of whom are personally acquainted with the stowaway, that they did not see him aboard at any time here involved;
that they did not see any stowaways aboard on the trip to the
United States here in question; and that they did not hear anybody
mention that there was a stowaway aboard.
Liability to fine here is predicated solely on the stowaway's
statement, which is not persuasive evidence that he did arrive in the
United States as such aboard this vessel. It has been contradicted
by affidavits submitted in support of the appeal, as well as being
questionable in view of the stowaway's admitted lengthy criminal
record. The Service made no effort to substantiate it by inspection
of the boat and by interrogating him as to its description, to be
followed by an actual description of the boat.
Briefly, in circumstances such as those outlined above, the burden
is on the Service to establish the violation. This it has not done.
Accordingly, we will sustain the appeal.
Order: It is ordered that the appeal be sustained and that tine be
not imposed.

676


Interim Decision #1241

MA'ITER OF HAN

In DEPORTATION Proceedings
A-11475819
Decided by Board August 10,1982
A special inquiry officer at a deportation hearing has no authority to adjudicate
a visa petition to accord a respondent first-preference status under section
203 (a) (1) of the Immigration and Nationality Act or respondent's application
for a waiver of the foreign-residence requirement under section 212(e) of that
Act (See also, Matter of Rosenblatt, Int. Dec. No. 1260, and Matter of hie, Int.
Dee. No. 1304).
CHARGE:

Order : Act of 1952—Section 241(a) (2) (8 U.S.C. 1251(a) (2)1—Remained
longer—exchange visitor.

This case comes forward on appeal from an order entered by the
special inquiry officer on June 11, 1962, denying the respondent's application for adjustment of his immigrant status to that of a permanent resident as provided in section 245 of the Immigration and
Nationality Act on the ground that he is ineligible therefor but granting his request that he be permitted to depart voluntarily from the
United States, in lieu of deportation, and directing that if he fails to
depart when and as required he be depo
rted to England, the country
designated by him, on the charge designated above and further directing that if the aforementioned country advises that it is unwilling to
accept him into its territory, * * * he be deported from the United
States to Korea.
The respondent, a 33-year-old married male, native and citizen of
Korea, has resided continuously in the United States since his admission at Seattle, Washington, on September 27, 1955 as a nonimmigrant exchange visitor until September 26, 1956. He was granted
several extensions of his temporary period of admission, the last of
which expired on March 13, 1962. He has remained in the United
States without permission since the latter date. Deportation proceedings were instituted against the respondent on March 19, 1962 and a
53

Interim Decision #1241
hearing in deportation proceedings was held at Peace Bridge, Buffalo,
New York on May 1, 1962, at which time the respondent and counsel
admitted the truth of the factual allegations set forth in the order to
show cause and conceded deportability on the charge stated therein.
On the basis of the evidence present in this record the respondent is
subject to deportation under the provisions of section 241 (a) (2) of

the Immigration and Nationality Act, in that, after admission as a
nonimmigrant exchange visitor under section 101 (a) (15) of the Immigration and Nationality Act, he has remained in the United States
for a longer time than permitted.
On examination of the record we find that the respondent was
married to a native and citizen of Korea at Syracuse, New York on
January 21, 1961. A citizen child was born of this union at New
Hartford, New York on August 16, 1961 (Exs. 13 & 14). The respondent's wife is a lecturer in mathematics at Utica College, a division
of Syracuse University at Utica, New York (p. 21). A visa petition
executed and filed by Syracuse University on August 9, 1961 on behalf
of the respondent's spouse for the issuance of an immigrant visa under
section 203 (a) (1) (A) of the Immigration and Nationality Act was
approved by the Service on September 20, 1961. The respondent
received a M.D. degree from Taegu Medical College in Korea. The
respondent, as a part of his training as a medical scientist, is engaged
in research and the work is currently in progress in the Department
of Physiology at the State University of New York, Upstate Medical
Center in Syracuse, where he is enrolled as a candidate for the degree
of Doctor of Philosophy in Physiology. The respondent has been employed at the Masonic Laboratory since June 1960 at an annual stipend

of $T,500.
The -Meanie Foundation for Medical Research and Tillman Welfare at Utica, New York filed a visa petition with the special inquiry

officer to have the respondent accorded first preference status under
section 203(a) (1) of the Immigration and Nationality Act (Ex. 10) .
There was also filed with the special inquiry officer an application for
a waiver of the residence requirement under section 212 (e) of the Immigration and Nationality Act (Ex. 11). Counsel on appeal asserted
that the respondent was entitled to have the special inquiry officer
adjudicate his application for a waiver under section 212(e) of the
Immigration and Nationality Act and the petition to accord him
first preference status under section 203 (a) (1) since the aforementioned are ancillary to the respondent's application for adjustment of

his immigrant status to that of a permanent resident as provided in section 245 of the Immigration and Nationality Act. We Find no merit
to the aforementioned argument of counsel.
54

Interim Decision #1241
There is no authority conferred upon the special inquiry officer by
law or regulation to pass upon or adjudicate the petition executed by
the respondent's employer to accord him first preference status under

section 203 (a) (1) (A) of the Immigration and Nationality Act or
his application for a waiver as provided in section 212(e) of the
Act. Part 103.1, 8 CFR, confers upon District Directors the general
authority to determine all petitions and applications. Part 103.2,
8 CFR, among other things provides that every formal application
or petition shall be filed in accordance with the instructions contained
thereon, such instructions being incorporated in the particular sections
of the regulations requiring its submission. * " . Form 1-130 (Petition to Classify Status of Alien for Issuance of Immigrant Visa)
shows that the District Directors are the only ones authorized to approve or revalidate a petition to accord status under section 203 (a) (1)

of the Immigration. and Nationality Act.
The respondent was admitted to the United States as a nonimmigrant exchange visitor under section 101(a) (15) (J) of the Immigration and Nationality Act, as amended. Section 212(e) of the Immigration and Nationality Act provides that no person admitted to the
United States under section 101(a) (15) (J) or acquiring such status

after admission shall be eligible to apply for an immigrant visa, or
for permanent residence, * * * until it is established that such person
has resided and been physically present in the country of his national,
ity or his last residence, or in another foreign country for an aggregate
of at least two years following departure from the United States : * * *
or obtains a waiver of such two-year foreign residence requirement because of exceptional hardship upon the alien's spouse or child, if such
spouse or child is a citizen of the United States. The statute specifically provides that upon the favorable recommendation of the Secretary of State, pursuant to a request of an interested Government
agency, or of the Commissioner of Immigration and Naturalization
after it has been determined that departure from the United States
would impose exceptional hardship on the alien's spouse or child if
such spouse or child is a. citizen of the United. States or a lawful resident alien, the Attorney General may waive the requirement of such
two years' residence abroad * ".
Adjustment of status to that of a person admitted for permanent
residence under section 245 of the Immigration and Nationality Act
is dependent upon the alien's eligibility to receive an immigrant visa
and admissibility to the United States as well as an immigrant visa
being immediately available to him at the time his application is approved. Visa Office Bulletin No. 98 dated August 1, 1962 shows that
the first preference portion of the quota for Korea is pre empted for
a period in excess of two years and the remaining classifications for
-

55

Interim Decision #1241
Korea are either oversubscribed or unavailable. Since an immigrant
visa is not immediately available to the respondent, he is ineligible for
adjustment of his immigration status under section 245 of the Act.

