Interim Decision #1768

Marna or BECERRA-MIVANDA
In Exclusion Proceedings
A-13539641
Decided by Board March 1, and August 18,196"7
Where respondent, a lawful permanent resident, departed the United States
during the pendency of deportation proceedings against him, returning after
a 3-day absence in Mexico, a determination of his status upon return to this
country may properly be made in exclusion proceedings under section 236,
Immigration And Nationality Act. in which the Government bears the burden
of proof (Swong Hal Chew v. Golding, 344 U.S 590, and Hwonp Wei uses) v.
Rogers, 257 11'.2d 606].

(1)

(2) A charge of excludability under section 212(a) (31) of the Act that respondent knowingly and for gain assisted aliens to enter the United States in violation of law is not sustained since it has not been established that there was.
gain, actual or anticipated, where the only evidence on the question of gain
consists of statements by three of the aliens involved, which statements were
repudiaXed by the testimony of two of the makers, both as to content and circumstances under which obtained, and there is an absolute denial by respondent
of any gain.
EECXVDABLE

ON BEELISIP

Act of

1952—Section 212(a) (31) [3 U.S.C. 1182(a) (31) ]Knowingly and for gain assisted aliens to enter
the United States in violation of law.

or AppnroAuT :

Ox Butters or Sumac:

Jesus B. Oeboa, Jr., Esquire

A. Vielhaber
Appellate Trial Attorney

1236 Southwest Center
El Paso, Texas, 79901
(Brief submitted)

Jay Segal, Trial Attorney
(Brief submitted)
Charles Gordon
General Counsel

BEFORE THE BOARD

This is an appeal from the order of the special inquiry officer finding
applicant excludable on the specified ground and ordering him excluded and deported.
Applicant is a 80-year-old single male alien, native and citizen of
Mexico, who was admitted to the United States for permanent resi358

Interim Decision #1768
Bence on August 5, 1963 at El Paso, Texas. The charge herein arises
from a trip to Mexico, which took place in the first days of October
1965, and the applicant's return therefrom to the United States. The
following are the facts about which there is no dispute:
On October 4, 1965, in the very early hours of the morning, applicant,
driving his 1965 Chevrolet automobile, crossed the border from Mexico
into the State of Texas. Shortly thereafter he stopped and picked up
several people, and then proceeded to drive toward the town of Tulia,
Texas. The car was stopped by United States border patrol inspectors
on Carlsbad Highway short of its destination. There were seven people
in the car. They were:
Bogen() Becerra-Miranda,' the applicant;
nimunclo TienerreAfirsnds, brother of the oppliennt:

Roberto Becerra-Miranda, also known as Roberto Martinez Gonzales, another brother of the applicant;
Javier Miranda, first cousin of the applicant;
Oscar Lascano -Fleanes, third cousin of the applicant :

Manuel Macias-Etscajeda, from the same town as applicant;
Hector Ortego-Ortero, from the same town as applicant.

The arrest on the highway took place between 8 and 4 a.m. All of
the persons in the car were taken back to the border patrol station at
El Paso, Texas, where they were questioned. Applicant, after being
advised of his rights, declined to make a sworn statement and was
thereafter released (Ex. 5, p. 3). Javier Miranda, who was a lawful
permanent resident alien, was released (Tr. p. 73) and there is no indication that any statement was ever taken from him. Applicant's two
brothers were questioned but neither gave any information (Tr. p. 52)

and no statements were taken from them. Three statements in the
English language, each containing substantially the same text, were
signed and sworn to by the remaining members of the group and are
in the record as part of Exhibit 5. Their substance is as follows:
The affiant, together with four other men, of whom two were brothers of the
applicant, on October 8, 1965 went to applicant's home in Ban Ignacio, Mexico.
Applicant asked all of them if they had papers to enter the United States legally
and they all said they did not. He told them that he would take them to Tulia,
Texas where there was work, for $20 each, which they could pay after they
started working. He told them to wait at the headgates in San Ignacio on the
Mexican side and to cross when they saw his ear on the U.S. side. They went
to the headgates and waited and then at about 12:80 a.m. waded across the Rio
Grande River near Tornillo, Texas, without presenting themselves to any immigration officer for inspection. They met applicant and got into his 1965 yellow
Chevrolet and were driven through Ysleta, Texas to the Carlsbad Highway,
where they were arrested by immigration officers after a short drive. They had
all been told by the applicant earlier in the evening at his home that if they
were arrested, they were to tell the immigration officers they bad already crossed

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Interim Decision #1768
and were on the U.S. highway when they were picked up by applicant, by chance
and without prearrangement

The affidavits end with the statement that they were read to affiants
in the Spanish language, were true and correct, were made without
coercion or threat and without being promised anything by anyone.
A few days after this arrest, a criminal complaint was filed against
applicant in the United States District Court in El Paso, charging
violation of section 1325 of Title 8 U.S.C. and section 2 of Title 18
U.S.C., in that he had aided and abetted Oscar Lascana-Beanes, an
alien (one of the passengers) to elude examination and inspection by
immigration officials. Bail was set at $1500 which he apparently could_
not meet and applicant was detained in the El Paso County jail. All
of the others who had been in the car, with the exception of Javier

Miranda, were held. as material witnesses under bond of $1000, which
they could not meet, and were likewise detained in the custody of the
United. States Marshal. On March 7, 1966 applicant pleaded guilty to
the charge and on March 17, 1966 he was sentenced to six months'
imprisonment, with sentence suspended and the applicant being placed
on probation without supervision for six months. On the face of the
Judgment and Order of Probation there is the following
It is recommended by the court that the defendant not be deported under section
1251, T. 8, U.S.C. Approved : (signed) Mario J. Martinez, Assistant U.S. At curney.