The special inquiry officer's decision of June 11, 1962 is dispositive of
counsel's remaining arguments on appeal. The fact that the respondent may on some future date become the beneficiary of legislation,
which is now being considered by the Congress of the United States,
is not pertinent to the disposition of this appeal.
Upon full consideration of all the evidence of record, together with
counsel's representations on appeal, the decision of the special inquiry
officer will be affirmed. The respondent has been accorded the privilege of voluntary departure which is the maximum discretionary relief
available to him in the premises. For the reasons stated, the following

order will be entered.
ORDER: It is ordered that the appeal be dismissed.

56

'


Interim Decision #2255

MATTER OF COKER
In Visa Petition Proceedings
A-19509617
Decided by Board January 8, 1974
(1) In order to qualify as a "daughter" for preference classification purposes, a
beneficiary of a visa petition must once have qualified as a child of the
petitioner under section 101(b)(1) of the Immigration and Nationality Act, as
amended.
(2) Under the law of Nigeria, a child born out of wedlock is illegitimate; such a
child may be legitimated through the subsequent marriage of the child's
parents or by the father's acknowledgement. Acknowledgement involves
conduct or an act by the father which definitely indicates that the child is his
ow-n.
(3) Since petitioner has admitted that he never married the mother of the
beneficiary, who was born out of wedlock in Nigeria, and no evidence has been
submitted of any act or conduct on the part of the petitioner constituting
acknowledgment, he has failed to establish that the beneficiary is his legitimate or legitimated child. Therefore, the visa petition to accord beneficiary

preference status as his daughter under section 203(a)(2) of the Immigration
and Nationality Act, as amended, is denied.
ON BEHALF OF SERVICE:
R. A. Vielhaber
Appellate Trial Attorney

ON BEHALF OF PETITIONER:
David S. Billet, Esquire
225 Broadway
New York, New York 10007

The lawful permanent resident petitioner applied for preference
status for the beneficiary as his daughter under section 203(aX2) of

the Immigration and Nationality Act. In a decision dated January
6, 1972, the District Director denied the petition on the ground
that the beneficiary was not the petitioner's legitimate or legitimated child. The petitioner has appealed from that decision. The
appeal will be dismissed.
In order to qualify hs a "daughter" for preference purposes, a
beneficiary must once have qualified as a "child" of the petitioner
under section 101(b)(1) of the Act. Matter of Pagnerre, 13 L & N.
Dec. 688 (BIA 1971). The applicable portions of section 101(b) define
a "child" as a legitimate child, or a child legitimated under the law

of the child's residence or domicile, or under the law of the father's
521

Interim Decision #2255
residence or domicile, if such legitimation takes place before the
child reaches the age of 18 years and the child is in the legal
custody of the legitimating parent or parents at the time of such
legitimation. The burden of proof to establish the required relationship rests upon the petitioner. Matter of Brantigan, 11 I. & N.
Dec. 493 (B IA 1966).
On appeal, the petitioner's counsel alleges that under the native
customary law of Nigeria all children are considered legitimate at
birth, regardless of the marital status of the parents. We have
consulted a memorandum of Nigerian law from the Near Eastern
and African Law Division of the Library of Congress. That
memorandum indicates that, contrary to counsel's position, a child
born out of wedlock in Nigeria is illegitimate. He or she may
become legitimated under customary law through the subsequent

marriage of the child's parents or by the father's acknowledgement. Acknowledgement involves conduct or an act by the father
which definitely indicates that the child is his own. The petitioner
has admitted that he never married the beneficiary's mother, and
no evidence of any act or conduct constituting acknowledgement
on the part of the petitioner has been submitted.
Counsel has offered a letter from a solicitor in Nigeria and a
letter from the Nigerian consul in New York in support of his
interpretation of Nigerian law. Neither of these documents stands
for the position taken by counsel. The solicitor's letter states;
"Once a father acknowledges and recognises a child as his own then
under Native Law and Custom the child is entitled to succeed him
or inherit his property for all purposes" (emphasis added). It
appears from this letter that some act of acknowledgement is
required, but as we noted above, no evidence of any such act has
been submitted. The letter from the Nigerian consul states that,
"marriages contracted in Nigeria between two Nigerians according to Nigerian Native Law and Custom are valid and recognized
under the Laws of Nigeria." This statement is not relevant to the
present case, because the petitioner has admitted that he never
married the beneficiary's mother.
We conclude that the petitioner has failed to establish that the
beneficiary is his legitimate or legitimated child. Therefore, the
petitioner has not shown that the beneficiary is eligible for
preference status as his daughter under the Act. The decision of
the District Director was correct. The appeal will be dismissed.
ORDER: The appeal is dismissed.

522


IVIATI ER OF C

In DEPORTATION Proceedings
A-12143440

Decided by Board January 2, 1962
Deportability—Sections 241(a)(4) and 241(b) of 1952 Act—Effect of U.S. citizenship at time of conviction—Retroactive effect of denaturalization—Single
scheme issue—Inference that crimes are unrelated when committed a year
spark

Respondent entered the United States as an alien in 1895, was naturalized as a United States citizen in 1925, reentered the United States in 1948,
was convicted in 1954 of two counts of federal Income tax evasion, and was
denaturalized in 1959. Held: respondent is deportable under section 241
(a) (4) of the Act as an alien who after entry (in 1895) has been convicted
of two crimes involving moral turpitude not arising out of a single scheme
of criminal misconduct.
(2) No defense to deportability Iles In contention that respondent was a
United States citizen rather than an alien on the date of his conviction in
1954. Section 241(a) (4) of the Act does not require that the offender
must have had the status of an alien at the time of his conviction.
(3) No bar to deportability found in the fact that because respondent was
convicted while he was a citizen he may have been deprived of access to
the provisions of section 241(b) of the Act permitting a court to make a
recommendation against deportation within 30 days after passing sentence.
(1)

(4) In view of the retroactive effect of a. denaturalization decree under section 340(a) of the Act, the "relation-back" doctrine may properly be in-

voiced so that for the purposes of section 241(a) (4) respondent can be
considered as having been an alien at the time of his conviction.
(5) Where respondent was convicted in a single trial for filing a fraudulent
tax return on January 14, 1949 for the calendar year 1948, and on another
count for filing a fraudulent tax return on March 10, 1950 for the calendar
year 1949, and where he refused to testify at the deportation hearing and did
inference
that crimes are not related when committed a year apart has not been controverted, and the government has met its burden of proving that the two
offenses did not arise out of a single scheme of criminal misconduct.
nut viler orobaLive evidence bearing on We issue, Lela Lhe uoimai

CHARGES:
Order: Act of 1952—Section 211(a) (4) [8 U.S.C. 1251(a) (4)1—Convicted
of two crimes after entry (tax evasion 1954; tax evasion 1954;
contempt of Congress 1952).
Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4))—Convicted
of crime committed within five years of 1948 entry (tax evasion

524

committed 1949: tax evasion committed 1950; cornea,
0.. cooof
gres.s committed 1951).
Act of 1952—Section 241 (a ) (4 ) IS U.S.C. 1251 ( a ) (4) ]—Convicted
of two crimes after entry (tax evasion 1954; tax evasion 1954;
contempt of Congress 1952; contempt of court 1957).
BEFORE THE BOARD

DISCUSSION: This is an appeal from the order of the special
inquiry officer requiring the respondent's deportation on the first
charge set forth above on the basis of the convictions in 1954 for
tax evasion. The appeal will be dismissed.
The respondent, a 70-year-old married male, a native of Italy,
concedes that he is an alien. These events are relevant. The respondent entered an an alien in 1895. He was naturalized in 1925.
He returned from Mexico to the United States in 1948. He has the
following convictions: contempt of Congress in 1952, tax evasion
in 1954 (two counts), and contempt of court in 1957. His naturalization was revolted in 1959.
Deportation on the first charge is sought under that portion of
section 241 (a) (4) of the Immigration and Nationality Act (8 U.S.C.
1251(a)(4)) which provides:
(a) Any alien in the United States (including an alien crewman) shall,
upon the order of the Attorney General, be deported who—
( 4 ) * * * at any time after entry is convicted of two crimes involving
moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless or
whether the convictions were in a single trial.

Deportation was ordered on the basis of the tax convictions. The
issues are whether these convictions, to constitute grounds for deportation, had to occur while the respondent was an alien, whether
the convictions were for crimes involving moral turpitude, and
whether they arose out of a single scheme.
The Tax Convictions and Alienage

This discussion is concerned with one who is an alien but who in
the past was a citizen and while a citizen was convicted of crime.
We believe that the precedents hold that if the condition which
is basis for deportation (0.g., conviction of crimes) is one which
could occur to either an alien or a citizen, then the nationality status
of the individual at the time the condition arose is immaterial.
We believe that the basis for deportation here is a condition which
could have occurred to either an alien or a citizen. We conclude
that the nationality status of the respondent at that time was immaterial. The precedents fall into two categories. In the first are
the cases decided on the basis of the fact, that the ground of deportation is related to the making of an entry and that by definition
525

only an alien can make an entry ; therefore, a person who was not
an alien at the time he came to the United States, had not made
an entry and there was no need to consider whether he had to be
an alien later when the deportable ground arose. If, however, the
individual was an alien at the time of entry or if alienage at the
time of entry is not a factor because the ground of deportation is
not related to an entry, the issue as to the necessity of the coexistence•
of alienage and the occurrence of the ground of deportation requires
decision, but no defined term dictates the answer.'
In the situation before us, alienage at the time of entry in 1895
is conceded.2 The situation before us is one concerned not with
alienage and entry but with the coexistence of alienage and the
emergence of the ground of deportation. Before we consider this
group of cases we shall consider the group which concerned entry
since counsel relies upon such cases. The cases concerned with
alienage at the time of entry are Barber v. Gonzaleg, 317 U.S. 637
(1954), and United States ex rel. Brancato v. Lehanann, 239 F.2d 663
(C.A. 6, 1956). Gonzales, a native of the Philippines, was a national of the United States from the time of his birth until 1946
when he became an alien. He resided in the United States continuously from the time of his admission in 1930. Convicted of crimes
in 1941 and in 1950, he was ordered deported in 1951 under that
portion of section 19(a) of the Immigration Act of 1917 (39 Stat.
889, as amended, formerly 8 U.S.C. 155(a)) which called for the deportation of an alien "who is hereafter [May 1, 1917] sentenced more
than once * * * because of conviction in this country of any crime
involving moral turpitude, committed at any time after entry."
An entry can be made only by an alien who has voluntarily come
from a foreign port. Gonzales contended that he had made no
entry for he had come neither as an alien nor from a foreign port; he
had come as a national from an insular possession to the mainland.
The Service contended that he should be considered as if he had been
an alien coming from a foreign port, because from 1934 to 1946 the
law provided that for the purpose of the immigration laws Filipinos
were "considered as if they were aliens." The Court ruled that
Gonzales was not deportable. The Court held that until 1934 the
Philippines could not be regarded as foreign; that Gonzales had not
arrived from foreign; and that there was, therefore, no entry. The
' In addition to grounds of deportation whore slIPusiz.P is reauired because
an entry is involved is the ground which by its nature can be met only by
one who is an alien (e.g., failure to register as an alien, failure to maintain
status as nonimmigrant (sections 241(a) (5) and (9) of the Act, 8 U.S.C.
1251) ), but we are not ennee.rned with such a ground.
It is proper to use the first entry (Banes v. Boyd, 236 17 .2(1 934 (C.A. 9,
1956); United States ex rel. Belfrale v. Kenton, 131 F. Supp. 570, affd. 224
F.20 803 (C.A. 2, 1055)).

526

Court would not consider Gonzales as if he had made an entry as an:
alien. This disposition of the case made it unnecessary for the Court
to rule on the contention that Gonzales had not been an alien in 1941
at the time of conviction.
Brancato concerned a native of Italy who had entered the United
States as an alien in 1914. Naturalized in 1929, he had returned
from a foreign visit in 1930 and had been convicted of a crime in
1032. He was denaturalized in 1939. Deportation was ordered under
that portion of section 19(a) of the Immigration Act of February
1917, as amended (39 Stat. 889, as amended, formerly 8 U.S.C.
155(a)), which required the deportation of an alien "who is hereafter [May 1, 1917] sentenced to imprisonment for a term of one
year or more because of conviction in this country of a crime involv-ing moral turpitude, committed within five years after the entry of
the alien to the United States." The district court found that Brancato had been properly ordered deported. The district court held
that the denaturalization was retroactive making Brancato an alien
at the, time of conviction. As an additional authority, the court cited
United States ex rel. Eichenlaub & Willumeit v. Shaughnessy, 338,
U.S. 521 (1950) (discussed in detail later). Upon appeal, the circuit
court (one judge dissenting) reversed the district court on the'
ground that the law required an entry and since an entry could be
made only by an alien, the law did not apply to Brancato who had'
entered as a citizen. Despite the denaturalization, the circuit court.
refused to indulge, in the fiction that Brancato had been an alien
at the time of entry. It went on to state that Eichenlaub was not
applicable to the "general deportation statute" (Immigration Act
of February 5, 1917) which the court was considering.
Passing from the cases which turn on the connection between
"entry" and alienage, we come to those concerned with whether alienage must have existed when the deportation ground arose. United.
.

States ex rel. Eichenlaub & Wi.11zimea.t v. Shaughnessy, 338 U.S', 521

(1950) (4-to-3 decision), concerned two aliens found to be undesirable residents of the United States whose deportation had been ordered

under the Act of May 10, 1920, which in pertinent part provided:
That aliens of the following classes, in addition to those for whose expulsion
from the United States provision is made in the existing law, shall [if found
undesirable residents] * * * be * * * deported in the manner provided in.
serum-is 19 and 20 of the Act of February 5. 1917 * * *:
Ail aliens who since August 1, 1914, have been or may hereafter be convictml of any violation or conspiracy to violate * * [The Espiouage Act of
June 15, 1917, as amended].

Eichenlaub, a native of Germany, became a citizen of the United
States in 1936. In 1941, he was convicted for violation of the
Espionage Act of 1917. In 1944, his citizenship was cancelled on
the ground of fraud in its procurement. Willumeit was naturalized
527

in 1931. In 1942, he was convicted of conspiracy to violate the
Espionage Act of 1917. In 1944, his naturalization was cancelled on
the ground of fraud in its procurement.
The Court found the substantial issue was whether the law required the individuals involved to have been aliens at the time they
were convicted. Refusing to decide whether a retroactive effect
should be given to the denaturalization orders, the Court states:
• • • A simpler and equally complete solution lies in the view that the
Act does not require that the offenders reached by it must have had the
status of aliens at the time they were convicted. As the Act does not state
that necessity, it is applicable to all such offenders, including those denaturalized before or after their convictions as well as those who never have
been naturalized. The convictions of the relators for designated offenses are
important conditions precedent to their being found to be undesirable residents.
Their status as aliens is a necessary further condition of their deportability.
When both conditions are met and, after hearing, the Attorney General finds
them to be undesirable residents; of the United States, the Act is satisfied.
■
•
s
•
-The recognized purpose of the Act was deportation. It is difficult to imagine
.,a reason which would have made it natural or appropriate for Congress to
authorize the Attorney General to pass upon the undesirability and deportability of an alien, never naturalized, who had been convicted of espionage,
but would prohibit the Attorney General from passing upon the undesirability
and deportability of aliens, such as the relators in the instant cases, who had
procured certificates of naturalization before their convictions of espionage,
but later had been deprived of those certificates on the ground of fraud in
their procurement. If there were to be a distinction made in favor of any
aliens because they were at one time naturalized citizens, the logical time at
which that status would be important would be the time of the commission
of the crimes, rather than the purely fortuitous time of their conviction of
those crimes. Not even such a distinction finds support in the statute.