At the hearing, applicant testified that he remained in El Paso for
about two weeks after the criminal proceedings were completed and
then went on to California. An order to show cause in deportation
wroceedings, issued on July 18, 1966, was sent by certified mail to
applicant's last address in El Paso, and set the deportation hearing for
July 29, 1966. It was received by applicant's aunt, who brought it to
applicant's attorney, who then communicated with applicant in Los
Angeles by telephone. Applicant was advised that he would have to be
in El Paso for the hearing on the date set. He arrived in El Paso on
the morning of that day and was advised by his attorney that the hearing had been adjourned. He then crossed into Mexico on July 29, 196g
and when he sought to return on August 1, 1966 was excluded and held
for these proceedings.
At the hearing, excludability was contested. Applicant emphatically
denied that there had been any element of gain, claiming that he himself was going to Tulin to look for work, that he was taking his two
brothers with him, and that the others decided they would like to go
also, and joined the brothers. The three statements above mentioned,
which had been taken by the Government and which were introduced in
evidence as part of Exhibit 5, were the sole evidence on the question

360

Interim Decision #1768
of gain. Two of the persons from whom the statements had been taken,
Hector Ortega-Ortero and Oscar Lasca,no-Beanes, appeared as witnesses for applicant at the hearing. They testified under oath that the
applicant had never asked them for money, nor had they ever promised
to pay him any, and that they had never told anyone they had. They
stated that they had been specifically asked by the border patrol officers whether they had promised to pay any money and had specifically
denied it. They stated that they did not know the actual contents of the
affidavits, believing them to be confessions that they were in the United
States illegally, and that they definitely did hot know they contained
anything about a, promise to pay the applicant. They also testified that
the affidavits were not signed until 12 hours after they had been arrested
and, during that 12 hour period, until they signed, they were not permitted to sleep and were not given anything to eat. In short, they
-

repudiated the statements not only as to content, but implied that they
were signed under duress.
The Government produced as witnesses two border patrol officers.
One, J. T. Robinson, stated that he had come on duty at 8 a.m. on the
morning of October 4th and had questioned every person in the car
(he gave the number of passengers as five instead of six and had no
recollection whatever of Javier Miranda). It is his testimony that the
statements were prepared by him by azking specific questions of the
affiants in Spanish, and then casting the question and answer into one
statement in English. Although his memory was vague on many details,
he testified that he remembered Hector Ortega-Ortero in particular
because "it was a little difficult to bring him around to the statement"
(Tr. p. 40,1ines 5 and 6). When called upon in cress-examination to explain what he meant, he stated that this particular witness was a liar,
who at one point would not even tell the officer his correct name, but
that he nevertheless believed Mr. Ortega had told him the truth when

he asked Mr. Ortega if he had paid or promised money to applicant
and Mr. Ortega said that he had (Tr. pp. 49 and 50).
The other witness, Edward J. Zizik, had nothing whatever to do with
the questioning of the aliens or the preparation of the statements but
was involved only in reading one of the three English statements, in
Spanish, to the person who later signed it, stating that he had been
asked to do so by witness Robinson because witness Robinson was very
busy.
Both officers, although they admitted the normal procedure in the
border patrol was to bring the aliens to the border patrol station and
question them until they made a statement before sending them off to
detention quarters, were indefinite as to what had happened to these
aliens in the four or five hours between the time of their arrest and the
361

Interim Decision #1768
time when these witnesses came on duty. Both were insistent that the
aliens had been denied neither sleep or food, but when questioned more
particularly had no personal knowledge of either of these facts. Both
stated that the aliens had been taken to lunch.
In spite of the fact that both of the Government witnesses had been
present when the affidavits were signed and both of their signatures
appear on all three statements, neither could remember when the affidavits had been signed. Witness Robinson could not testify with any
specificity whatsoever. Witness ZiAir finally stated that he believed
that it was in the afternoon but that it could have been anywhere between 1 and 5 p.m.
The special inquiry officer stated at page 8 of his opinion:
It is evident that a choice must be made as to whether these witnesses were
telling the truth on October 4, 1965 when they executed the affidavits or when
they testified during the hearing. I prefer to accept the testimony in their
affidavits.

The special inquiry officer then went on to say that although the Service had not established that there was any actual payment to the applicant, he was inadmissible under the Board's decision in Matter of
8 I. & N. Dec. 182. That case involved a situation where the
testimony established rather clearly that the alien had received at least
$5 for gasoline for the trip, and that several of the aliens who came
with him had promised to pay him additional money if and when
they could. It was apparently in reliance upon the ruling in that case,
that anticipated gain constitutes gain sufficient to create deports.
bility or excludability under the appropriate section, that the special
inquiry officer has found applicant inadmissible here.
Both applicant's counsel and the Government have raised many
points in the brief and the reply brief. We consider that only certain
of them are relevant and will direct our attention to those.
It is counsel's contention that since proceedings on the instant charge
were initially brought against the applicant in deportation and since
his departure and stay in. Mexico were of very 'short duration, for the
claimed purpose of visiting his mother, that the case comes within the
guidelines set down in the case of Rosenberg V. Flenti, 374 U.S. 449,
and that applicant is not presently seeking to make an entry. Therefore, the instant proceedings should revert to the original deportation
proceedings. The Service reply is that applicant vitiated his lawful
permanent resident status by his "previous unlawful act" and further,
that he is making an entry because the purpose of his trip to Mexico
was to obtain witnesses for the instant proceeding and was, therefore,
not within the purview of Monti. We do not accept the rationale of
either. We find, however, that the special inquiry officer vans correct
362