The Court pointed out the failure of Congress to make a distinction between aliens who had never been naturalized and thoso who
had lost United States citizenship was not the result of unfamiliarity
with such matters.
The dissenting opinion stated that the statute permitting the deportation of an alien should be read to apply only to the person
who had been an alien when convicted. It pointed out that since
the statute permitted either of the two constructions without violence to language, the construction which led to hardship should be
rejected. Its review of the Congressional history failed to reveal
that Congress had denaturalized citizens in mind when the law was
passed.

Mangaoang v. Boyd, 205 F.2d 553 (C.A. 9, 1953), cert. den. 346
U.S. 876, concerned a native of the Philippines who resided continuously in the United States from the time of his admission in 1926.
He was a national of the United States from birth until 1946 when
he became an alien. He had been a member of the Communist Party
from 1938 to 1939. The membership was the baths for an order of

528

deportation under the Act of October 16, 1918, as amended by the
Internal Security Act of 1950 (64 Stat. 1006, c. 1024, Title I, section 22) providing in pertinent part for the deportation of—
"Any alien who was at the time of entering the United States, or has been
at any time thereafter," a member of the following class'
the Communist Party of the United
Aliens who are members of * *
States (S U.S.C. 137, 137-3(a), Supp. v, 1946 ed.).

Mangaoang, who had been a national of the United States in
1938 and 1939 when he belonged to the Party, contended that the
law called for the deportation only of one who was an alien and
a member of the Party simultaneously. The district court ruled
that membership and alienage did not have to be coexistent. Eich,enlaub was relied upon. The circuit court, reversing, ruled that the
words "aliens who are inemberS" (emphasis in original) indicated

that Congress referred to persons who were at the same time both
aliens and members of the Party. The court distinguished Eichenlax") on the ground that language there calling for the deportation
of certain aliens convicted "since August 1, 1914" limited deportation
only in that the conviction had to be after the date given; there
was no requirement that alienage must have existed at the time of
conviction.
The Government had also contended that if the law called for
alienage and membership to exist simultaneously, Mangaoang was
deportable, nevertheless, because he lied to he considered as if he

were an alien since the Philippine Independence Act of 1934 provided that for the purpose of all immigration laws, Philippine nationals "shall be considered as if they were aliens." The circuit
court held that there was doubt as to whether Filipinos were to be
considered as aliens under all immigration laws or only under
immigration laws which existed up to the time the provisions went
into effect but that if the directive applied to legislation which
became effective subsequently, there was nothing in the law under
which Mangaoang's deportation was sought which authorized the
deportation of nationals who were to be considered aliens. Moreover, if a construction was possible which required deportation of
nationals who were to be considered aliens, it would raise an ambiguity which must be resolved in favor of the alien. In deciding
this issue, the court also placed reliance upon the fact that the
directive had become obsolete in 1946 and no longer had any effective reference to any one. Finally, as a further reason why Mangaoang was not deportable, the court pointed out that deportation
was authorized only of an alien who had made an entry into the
United States and that when Mangaoang came to the United States
in 1926, he had not made an entry.
529
654377-65-35

Resurrection-Talavera v. Barber, 231 F.2d 524 (C.A. 9, 1956),
involved a person born in the Philippines. He was a national of
the United States from birth to 1946 when he became an alien.
He entered the -United States in 1934. In 1942, he was convicted of
crime. In 1952, he made several visits to Mexico. He was ordered
deported under section 19 of the Immigration Act of 1917 for having
been convicted of crime prior to his entry. The pertinent law
provided that "any alien who was convicted * * * prior to entry, of a
felony or other crime or misdemeanor involving moral turpitude;
shall * * * be '* * * deported." Talavera argued that this law did
not apply to him because he had been a national at the time of conviction. The court sustained the order of •deportation. The court
stated: "that Talavera was a national of the United States and not
an alien at the time of his conviction of the crime involving moral
turpitude is irrelevant. * * * The statute under which Talavera was
ordered deported does not include a requirement that the deportee

be an alien at the time of his conviction" (p. 525).
Counsel is of the belief that the result in Mangaoang was different from that in Eichenlaub or Talavera because Mangaoang used
the present tense in calling for deportation, while in the other cases
(counsel alleges) deportation was called for in the past tense. It
follows, therefore, counsel contends, that since in the instant case
deportation is called for in the present tense, the result should be

that found in Mangaoang, i.e., a coexistence of alienage and the
coming into being of the ground of deportation.
We do not believe that counsel's contention can be sustained. In
the first place, the language in Eichenlaub is not confined to the
past tense; it calls for the deportation of aliens who "have been or
may hereafter be convicted." Moreover, there is nothing in Talavera
or Eichenlaub to indicate that the tense affected the courts' decision.
The courts found alienage was not a necessity simply because the
language did not call for alienage at the time of conviction—either
an alien or a citizen could come within the language used. In
Mangaoang, on the other hand, only an alien could comply with
the language the court found controlling. That tense alone is not
sufficient where the language does not eliminate all but aliens may
be seen from the fact that Congress used the past tense in requiring the deportation of individuals for acts which could have been
committed only at a time when they were a,lien8, for example, entry
without inspection (section 241(a) (2), 8 U.S.U. 1251) or failure to
register as an alien (the first ground set forth in section 241( (a) (5)
of the Act, 8 U.S.C. 1251). Surely something stronger than tense
of a verb, would have been used by Congress had there been the intent to exempt the convicted person who had been a naturalized
citizen when the ground of deportability arose, but later became an
alien.
530

That Congress would have resorted to definite language requiring
coexistence of alienage and the creation of a ground of deportation
is strengthened by an examination of the history of the law. In
1950, the Supreme Court, considering Eichenlaub, found that Congress, in enacting legislation to deport aliens, could not have been
unaware of the fact that in the United States there were and
would be aliens who became aliens because of the cancellation of
their naturalization. The Supreme Court concluded that if Congress had desired to exempt a denaturalized citizen from the application of the immigration laws because he had been a citizen when
the ground of deportation arose, provision to this effect would have
been made. This consideration is pertinent today. The Immigration and Nationality Act of 1952 was enacted with considerable
thought having been given to the cancellation of naturalization
(Conunentary on the Immigration and Nationality Act, pp. 86

- 87,

Title 8, Aliens and Nationality (1953); S. Rept. No. 1515, 81st
Cong., 2d Sess., pp. 754-769 (1950) ). The Act was the result of
the study of "each of the thousands of provisions of our immigra-

and naturalization laws with the end in view of appraising their
adequacy, force and effect and in conjunction therewith the judicial
and administrative interpretations of the provisions of the law and
the rules and regulations implementing them" (S. Rept. No. 1137,
82d Cong., 2d Sess., p. 2 (1952) ). The Senate version of what became the Immigration and Nationality Act contains a proposal
based on the law involved in Eichentaub (S. Rept. 1137, 82d Cong.,
2d Sess., pp. 21-22) and the very law was incorporated in section
241(a) (17) of the Act (8 U.S.C. 1251). We cannot find that
Congress was not aware of the existence of L'ichenlaub or the problem of the denaturalized person when it enacted section 241(a) (4) of
the Act. Furthermore, in connection with its study of the immigration laws, Congress had before it (S. Rept. No. 1137, 82d Cong.,
2d Sass., p. 22) the following recommendation of the Special Committee to Investigate Organized Crime in Interstate Commerce:

tion

The immigration laws should be amended to facilitate deportation of criminal and other u sirable aliens. To this end, the committee recommends
the adoption of th .igislative proposal heretofore recommended by the Commissioner of Immigration and contained in section 241 of S. 716 (82d Cong.).
now pending before the Senate Judiciary Committee. 3
Some of the criminals who occupy key positions in criminal gangs and syndicates are alien-born. Some came into this country illegally. Some have
See tectimory of. the Commissioner before the Committee

on March O.

1951 (S. Rept. No. 307, 82d Cong., 1st Sees., p. 579) discussing grounds of
deportation similar to those found in section 241 (a) of the Act and the additional proposal for the deportation of aliens who at any time after entry
were convicted of crime and declared to he undesirable by the Attorney General.

531

never been naturalized. Others obtained naturalizati n certificates by concealing their criminal activities. (S. Rept. No, 307, 82d Cong., 1st Sess.,
p. 15)

It appears to us that this is some indication that Congress desired
that a naturalized person whose naturalization was revoked should
be made the subject of deportation proceedings, and that the deportation of alien criminal elements be facilitated whether or not
they had been naturalized.
Counsel, relying upon the characterization of Eichenlaub in Brancato, contends that Eichenlaub is not applicable. In Brancato the
court said that Eichenlaub did not apply to the "general deportation
statute." This statement is dicta for the case had already been decided on the theory that an entry was required and Brancato had
made no entry since he had entered as a United States citizen.
With due deference to the dicta of the circuit court, we would point
out that the majority opinion in Eichenlaub made no attempt to
distinguish the Act of 1920 involved from the general deportation
statute and that Mr. Justice Frankfurter (joined in his dissenting
opinion by two other Justices) was of the belief that "The court's
decision has serious implications with respect to citizens denaturalized for reasons not involving moral blame, and who have, while
citizens, committed one of a variety of acts not involving moral
obliquity and certainly not endangering the security of the country

but which nevertheless are covered by other statutory provisions in
language similar to that before us." He gave as an example a
provision of the general deportation statute which provided for the
deportation of an alien convicted for violation of a narcotic law.
Moreover, Eichenlaub has generally in both administrative and judicial opinions been considered as applying to the general deportation
law (e.g., Marks v. Esperdy, 198 F. Supp. 40 (S.D. N.Y., 1961),
and Matters of P—, 4 373).
Furthermore, it is most telling that Congress which presumably
knew of Eichenlaub placed the ground of deportation involved there
in the general deportation statute in 1952 when it was made a part
of section 241(a) (17) of the Act (8 U.S.C. 1251) and provision
also was made for the deportation of aliens who violate current
provisions of the 1920 Act found in 18 U.S.C. 791 794, 2388, and
3241. For what it may be worth, we must point out that Mangaoang,
upon which counsel places much reliance, also did not concern the
-

general deportation law (Immigration Act of February 5, 1917); it

involved a special, law relating to the exclusion and expulsion of
subversives (Act of October 16, 1918, 40 Stat. 1012, as finally
amended by the Act of September 23, 1950 (64 Stat. 987). Lastly,
it must be stated that Talavera involved the general immigration
statute.
532

Counsel contends that it is improper to apply section 241(a) (4)
of the Act to one who was convicted while he was a citizen because
such application makes ineffective the provisions of section 241(b)
of the Act which permit a court to make a recommendation against
deportation within 30 days of passing sentence. Counsel relies
upon Gubbels v. Boy, 261 F.2d 952 (C.C.A. 9, 1958). Gubbels involved the question as to whether a conviction of a military court
could be a basis for deportability. The court held that since a military court. could not make a recommendation against deportation,
Congress had not intended to make its sentence the basis for deportation. The issue was the nature of the tribunal whose judgment
Congress intended to be the basis for deportation. Such is not the
issue here, where, as the special inquiry officer has pointed out, it
was not the nature of the tribunal but the respondent's misconduct
in obtaining naturalization improperly which prevented him from
obtaining a recommendation against deportation. (Actually, the
question of making a recommendation could have been raised by the
respondent who had been fighting efforts of the Government to
denaturalize him since at least October 1952 (Exh. 5, p. 2).) •
Moreover, the fact that an alien has not had an opportunity to
petition the court for a recommendation against deportation does
not prevent his deportation for conviction of crime under a law
which does provide for such recommendation. The right of the
nation to expel aliens is absolute and unqualified (United States ex
rel. Circella v. Neelly, 115 F. Supp. 615, 626 (N.D. Ill., 1953), aff'd
sub Rom United States ex rel. Circella v. Sahli, 216 F.2d 33 (C.A.
7, 1954), cert. den. 348 U.S. 964; and Matter of L—, 8- 389, 390).
See, United States ex rel. Klo-nis v. Davis, 13 F.2d 630 (C.A. 2, 1926) ;
Todaro v. Munster, 62 F.2d 963 (C.A. 10, 1933) ; and Matter of
17—M--, 8 94. Moreover, the provisions calling for the deportation
of convicted aliens and the malting of recommendations against depor-

have been in effect since 1917. Filipinos convicted between
1917 and at least 1934 were nationals of the United States to whom
the immigration laws did not apply. Yet, in 1934 Congress had no
hesitancy in providing for the application of the immigration laws,
including the 1917 Act, to Filipinos for acts which had occurred (and
until 1946 would occur) while they were nationals (see Mesirut v.
Rosenberg, 278 F.2c1 291, 296-297 (C.A. 9, 1060) ). Finally, there
is still available to the respondent the benefits of that portion of section
241(h) which prevents deportation of one who has obtained a pardon.
Several administrative decisions are pertinent to the issue as to
the necessity of the coexistence of alienago and the conviction.
Natter of L—, 6-666 (1955), concerned an individual who had
entered the United States as an alien in 1920. He became a United
tation