Interim Decision #1768
in dismissing counsel's motion to treat these as deportation proceedings. The proceedings are properly held in exclusion. In this particular
situation, applicant was first advised of the pendency of proceedings by
a telephone call from his attorney, who advised him that he would have
to be in El Paso for a hearing on July 29, 1966 in connection with the
charge of deportability. It is applicant's own testimony that he had
expected proceedings earlier and had remained in El Paso for a

period of 15 days after the criminal proceedings were over in anticipation of immigration proceedings. While there is no evidence in the
record to show the degree and type of education applicant has had,
he appears to be of average intelligence and must be held to the standard of the reasonable man. It is our belief that the reasonable man,
being advised that deportation proceedings were pending against him
on a charge known to him, and that a hearing had been set, even upon
learning that the hearing date had been postponed, would have been
put an notice that the continuance and legality of his status in the
United States was in question. A departure from the country, for no
matter what purpose, under those circumstances could reasonably be
assumed to carry with it the possibility that it might change the applicant's status in the United States and his ability to reenter. This situation is considerably different from the casual two-hour visit of Fleuti.
Counsel claims that the applicant was seriously prejudiced because
these proceedings were in exclusion and not deportation, arguing that
in deportation proceedings the burden would have been upon the
Government to establish deportability, whereas in exclusion proceedings the burden was upon the applicant to establish admissibility. It
is his further contention that because the proceedings were held in exclusion, the applicant was denied the protection of due process of law.
Although he several times cites the case of Kwong Hai Chew v. ColdMg, 294 U.S. 590, it would appear that he has overlooked its significance. In that case, it was ruled by the Supreme Court of the United
States, that an alien who had previously been lawfully admitted for
permanent residence, and who was seeking to make a reentry, was not
in the position of a person seeking initial admission, but was to have
his status assimilated to that of a resident alien who had not left the
United States and was, therefore, entitled to due process of law and to
a hearing. In the second Chew case, Ewong Hai Chlw v. Bogen, 257
F.2d 606 (D.C. Cir., 1958), the court carried the situation one step
further, and declared that not only was the returning resident alien
applying for admission entitled to a hearing, but he was entitled to a
hearing at which the Government bore the burden of proof. The Government concedes that this is so in its reply brief.
The question here is whether the Government has sustained that
363
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Interim Decision #1768
burden. The doubtful element is whether there was gain, actual or
anticipated. The Government does not claim there was actual payment, but only a promise to pay. The evidence on that point consists
of the three sworn statements introduced as part of Exhibit 5. The
validity of those statements is attacked by the testimony of two of
the three persons who made them, both as to content and the circumstances under which they were obtained. In addition, there is applicant's testimony, in which there is an absolute denial of gain. It is
his statement that he made the trip because he himself wished to look
for work at Tulia, Texas, and he was taking his two brothers with him.
Be testified that the other persons decided that they would like to look
for work also, and were there, with his brothers, waiting to be picked
up. There is no evidence that any of the passengers paid for, or
promised to pay for, gasoline or any of the other expenses of the trip.
We do not concur with the special inquiry officer's preference to

accept the aliens' statements in their affidavits over their testimony at
the hearing. The record gives no objective support for such a preference. Nor do we consider that it is accurate to state that it is evident
the aliens were willing to help applicant to the extent of committing
perjury during the hearing_ The record likewise fails to support this
assertion.

From our reading of the case., we do not find that the Government
has made a sufficient showing of gain. Inasmuch as gain is an essential
element in the establishment of excludibility, the Government has
not borne its burden.
ORDER: It is ordered that the decision of the special inquiry
officer heretofore made herein be set aside.

It is further ordered that the applicant be admitted as a returning
resident alien.
BEFORE THE BOARD

On September 21, 1966, the special inquiry officer rendered his decision in these proceedings, finding applicant excludable as charged
and ordering him excluded and deported. Timely appeal was taken
and the Service requested oral argument; the Board was advised that
applicant could not meet the cost of counsel's appearance for argument, and the Government presented its argument unopposed on De-

cember 8, 1966. On March 1, 1967, after careful consideration of the
entire record, the briefs on appeal, and the oral argument, the Board
rendered its decision sustaining the appeal, finding it had not been
established that applicant was excludable as charged, and ordering
that he be admitted as a returning resident alien.
The Service moves .for reconsideration, urging that the Board vacate its order and reinstate the special inquiry officer's decision order364

Interim Decision #1768
ing applicant excluded and deported. The moving papers raise no
issue that was not taken into consideration in reaching the decision
on appeal.
In making our decision, we looked to the rulings handed down by
the United States Supreme Court and the Court of Appeals, D.C.
Circuit, respectively, in the cases of Kwong Hai Chew v. adding, 344
U.S. 500, and Hwang Hai Chew v. Rogers, 257 F.2d 606. Chew was a
seaman who had been lawfully admitted for permanent residence, had
family and property ties here and had already applied for naturalization. He sailed foreign on a vessel flying the United States flag, and
upon his return had been ordered permanently excluded, without a
hearing. His petition for habeas corpus had been dismissed by the
District Court, the dismissal being affirmed in the Circuit Court, in
reliance upon a 4 3 holding 'by the Supreme Court that one, Ellen
ICnauff (citation below), the bride of an American citizen who was
seeking to make her first entry into the United States, could properly
be excluded without a hearing. In Chew's case, the Supreme Court
stated:
-

Both courts relied upon United States ex rel. Knauff v. Shaughnessy, 388 U.S.
537, 94 L.Ed. 817, 70 S.Ct. 800. We granted certiorari because of the doubtful
applicability of that decision and the importance of the issue in the administration of the nation's immigration and naturalization program * *
(Emphasis
supplied.)
The The ease of United States ex rel. Enauff v. Shaughnessy (U.S.), supra,
relied upon below is not in point. It relates to the rights of an alien entrant and
does not deal with the question of a resident alien's right to be heard. For purposes of his constitutional right to due process, we assimilate petitioner's status
to that of an alien continuously residing and physically present in the United
States. * * *

The case was reversed and remanded, and when it came before the
Court of Appeals of the D.C. Circuit, that court held :
• • * the court has concluded: (1) that the law of this case is that if Chew
is to be deprived of his status—a status described in Kwong Hal Chew v. Colding,
844 U.S. 590 at page 596, 73 S.Ct. 472, at page 477, 97 L.Ed. 576, as lassimilaterd) • * * to that of an alien continuously residing and physically present
in the United States'—the Immigration Service may do so only in proceedings in
which the Service is the moving party, and bears the burden of proof • * *.
(Emphasis supplied.)