533

States citizen in 1931. He was convicted of four crimes in 1940.
in 1950, he lost United States citizenship under section 401(g)
of the Nationality Act of 1940 which provided for the expatriation
of a dishonorably discharged citizen who in time of war had been
convicted by court martial of desertion. Deportation proceedings
were brought under section 241(a) (4) of the Act charging L—
with having committed two crimes after entry. The Board sustained the order of deportation. Subsequently, the Supreme Court
ruled that section 401(g) of the Nationality Act of 1940 was unconstitutional (Trop v. Dulles, 356 U.S. 86) and because of this,
on September 11, 1958, the Board withdrew its order of 1955 and
terminated proceedings. Counsel in a supplemental brief presents
the belief that the Board's order in 1955 was in error. He is of
the belief the issue was given little consideration ; that expatriation
presents a different situation from a cancellation of naturalization;
and that Mangaoang was distinguished administratively merely on
the grounds relating to entry, ignoring the additional ground concerning the coexistence of alienage and the ground of deportability.
We do not believe our decision was in error. The issue was appropriately considered and decided on the basis of precedents, including
Eieh.enlaub.
Matter of 8—, 5-678 (1954), concerned a person who while a citi-

zen of the United States had been convicted of theft on three occasions.
Subsequently, he lost his United States citizenship by taking an oath of
allegiance to a foreign government. When he attempted to returh to
the United States, he was excluded under the Immigration and Nationality Act as one who had been convicted of crime involving moral
turpitude prior to entry. The alien contended that at the time the
offenses were committed he was not an alien but a citizen and was not

excludable because he had never been convicted of a crime as an alien.
The Board held that the contention was without merit because the Act
required the exclusion of persons who were aliens without excepting
those 'who had been citizens and suffered expatriation. Eielzenlaub
was relied upon and Mangaoang was distinguished by reference to its
third numbered paragraph. This paragraph points out that. Mangaoang differs from Eichenlawb because in Eichenlaub the language "did
not require a showing that at the time of conviction. * * * the person in
question had then been an alien" while in Mangaoang the language
did require the person to be an alien. Counsel contends that 5
was found excludable "because of the past-tense language of the
statute involved" and that Mangaoang "was distinguished as being

—

based on a present - tense statute similar to section 241(a) (4)." We

find no mention of tense as a reason for ordering S—'s deportation.
The convictions in Matter of 8— could have happened to either an.
534

alien or a nonalien, and the law did not limit deportability to those

who had been convicted only as aliens. This was the basis of the
decision. The same basis for decision was used in Matter of M ,
A-11875663, 9-452 (1961), which involved a native-born citizen
of the United States who had been convicted of a crime in 1951.
Be. expatriated himself in 1959 by service in the armed forces of a
foreign state. He last entered in 1960. His deportation was ordered
under the Act as one who had been excludable in 1960 as an alien
convicted of crime prior to entry.
Matter of P , 4 373 (1951), and Matter of TV , 5 759, 764
(1954), involved persons who entered as United States citizens and
were ordered deported for having been convicted of crime, or having
admitted commission of crime prior to last entry. Counsel is of the
belief that deportation was ordered because the past tense was used in
the laws. In these cases, decided before Brancato, the Board's decision was not based upon the tense of the statute involved but upon the
fact that denaturalization stripped the individual of United States
—

citizenship retroactively. There io no baois for concluding that the

Board would have acted differently had the statutory language been
written in proesenti.
Counsel contends that to find it possible to interpret section
241(a) (4) to make the coexistence of alienage and conviction unnecessary would make the statute ambiguous so that a construction
favorable to the respondent should be taken. The rule of the
cases, however, is clear. When the law requires deportation for
acts which can be performed or happen to either an alien or a
citizen, nationality status at the time of the performance or happening is immaterial unless the law provides that alienage must
be present. There is thus no ambiguity. Applying the rule to the
language of section 241(a) (4), we find that the act condemnedconviction—can occur to either a citizen or an alien and the law_
does not provide that -the subject be an alien. Therefore, alienage
at the time of conviction was not a necessity ' and the charge is
sustained if moral turpitude is involved and the crimes did not
arise out of -a single scheme of criminal misconduct.
Single Scheme
Couithei contends that the Service has failed to prove that the

two convictions on which the order of deportation is based did not
arise "out of a single scheme of criminal misconduct." The respondent had been indicted for filing false and fraudulent income tax
4 So that all major aspects of the case may he properly developed for. judicial review, if it should take place, we shall subsequently discuss the issue
as to whether the respondent must not be considered to have been an alien
at the time of conviction.

535

returns for 1946, 1947, 1948 and 1949. The jury convicted the
respondent for the years 1947, 1948 and 1949. He was sentenced
to 5 years on each count, to run concurrently, and a fine was imposed. On appeal, the conviction as to 1947 was reversed.
At the deportation hearing, the respondent refused to testify.
The Service presented the record of the convictions, she:wing in one
count a violation of the law by the filing of a fraudulent return on
January 14, 1949, for the calendar year 1948, and in the other count,
a fraudulent filing of a tax return on March 10, 1950, for the year
1949. The Service then rested. In his defense, the respondent presented the summation of the prosecuting attorney at the tax evasion
trial as evidence that the convictions arose out of a single scheme
(Exh. 15). The summation reveals that the Government's case is
built upon the net worth theory. Proof was made of the respondent's assets in 1946, the amount of income he reported for the years
1046 to 1040, the fact that ho had spent twice the money he had

reported as income for those years, and the fact that there was a
source from which the additional income could have come to the
respondent. The sums spent over and above that which could be
attributed to the assets started with and income reported were
alleged to be income concealed. The brief of the respondent sets
forth several instances where the prosecuting attorney, in his summation, made the point that the revviideul, had so cor:ducted himself over a period of years that he had spent twice as much as he
had reported, defrauding the Government of taxes due. Great
emphasis is put on this statement of the prosecuting attorney. "If
the F—C—s can get away with this scheme to defeat and defraud
the-Government out of income taxes, then the honest taxpayers of
this country * * * will carry the load * * (p. 1834, Exh. 4). The
respondent also submitted a subpoena for F—, an attorney, who had
represented the respondent at the trial on income tax evasion. It
was alleged that although not a participant, the witness allegedly
had knowelge of the facts which would show a single scheme.
Counsel explained that the request to subpoena F— came after the
death of D—, another of the respondent's attorneys at the tax evasion trial and one who had agreed to testify. The request was
denied. Counsel then requested (and received) permission to submit affidavits from F— and another person. However, affidavits
were not submitted. The Government presented the summation of
the defense counsel at the tax evasion trial (E.&11. 17), an affidavit
of C—'s in support of a motion for inspection of minutes of the
grand jury (Exh. 18), and testimony of S , a defense witness at
the tax evasion trial (Exh. 19).

.The special inquiry officer ruled that the burden of proving that
the convictions had not arisen from a single scheme was upon the
536

Government and that in the absence of probative evidence to the
the contrary, a record of conviction failing to show acts in furtherance of a common plan would suffice to establish a single scheme
did not exist. The special inquiry officer, relying heavily on Chanan
Din Khan T. Barber, 147 F. Supp. 771 (N.D. Calif.), aff'd 253 F.2d
547 (C.A. 9, 1958), cert. den. 357 U.S. 920, where the facts are similar to those in the instant case, found that a single scheme had not
existed.
Counsel contends the Service cannot bear its burden of establishing that the respondent's crimes did not arise out of a single scheme
by merely introducing a conviction in the situation before us because
there is nothing in the two successive tax evasions which negates
singleness of scheme. Counsel contends the Service is under the
obligation of making further proof that a single scheme was not
involved. Counsel contends that Chanan, Din Khan v. Barber,
supra, is wrong because it was decided in the belief that the burden
of proof as to the single scheme issue was on the alien rather than
on the Service, and because the term "single scheme" was equated
with a single punishable crime. Counsel contends that these tests
were rejected in Wood v. Hoy, 266 F.2d 825 (C.A. 9, 1959).
Chanan Din Khan was reviewed in Wood T. Hoy, supra, and
quoted from, without criticism. It is, therefore, guiding authority
for a situation such as was involved there. Chanan Din Khara, on
facts very similar to those before us, held that an indictment showing convictions on two fraudulent returns filed a year apart is persuasive evidence that two unrelated crimes were involved. In the
instant case, there is no probative evidence controverting the inference which flows from the commission of crimes a year apart. Certainly, the ,remarks of the prosecuting attorney at the tax evasion
trial do not controvert the inference which flows from the convictions. The prosecuting attorney was concerned with the concealment
of income from the Government to avoid payment of taxes. He did
not have to prove that when the respondent took the first step to
defraud the Government that he intended to continue to do so for
the next three years. The word "scheme" could have been applied
to actions and plans which had as their end the filing of a fraudulent tax return if only one year had been involved. It was unnecessary fnr the prosecuting attorney to establish that there was a
scheme to commit both violations in order to obtain a conviction.
Moreover, even if this ambiguous opinion by the prosecuting attorney, made in the heat of advocacy, referred to a conspiracy for the
four years, it would not be controlling as to the actual state of
mind of the respondent. In fact, if the opinion of the prosecuting
attorney were meant to express the belief that when the respondent
filed his return for 1948 he conspired to defraud the Government