The Service submits that in applying these criteria to this applicant,
who was lawfully admitted to the United States for permanent residence in 1963 and was held for these exclusion proceedings on return
from a three-day visit to Mexico in July, 1966, the Board has misinterpreted the Chew decisions. It urges that we must restrict the Chew
holdings to alien seamen lawfully admitted for permanent residence,
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Interim Decision #1766
who sailed foreign on vessels flying the United States flag, after first
having applied for naturalization under Section 307 of the Nationality
Act of 1944). The language of the Supreme Court, not only in describing
its reason for granting certiorari, but in its repeated references to the
rights and status of resident aliens, make it abundantly clear that the
decision was intended to reach resident aliens returning from a brief
trip abroad, as a class, and Chew as a member of that class, rather than
to Chew personally and to such other persons as might find themselves
in his exact circumstances. Another recognition of such general applicability is the following :
* * a resident of the United States cannot captiously be deprived of his constitutional protection when he seeks to reenter after a brief absence. "Even if he
returned as a crewman" or a stowaway" he is entitled to an adjudication of
his claims in a. fair 'mitring, in proceedings in 'which the Service is the moving
party, and bears the budren Of proof."

See also, LcON.Reporter, Vol. 15, No. 4, April 1967, "When Does an
Alien Enter the United States it" (Text on burden of proof in exclusion
and deportation proceedings, and footnote No. 5.)
We do not regard as persuasive the argument that United States ex
roe. Mesa v. Shaughnessy, 845 US. 246 (1953) dearly delimited the
scope of Chew, for the same reason that the Supreme Court held the
Chew case to be inapplicable—the facts in Mezei's case drastically differed from those in Chew's.
We adhere to our holding that the applicant, an alien lawfully
admitted for permanent residence who was seeking to return from a
three-day visit to Mexico, was to have his status assimilated to that of
a resident alien who had not left the United States, and was entitled
to a hearing at which the Government bore the burden of proof.'
The second area of error charged in this motion is the Board's
evaluation of the evidence. Wo do not concur with the service conten"Chew v. Colding, 844 U.S. 590, 73 S. Ct. 472, 97 L. Ed. 578 (1953). "
"Id. ; Roggenbihl v. Lusby, 116 P. Stipp. 315 (Hass. 1953) (previous residence
not lawful).
"Matter of B., 5 IAN 712 (1954).
22 Chew T. Rogers, 257 F. 26 806 (0.A.D.0. 1958).
See also Steelier v. Rosenberg, 216 F. Supp. 511, 514 ( S. D. Cal. 1963) in which the court characterized as a
'misapplication of the Act' the use of exclusion procedure in the case of a longtime resident returning from a temporary absence abroad.
Pp. 8-108 and 8-107, Immigration Law and Procedure, Gordon and Rosenfield.
In our decision we stated that the Government in its reply brief had conceded
the above; on :notion it is denied that there was ever such a concession. We had
reference to the text of Point No. 4 of the Trial Attorney's Reply Brief of
November 2, 1968. However, assuming we have misread the import of the said
material, it was -never in any sense a Controlling factor and was referred to only
to show that there appeared to be no disagreement on the Point

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Interim Decision #1768
tion that there has been sufficient proof of gain, which is the only fact
here in issue. The evidence that there was gain, prospective only, was
in the form of sworn statements taken from three of the six aliens who
had been riding with applicant. Two of those three appeared and
testified at the hearing, denying under oath that they had ever piomised to pay the applicant anything or ever told anyone that they had
made such a promise. They repudiated the sworn statements, denying

knowledge of their actual content and claiming that they had been
signed under duress. Applicant at the exclusion hearing denied under
oath that he had ever been paid anything or promised payment.
The Government presented as its witnesses two border patrol officers
who, not having been parties to the arrangements made with applicant,
could not testify on the question of gain, but only on the contents of the
repudiated statements and the circumstances under which they had

been made. The officer who had actually prepared the statements was
vague on many details, although he remembered one of the witnesses
in particular because "it was a, little difficult to bring him around to
the statement," explaining on cross-examination that he meant the
witness was a liar, but he believed him to be truthful when he allegedly
stated that he had promised to pay the applicant. This border patrol

officer, aware that the aliens were claiming they had been held for 12—
14 hours without food or sleep before the statements were signed,
claimed he could not even make a guess as to what part of the day the
aliens had signed the statements, although they were signed before
him. The other officer, although he had no part in taking or preparing
the statements but had merely translated one into Spanish to the alien
who had then signed it, was able to remember that the statements had
been signed in the afternoon, at some time between land 5 P.M. Both
officers had no knowledge of what had happened to these aliens between their apprehension at 3 or 4 A.M. and the time when these
officers came on duty, but admitted that it was customary to question
aliens until they made a statement, before sending them on to detention quarters. Both were insistent that the aliens had not been denied
either sleep or food, but on questioning it was apparent that they had
no personal knowledge of this.
After careful consideration of the entire record, we held in our
decision of March 1,1967:
From our reading of the case, we do not find that the Government has made
a sufficient showing of gain. Inasmuch as gain is an essential element in the
establishment of excludability, the Government has not borne its burden.

in the moving papers warrants a. contrary finding.
The analysis of the testimony do not compel the interpretations urged
Nothing contained

in the motion, and do not make the facts add up to a stronger show-

367

Interim Decision *1767
ing than that found by the special inquiry officer. The Board i3 not
bound by the special inquiry officer's findings, and can make its own
independent determination of both the facts and the law. Matter of
B , 7 I. 85 N. Dec. 1. We did so here for the reasons set out in our
decision on the appeal. We have not now been persuaded that we
were in error.
For all of the foregoing reasons, we find no merit in the motion
and the same will be denied.
ORDER: It is ordered that the instant motion be and the same is
;hereby denied.
—

1368


Interim Decision #2312

MATTER OF CHUNG
In Visa Petition Proceedings
A-20017899

Decided by Board August 19, 1974
Beneficiary, born in Korea in 1957, and orphaned at a young age, was taken into the family
of the petitioner's husband. Petitioner's registration of beneficiary's birth in the Korean
Family Register in 1968 as the natural child of petitioner and her husband, without any
formal adoption proceedings, did not create a valid adoptive relationship under Korean
law. Accordingly, beneficiary cannot qualify as an adopted daughter of the lawful
permanent resident petitioner and is ineligible for preference classification under section 203(a)(2) of the Immigration and Nationality Act, as amended. [Matter of Chong, 13
I. & N. Dec. 415, overruled, to the extent inconsistent with this decision.]

The petitioner is an alien lawfully admitted for permanent residence
who sought preference status for the beneficiary as an unmarried
adopted daughter under section 203(a)(2) of the Immigration and Nationality Act. In a decision dated February 19, 1971, the. district
director approved the petition, but certified the case to us for review.
The decision of the District Director will be reversed.
The petitioner, the petitioner's husband, and the beneficiary are natives and citizens of the Republic of Korea. The record indicates that the
beneficiary was born in July of 1957, was orphaned at a young age, and
was taken into the family of the petitioner's husband. Several years

after her marriage into the family in which the beneficiary resided, the
petitioner registered the beneficiary under Korean law as the natural
child of her 'Insbancl and herself. The petitioner and her husband,
however, did not attempt formally to adopt the beneficiary, evidently

because of their belief that a female child could not be adopted under
Korean law.
The question presented in this case is whether the registration of the
beneficiary as the natural child of both the petitioner and the petitioner's
husband created a valid adoptive relationship in Korea. In Matter of

Chong, 13 L Sc N. Dec. 45 (BIA 1968), we were presented with a similar
question. In Chong, the petitioner's husband had fathered a child who
was born out of wedlock. After the mother of the child died, the
petitioner and her husband registered the child as their natural child.
We determined that this registration was sufficient to constitute' an
62

Interim Decision #2312
adoption under Korean law. Our decision in Chong, however, appears
questionable in the light of new information which we have received
from the Far Eastern Law Division of the Library of Congress. 1
This petitioner registered the beneficiary's birth in 1968. However, as
indicated in the attached memorandum of foreign law, the Supreme
Court of Korea held in 1967 that notification or registration of the birth
of a child cannot replace registration of adoption. Accordingly, since the
record does not indicate that any formal adoption proceedings were
undertaken in Korea, the beneficiary does not qualify, as the adopted
daughter of the petitioner. The decision of the district director was

incorrect.
Although Matter of Chong, supra, is distinguishable on its facts from
this case, the underlying legal analysis cannot be distinguished. Accordingly, Matter of Chong is overruled to the extent that it is inconsistent
with this opinion.
ORDER: The decision of the district director is reversed and the
approval of the visa petition is withdrawn.
ADDENDUM
ADOPTION OF AN ORPHAN IN A PRIVATE HOME UNDER

THE LAW OF THE REPUBLIC OF KOREA

In a case involving the adoption of an infant whose birth had not been
registered by its natural parents, the Supreme Court of the Republic of
Korea held in 1947 that "if the adoptive father gives notification of the
birth stating that the (adoptive) child is his legitimate child and that of
his wife, it is reasonably construed that the adoptive relation arises
therefrom, provided that other substantive requirements of adoption
are met." 1 In a similar case, the Supreme Court held in 1967, however,
that "the notification of adoption . . . cannot be replaced by the notification of birth which states that the child of another (adoptive child) is a
legitimate child of the adopting parents . . . and that the status of
adopted child would not result from such notification of birth." 2
Agreeing with the 1947 decision, Professor Kim elaborated on the

subject in a 1969 publication as follows:
In Korea there are many cases in which the foster parents give notification of birth,
stating that the child is thcir own child, although they wish to effect an adoption. This is

motivated by two considerations: their love toward a child who was brought to their
' The full text of the pertinent memorandum of foreign law is attached as an addendum
to this opinion.
' Supreme Court decision, November 25, 1947; P'anre cleonguan [Collection of Cases)
(Seoul: Ch'Ongrimgak, 1966), p. 186.
2 This 1967 decision was reported in the 1971 edition of the above Collection of Cases
which was received by the Library of Congress in 1972. See p. 186-186.1.
63

Interim Decision #2312
home at an infant age and their desire to regard him as their legitimate child in a family
register. Due sympathy and certain remedy should be accorded to such foster parents'
feelings. Althc ugh the relationship of legitimated child would not result from such
registration, it should be construed that the child acquires the status of adopted child
thereby.'
,

Nowhere did Korean statutes, the Supreme Court decisions or Professor Kim's statement mention the adoption of an orphan' in such a
manner. However, Professor Chung Kwang-hyon, the foremost authority on Korean family law, was of the opinion thd Professor Kim's
statement should be broadly interpreted to include faster parents' adoption of an orphan whose birth had not been registered- 4 According to
Professor Chung, if the foster parents give notification of birth, stating
that the orphan child is their own child, it should be reasonably construed that st.ch child acquires the status of adopted child in view of the
public policy of protecting an orphan's well-being. For this reason; he
disagreed with the 1967 decision.