537

in the next three years, it was an opinion not shared by the jury
which acquitted the respondent on the charge involving the year
1946.
Counsel sites Matter of F—G— & C D , 8 147, in support of
his contention that the convictions in the instant case arose out of a
single scheme. In the administrative decision cited, the first alien had
been convicted on two counts of making a false statement for the purpose of obtaining unemployment insurance benefits. In count one he
was charged with making the first false statement and in count two
with making the second false statement a week later. The Board
decided that it was proper to conclude that when the alien falsely
represented he was unemployed to obtain benefits, he intended to do it
again on the following week, although the inference might be too
broad if attempt were made to extend it to the entire 26 weeks of benefits. In the instant case, it would be even less proper to infer that the
intention to falsify the return filed in March 1950 was formed in
January 1V4t when the prior fraudulent return was filed (Chanan
Din Khan, v. Barber, oupra).

Counsel contends that the net worth theory by its very nature
prevents a showing that two crimes did not arise out of a single
scheme. This contention is based on the belief that under the net
worth theory convictions for two successive years are possible upon
proof of facts which show no more than that the indicted person
received a sum of money in one year and spent it in two successive
years without reporting what was spent as income in either year.
In other words, the possibility is raised that in January 1949, the
respondent evaded the payment of taxes then due on income which
he had received in 1948 and that, although in March 1950 he filed
a return showing some income in 1949, it could have been from the
same income concealed in 194g that the money came which was spent
in 1949 in excess of that reported. It is answer enough that there
is no proof that the convictions for 1948 and 1949 were the result
of a conspiracy to evade payment of taxes for income which had
been received only in 1948. On the contrary, the record of that trial
reveals there was income for both 1948 and 1949 (Exh. 19, pp.
1679 (a)--1681 ( a) ). Moreover, an examination of the reported tax
conviction case reveals the following pertinent charge to the jury :
This [net worth] method involves determination of the defendant's net
worth at the beginning and end of a period in order to foreclose the possibility that the cxpcnditurca were made, or the net worth increases were
derived, from.prior accumulated funds.
•
•
•
•
•
In order for you to find that sums received by the defendant during any
of the taxable years constituted income to him, It is not necessary for the

Government to have proved the exact source of the income. None of the
alleged excess investments and expenditures made by the C—s during any
538

year shall be considered in determining the taxable lot:owe of the defendant
F—C-- in any year unless you find that there was an excess of expenditures
and investments, and that It constituted money which the defendant received
as taxable income during the year in which the money was spent. (United
States v. Costello, 221 F.2d 668, 070 (C.A. 2), aff'd 350 U.S. 359)

The net worth theory is a method for proving that a crime was
committed during a particular year. Its use does not negate the
possibility that the crimes were the reaulte of independent violations made from year to year rather than at one time in a particular year.
Moral Turpitude
We come now to the question of whether the special inquiry officer
properly found that the respondent's convictions on two counts for
violation of 20 U.S.C. 145(b) involve moral turpitude. The special
inquiry officer, relying upon judicial precedents, found that fraud
was an ingredient and that moral turpitude was present. The issue
was fully discussed by the special inquiry officer. Counsel contends
that United States v. Seharton, 285 U.S. 518 (1932), and United
States v. Carroll°, 30 F. Supp. 3 (W.D. Mo., 1939), require a contrary finding. Similar contention based upon the cases cited by
counsel was made in Chanan Din Khan v. Barber, 147 F. Supp.
771, 775 (N.D. Calif., 1957), which concerned violations of the same
section involved in the instant case. The court found that moral
turpitude was present. The decision of the court was affirmed upon
appeal, 253 F.2d 547, and certiorari was denied, 357 U.S. 920. We
see no need to discuss this issue further.
We find no reversible error in the denial for the issuance of a
subpoena for F—. The issuance of a subpoena is a discretionary
matter. While the respondent was entitled to produce evidence in
such form as he desired, there was no abuse of discretion in denying
the subpoena in the absence of some inure specific statement as to
the testimony which the witness could offer.
The respondent's deportability is established on the first charge
because of convictions for evasion of taxes.

Relation: Back Theory

Our conclusion is that alienage and conviction need not bo coexistent; however, as we previously indicated, we shall consider the
issue as to whether the respondent should be regarded as having
been an alien at the time of the conviction since he has been denatu-

under section 340(a) of the Act (8 U.S.C. 1451). The section provides that revocation "shall be effective as of the original
date of the order and certificate." The special inquiry officer found
the law to be that denaturalization is retroactive and confers upon
ralized

539

the subject the status of an alien at all times and for all purposes,
except that one who entered while naturalized may not be considered
as having entered as an alien, and except that certain language providing for the deportation of an alien who is a member of a proscribed organization requires that there must be a coexistence of
alienage and membership. The special inquiry officer ruled. that
since C— fell in neither of the exceptions, he must be considered
as having been an alien at the time of the conviction. Counsel contends that the "relation-back" theory should not be applied because
judicial precedents require that a denaturalized person be regarded
as if he had been a citizen before the denaturalization even though
he was not lawfully entitled to be naturalized. We believe that the
"relation-back" theory is properly applied here.
Prior to the Immigration and Nationality Act, it was established
that a revocation of naturalization, whether for fraud or for ille(UulGed States ex rel. Brancato v. Lehmann,
gality, vva
supra). While there was general agreement that the denaturalized
person must be considered as an alien from the time of the denaturalization, the rule of the cases appears to have been that the fiction
that alienage existed at any particular moment in the past would
not be indulged in if the individual would be required to do what
was impossible of performance. Thus, the fiction was not indulged
in where it would require an individual who entered as a United
States citizen to have been in possession of the documents required
of an alien (Matter of C—, 3-275 (Atty. Gen., 1950)). In the same
vein, it was improper to consider one who did something as a national
of the United States, as if he had done it while an alien (Barber v.
Gonzales, supra). However, the relation-back doctrine was applied
where it did not require the "impossible" of the alien (Matter of P

—

,

4 373).