3 Kim Chu-su, Chnsok ch'inzok sangsokp6p [Aiticle by Article Commentary oh the
Law of Relative.; and Succession] (Seoul: Popmunsa, 1969), p. 409. Professor lam failed to

mention the 1967 decision in his book_

Dr. Chung h retired and pow lives in the United States. He expressed his opinion in a
letter addressed to me on May 11, 1973, and in the subseqnent meeting on May 13, 1973.
Prepared by
Sung Yoon Cho
Senior Legal Specialist
Far Eastern Law Division
Law Library, Library of Congress
Waohinglun,

pc 20540

July 1974

64


MATTER

of

S—

In SECTION 249 Proceedings
A-6420797
A-4411537
Decided by Assistant Commissioner March 9, 1959
Record of lawful entry—Section 249 of 1952 act, as amended—Waives known
grounds of inadmissibility provided alien retains status and no new ground of
inadmissibility arises—Reeord of unlawful entry is equivalent of no record
of lawful entry.
(1) An alien admitted to the United States prior to June 28, 1940, in a nonquota immigrant status to which he was not entitled is not barred from
qualifying for tne uenents or amended section 248 or the 1902 act if he is
Otherwise eligible. The statutory requirement that there be no record of a
lawful admission is satisfied when a record of an unlawful entry exists.
(2) A finding of inadmissibility under section 212(a) (19) of the 1952 act does
not result in ineligibility for adjustment of status under amended section
249. Moreover, once a record of lawful admission for permanent residence
has been created pursuant to section 249 this is considered to constitute, for
purposes of reentry, a waiver of all known grounds of inadmissibility, provided the alien retains the status accorded him and no new ground of inadmissibility arises.
APPLICATION: Creation of record of lawful admission for permanent residence
under section 249 of the immigration and nationality ATt and
for the benefits of sections 5 and 7 of the Act of September
11, 1957.
BEFORE THE ASSISTANT COMMISSIONER

Discussion: The applicants are husband and wife. They have
filed applications to create is record of lawful admission for permanent residence under section 249 of the Immigration and Nationality Act and the cases have been certified to the Central Office.
Both applicants are natives and citizens of Turkey; the husband is
55 years of age and the wife is 52. The husband first entered the
United States on January 15, 1928, with a nonquota immigration
visa issued to him under section 4(a) of the Immigration Act of
1924, as the child of a United States citizen. He last entered the
United States on February 26, 1932, as a citizen of the United
States. The wife entered the United States on November 24, 1932,
with a nonquota immigration visa issued to her under section 4(a)
288

of the Immigration Act of 1924, as the wife of a United States
citizen. The applicants were married in France on June 24, 1926.
They have three children, all citizens and residents of the United
States. The yuungent child Nvae born on March ln, 158S.
In 1944 the applicants voluntarily disclosed to this Service that
the nonquota visas with which they were admitted to the United
States were fraudulently procured. The husband has admitted
committing the crime of perjury in connection with his application
for a nonquota visa under section 4(a) of the Immigration Act of
1924, in that he falsely stated that he was 18 years of age and single
whereas he was, in fact, 24 years of age and married and ineligible
for a nonquota visa under that section of law. He also admits the
commission of the crime of perjury on November 8, 1930, when he
made application for a certificate of derivative eltizenehip. The
wife has admitted the commission of the crime of perjury on October 18, 1932, in her application for a nonquota visa under section
4(a) of the Immigration Act of 1924, as the wife of a United States
citizen, in that she was aware that her husband was not and never
had been, a citizen of the United States. Therefore, both applicants aro inadmissible to the United States under section 212(a) (9)
of the Immigration and Nationality Act. Since the nonquota immigration visas issued to them were procured by fraud they are also
inadmissible under section 212(a) (19) of the act.
The applicants have established that they entered the United
States prior to June 28, 1940, and that they have resided here continuously since such entry. They have established that they are
persons of good moral character and that they are not ineligible
to citizenship. In the case of each applicant there is a record of
admission as a nonquota immigrant. However, since they were not
nonquota inunigiants as specified in the visas of their immigration visas they were excludable at the time of entry under section
13(a) of the Immigration Act of 1924. Therefore, since their entries were not lawful, no record of their lawful admission for permanent residence exists and they are eligible to apply for the benefits of section 249.
The applicants are inadmissible under section 212(a) (19) of the
1952 act on the ground that they procured visas by fraud. Consideration has been given to the thought that this ground of inadmissibility may be waived under the provisions of section 7 of
the Act of September 11, 1957. Such action is not necessary.
Under the provisions of section 249, as amended, a record of lawful
admission for permanent residence may be created despite inadmissibility under any provision of the law except those provisions
of section 212(a) of the act relating to criminals, procurers and
other immoral persons, subversives, violators of the narcotic laws,
289

or smugglers of aliens. Therefore, favorable action may be taken
on these applications despite a finding of inadmissibility under
section 212(a) (19) of the act. When a record of lawful admission
for permanent residence is created under section 249, despite a
known ground of inadmissibility, such action constitutes a waiver
of that ground of inadmissibility for reentry into the United States
after a temporary absence so long as the alien retains the status
accorded him and so long as no new ground of inadmissibility has
arisen.

The husband is self-employed in the rug business with an annual
income of over $5,000. In addition, the applicants own their own
home valued at $18,000. Investigation dicolnqpc no dorngntnry in..
formation concerning the applicants other than that mentioned above.
It has been established that the applicants are persons of good moral
character. There is no evidence to indicate that their admission
into the United States would be detrimental to the national welfare, safety, or security. It has been established that their exclusion would result in extreme hardship to their United States
citicen sun. They have established eligibility for creation of records of lawful admission for permanent residence under section
249 except for their inadmissibility under section 212(a) (9) of the
act
Under the authority contained in section 5 of the Act of September 11, 1957, inadmissibility under section 212(a) (9) may be
waived. The applicants have established eligibility for such discretionary relief. An order will be entered waiving the ground
of inadmissibility under section 212(a) (9).
Order: It is ordered that the application of Y--S
and
S—S
for waiver of their inadmissibility under section 212
(a) (9) be granted pursuant to the authority contained in section 5
of the Act of September 11, 1957.
It is further ordered that record of lawful admission for permanent residence be created in the names of Y
S
and S
S
pursuant to the provisions of section 249 of the Immigration
and Nationality Act.

eon


Interim Decision #2219

MATTER OF BOHMWALD
In Deportation Proceedings
A-19898055

Decided by Board August 17, 1973
for
withholding of deportation of Chile pursuant to the provisions of section 243(h)
of the Immigration and Nationality Act, as amended, is denied where the
motion is unsupported and does not make a prima facie showing that the alien
has a well-founded fear of persecution on account of race, religion, nationality,
membership of a particular social groups, or political opinion.

Motion to reopen the deportation proceedings to permit an application

CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrantremained longer than permitted.
ON BEHALF OF RESPONDENT:
Edward Lopez, Esquire

ON BEHALF OF SERVICE:
Reece B. Robertson
Trial Attorney

153 Glendale Boulevard

Los Angeles, California 90026

This is an appeal from an order of an immigration judge denying
the respondent's motion to reopen. The appeal will be dismissed.
Respondent is a male alien, native and citizen of Chile, who was
admitted to the United States on or about November 4, 1970 as a
nonimmigrant visitor and remained longer than permitted. At a
hearing before an immigration judge on January 26, 1973, respondent admitted the truth of the factual allegations of the order
to show cause and conceded deportability. The immigration judge
found him to be deportable and granted him the privilege of
departing voluntarily by April 26, 1973. Appeal to this Board was
waived and the order of the immigration judge became final. In
accordance with the usual practice where there is no appeal, the
minutes of the hearing were not transcribed. Respondent failed to
depart and the alternate deportation order vested.
On May 16, 1973 counsel for respondent filed a motion to reopen
to permit him to apply for withholding of deportation to Chile
under section 243(h) of the Immigration and Nationality Act. The
motion, which is unsupported by affidavit or other evidentiary
408

Interim Decision #2219
material as required by 8 CFR 3.8(a), states in cbnclusory terms
that respondent is a member of the Catholic faith and opposed to
the Communist form of government presently in power in Chile;
and that he would be persecuted if deported to Chile because he is
opposed to the Communist form of government now in power in
Chile and because he could not practice his religion. In his brief
order dated June 6, 1973 now before us on appeal, the immigration
judge denied the motion. The immigration judge refers to a
petition for review filed by respondent in the United States Court
of Appeals for the Ninth Circuit on May 16, 1973, which is still
apparently pending.
We do not need a transcript of the deportation hearing to
adjudicate the appeal. In his motion to reopen, counsel does not
refer to, and apparently does not rely on, any evidence adduced at
that hearing. The motion to reopen makes no prima facie showing
that respondent has a well-founded fear of persecution in Chile on
account of his race, religion, nationality, membership of a particular social group, or political opinion (Matter of Dunar, Interim
Decision No. 2192 (BIA, 1973)). The motion was properly denied.
ORDER: The appeal is dismissed.

409


Interim Decision #2214

MATTER OF GUIOT
In Section 223 Proceedings
A-14673904
Decided by District Director July 16, 1973
An alien admitted to the United States for permanent residence who desires to
depart for approximately two years to teach at a university abroad, who is
taking with him his family and all of his possessions, whose principal place of
abode will be abroad during that period, but who firmly intends to thereafter
return to the United States, is eligible for the issuance of a reentry permit
since he still enjoys the status of an alien "lawfully admitted for permanent
residence" as that term is defined in section 101(aX20) of the Immigration and
Nationality Act.

This matter is before me on remand by the Regional Commissioner for reconsideration and a new decision on the application

which was filed on August 21, 1972 and denied by this office on
August 25, 1972.
The previous decision in this case was based on our conclusion
that the applicant would abandon his status as a lawful permanent resident of the United States upon his departure to Canada
where he intended to remain for somewhat less than two years.
During the anticipated stay in Canada the applicant intended to
teach at a university, and would not be required to pay income tax
to the Canadian Government. Additionally, after departure to
Canada the applicant would have no residence, family, real or
personal property, checking or savings account, or other ties which
would require his return to this country. However, during an
interview with an officer of this Service prior to his departure, the
applicant insisted that it was his firm intention to return to the
United States to reside permanently upon completion of his
teaching assignment in Canada.

Thorough review of precedent court and administrative decisions failed to disclose a case which completely paralleled the
application before us. Accordingly, after review of numerous decisions which related in part to determinations regarding abandonment of permanent resident status, we concluded that the definition of the term "residence" in section 101(aX33) of the Immigration and Nationality Act, as amended, was applicable in the
instant case. The term "residence" defined therein means, "the