Although it is the contention of counsel that it is improper to
apply section 340(a) to a deportation section, we see nothing in
the working or the history of this law (which at the minimum
merely restates what was decided judicially) that would prevent its
application to deportation proceedings. The section can be given
effect in the case before us without violence to precedents if we consider the respondent as an alien at the time he was convicted. The
commission of crime or the conviction was not related to nationality.
To consider the respondent as having been an alien at the time of
the conviction imputes to him no action which he, as a citizen, could
not have done. No impossibility is asked for. We believe it is
proper for the purposes of section 241 (a) (4) of the Act to consider

the respondent as having been an alien at the time of his conviction.
(Cf. Mesina v. Rosenberg, 278 F.2d 291 (C.A. 9, 1960).)
540

Counsel contends that Congress could not have intended the relation-back theory to apply because in section 241(b) provision was
made for a recommendation against deportation, a provision which
would be of use only to an alien. This contention has been previously considered; we pointed out that Congress has the power to
deport an alien who had no access to a recommendation against
deportation. Congress must have realized that the 30-day period
within which such a recommendation could be made would have
passed by the time of the denaturalization. and may have been content to permit the denaturalized person to resort to a pardon.
At oral argument, counsel expressed the belief that the special
inquiry officer had used Eichenlaub as authority to give a retroactive effect to alienage (p. 4 of oral argument). Although the special inquiry officer gave a retroactive effectt to the denaturalization,
he did not use Eiehenlaub as authority for this. (See last sentence
on p. 15 of the special inquiry officer's opinion.) The special inquiry
officer relied upon the statutory declaration in section 340(a) of the
Immigration and Nationality Act (p. 18 of special inquiry officer's
opinion).
The special inquiry officer found the respondent deportable on the
first charge. The first charge is superfluous; it is contained within
the third. The record does not establish the respondent's deportability on the second charge for the reason stated by the special
inquiry officer. The respondent's deportability on the third charge
is sustained, based on the tax evasion convictions; deportability on
the basis of the other convictions has not been established.
The findings of fact and conclusions of law of the special inquiry
officer are adopted except Conclusion of Law No. 3 will be amended
to eliminate the convictions in 1954 for tax evasion as grounds on
which the respondent is not deportable:
(3) That you are not deportable under section 241(a) (4) of
the Immigration and Nationality Act based on conviction
for two crimes after entry (contempt of Congress in 1952;
contempt of court in 1957).
ORDER: It is ordered that the appeal be dismissed.
It is further ordered that the respondent be deported from the
United States in the manner provided by law on the third charge
of deportability based solely on the income tax convictions.

541


Interim Decision #2738

MATTER OF YODYING
In Deportation

Proceedings

A-20543713
Decided by Board October 30, 1979
An application for adjustment of status (1485) is effectively filed on the date it was
submitted simultaneously with a visa petition where the 1-485 was retained for
processing on that date, was not returned to the respondent for any reason, an
immigrant visa was available on that date, and where the accompanying visa petition
was eventually approved. 8 C.F.R. 245.2(a). See Matter of Garcia,161gcN Dec. 653 (Blit
19'78).
CHARGE:

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)J—Nonimmigrant visitor—
remained longer than permitted
ON BEHALF OF RESPONDENT: Bill W. Lew, Esquire
Schonfeld, Lew & Savin
2500 Wilshire Boulevard
Los Angeles, California 90057
BY:

Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent has appealed from the decision of an immigration
judge, dated September 19, 1978, denying her application for adjustment of status. The record will be remanded.
The respondent is a 37-year-old native and citizen of Thailand who
entered the United States on January 19, 1970, as a nonimmigrant
visitor. On December 2, 1974, the respondent was found deportable
under section 241(a)(2) of the. Immigration and Nationality Act, 8

U.S.C. 1251(a)(2), as a nonimmigrant who had remained in the United
States beyond the period of her authorized stay. The respondent was
granted the privilege of voluntary departure on or before March 2,
1975.
On July 14, 1976, a sixth-preference visa petition (Form 1-140) was
filed on the respondent's behalf by the Gilbert Marking Company. The
petition was based upon a labor certification filed on November 29,
1974, and approved on June 2, 1976. On July 14, 1976, the respondent
also filed her application for adjustment of status (Form 1-485). Noted
155

Interim Decision #2738
on that application are the words "insists on filing 1-485 also." The visa
petition was approved on May 25, 1977. •
In his decision, the immigration judge concluded that the respondent was statutorily ineligible for adjustment because she had continued in unauthorized employment after January 1, 1977. See section
245(c) of the Act, 8 U.S.C. 1255(c). In his decision, the immigration
judge held that the respondent's filing of her adjustment application
was ineffective:
The respondent did not meet the eligibility requirements of Section 245 until her visa
petition was approved on May 25, 1977.... If the matter had been brought before me as
a Motion to Reopen [before that date the] regulations would have mandated a denial of
her motion. . .. The 'filing' of the Application for Adjustment of Status in this case
could only have been accomplished before an immigration judge in a proper deportation proceeding.

At the time the respondent filed her adjustment application with her
1-140, 8 C.F.R. 245.2(a) (1976) provided, in part, as follows:
(1) An application for adjustment of status ... by an alien after he has been served
cause ... shall be made and considered only in proceedings
under Part 242 of this chapter. . . .
(2) Before an application for adjustment of status may be considered properly
filed, a visa must be immediately available. If a visa would be immediately available
with an order to show

only upon approval of a vice petition, the application will not be considered properly

filed unless such petition has first been approved. If a visa petition is submitted
simultaneously with, the adjustment application, the adjustment application shall be
retained and processed only if the petition is found to be in order for approval upon
initial review by an immigration officer, is approved, and approval makes a visa
immediately available. If the petition is returned to the petitioner for any reason, or

decision thereon is deferred for investigation, interview, labor certification or consultation with another Government agency, or if the petition is denied, the adjustment
(Emphasis
application shall not be considered as having been properly filed_ .
supplied.)

The immigration judge appears to have relied on the language in 8
C.F.R. 245.2(a)(1), above, to find an "ineffective" filing of the respondent's 1-485. However, this reading effectively precludes an alien in
deportation proceedings from taking advantage of the simultaneous
filing provisions of 8 C.F.R. 245.2(a)(2). We find that the language of
the regulation does not compel such a result.'
' We note that we have interpreted the revised provisions of 8 C.F.R. 245.2(a)(2) to
permit an alien in deportation proceedings to take advantage of the simultaneous filing
provision in Matter of Garcia, 16 LEN Dec. 653 (BIA 1978). We there stated:

It has been suggested that the simultaneous filing provisions of 8 C.F.R. 245.2(a)(2)
were designed to apply only where the visa petition and adjustment application are
submitted to the District Direetor prior to the institution of deportation proceedings
We find that neither the language of the regulation itself nor policy considerations
support an interpretation which would render the regulation nugatory after an Order
to Show Cause has been issued and we decline to adopt such a restrictive

156

Interim Decision #2738
The regulation permits an alien to file a visa petition and an adjustment application simultaneously if certain conditions are met. In the
present case, the respondent's 1-485 was retained for processing by an
immigration officer, an immigrant visa was available on that date (see
Department of State Visa Bulletin, Vol. II, No. 102, July 1976), and the

underlying visa petition was (eventually) approved. There is no indication in the record that the .application was returned to the respondent
for any reason. Accordingly, we find that the respondent, in accordance
with the provisions of 8 C.F.R. 245.2(a)(2) (1976), effectively filed her
adjustment of status application on July 14, 1976, and that she is not
barred from adjustment under the provisions of section 245(c) of the
Act.
As the immigration judge determined that the respondent had not
established statutory eligibility for section 245 relief, he did not reach
the issue of discretion. We will, therefore, remand the record for
further proceedings to determine if the respondent's application merits a favorable exercise of discretion.
ORDER: The record is remanded for further proceedings in accordance with the foregoing opinion and the entry of a new decision.

interpretation.
Id. at 4. The same considerations support our decision herein that the respondent
effectively filed her adjustment application on July 14, 1976.

157