393

Interim Decision #2214
place of general abode; the place of general abode of a person
means his principal, actual dwelling place in fact, without regard to
intent." (Emphasis added.) Clearly, when the applicant departed to
Canada, severing all material ties with this country, his place of
residence or general abode was in Canada rather than in the
United States. Since intent can play no part when considering the
definition of residence under section 101(a)(33) of the Act, we
concluded that the applicant was not entitled to a permit to
reenter the United States as his departure would constitute
abandonment of his status as a lawful permanent resident of the
United States. Therefore, his application for permit to reenter the
United States was denied.
It now appears, after further study of the statute and consideration of helpful information furnished by other Service offices, that
our decision was in error and the literal definition of the term
"residence" contained in the statute should not be applied to the
word "residence" contained within the term "lawfully admitted for
permanent residence." The latter term is defined in section
101(aX20) of the Act and means, "the status of living been lawfully
accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration laws,
such status not having changed."
Both the term "residence" and the term "lawfully admitted for
permanent residence" are defined terms under the Act, and we see
no reason to apply the former to construe the latter. In fact, to do
so would compel a holding that every lawful permanent resident
hotel dweller or rooming house lodger who was figuratively "living
out of a hat box" and decided to take a strictly temporary, albeit
extended, trip abroad with all his worldly possessions without
continuing to rent his hotel room or other lodging, had thereby
abandoned his lawful permanent residence in the United States.
That holding would be required in the instant case if we were to
follow this rationale, as the place of residence abroad would be the
"principal, actual dwelling place in fact" since under the definition
of "residence" intention must be disregarded. Under the same
reasoning, even if the instant applicant had rented a home for his
wife and children and left them in the United States while he
worked abroad, his principal, actual dwelling place in fact would be
his temporary foreign residence. Indeed such reasoning could
achieve the absurd result of requiring the denial of every application for a reentry permit on the ground that, during the applicant's absence, his principal, actual dwelling place in fact will be
abroad. This certainly was not the intent of Congress.
Section 223 of the Act permits the issuance of a reentry permit
to an alien who "has been lawfully admitted for permanent
394

Interim Decision #2214
residence," if the applicant desires to visit abroad and return to
the United States to resume that status. The application must be
made in good faith, and the applicant's proposed departure must
not be contrary to the interest of the United States.
Consequently, we believe the definition of "residence" in section
101(aX33) of the Act, which would preclude consideration of the
alien's "intent" in proceeding or remaining abroad, is inapplicable
in determining whether an alien . is qualified for issuance of a
reentry permit or for admission as a returning lawful resident.
Instead, the definition of "lawfully admitted for permanent resi-

dence" in section 101(aX20) is applicable. In applying that definition—"the status of having been lawfully accorded the privilege of
residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having
changed"—two determinations are involved. The first is whether
the alien was lawfully admitted as an immigrant or whether he
otherwise lawfully acquired permanent resident status. The second is whether such status has not changed.
The status of an alien, for whom the first determination is
favorable, may have changed through rescission of his permanent

resident status under section 246 of the Act, or through adjustment of status to that of a nonimmigrant under section 247 of the
Act. It may have changed if the alien departs when a final order
has been entered in deportation proceedings finding him to be

deportable and ordering him deported. Under such circumstances,
issuance of a document entitling him to readmission as a returning resident would be inappropriate because his departure would
execute the outstanding order of deportation and, therefore, he
could not resume lawful permanent resident status upon return.
Matter of Mosqueda, Int. Dee. No. 2127.) The status of the alien

also may have changed by departure without the intent to return
to the United States (Matter of B—, I. & N. Dec. 211), or by
formulation of an intent to abandon his residence in this country
while abroad.
Use of the definition in section 101(a)(20) rather than the
definition in section 101(aX33) of the Act permits consideration of
the alien's intent in departing or remaining abroad. The alien's

actions, such as claiming nonresident alien status for Federal
income tax purposes, knowing such a claim is inconsistent with
status as a lawful permanent resident for immigration purposes,
may be a consideration in determining intent. In this respect, the
applicant has met the burden. Therefore, we conclude that the
applicant has established satisfactorily his intent to return to
resume his lawful permanent resident status. Accordingly, the
395

Interim Decision #2214
application for permit to reenter the United States should be
granted.
ORDER: It is hereby ordered that the decision entered in this
case on August 25, 1972 be withdrawn.
It is further ordered that the application for permit to reenter
the United States be, and the same hereby is, granted.

396


Interim Decision #2559

MATTER OF LEYVA

In Deportation Proceedings
A-14170842

Decided by Board January 18, 1977
(1) Denial of respondent's request for a second continuance of his deportation hearing was
proper where no showing was made that respondent was prevented from presenting
evidence or testimony as a result.
(2) Once alienage has been established, it is presumed to continue absent evidence to the
contrary. Respondent failed to offer any evidence of United States citizenship, and that
fact will not be presumed.
(3) Convictions for oral sex perversion under section 288a of the California Penal Code and
for burglary with intent to commit theft under section 459 of the California Penal Code
are convictions for crimes involving moral turpitude, not arising out of a single scheme
of criminal misconduct and subject respondent to deportability under section 241(a)(4) of
the Immigration and Nationality Act.
(4) A conflict in evidence tzunceining aliases used by respondent will be resolved against

respondent where a deportation charge is based on documentary evidence bearing a
name identical to that of respondent, absent evidence that it does not relate to him.
(5) Where each document relating to the record of conviction is accompanied by an entry
that the copy is a true and accurate copy of the original and is signed by a deputy of the
Clerk of Court, it will foe presumed that the custody requirement of Rule 44 of the
Federal Rules of Evidence has been met.
(6) Under Matter of Silva, Interim Decision 2532 (BIA 1976), respondent appears
eligible for discretionary relief under section 212(c) of the Act, and the record will be
remanded to afford him an opportunity to apply for a section 212(c) waiver and the entry
of a new decision.
CHARGE:

Order: Act of 1952—Section 241(a)(4) (8 U.S.C. 1251(a)(4)j—After entry, convicted of
two crimes involving moral turpitude not arising out of a single
scheme of criminal misconduct.
ON BEHALF OF RESPONDENT: Peter A. Schey, Esquire
3040 Imperial Avenue
San Diego, California 92102
BY: Milhollan, Chairman; 'Wilson, Torrington, Maniatis, and Appleman, Board Members

This is an appeal From an order of an immigration judge dated June
16, 1976, which found the respondent deportable as charged under

118

Interim Decision #2559
241(a)(4) of the Immigration and Nationality Act as an alien
who, after entry, had been convicted of two crimes involving moral
turpitude not arising out of a single scheme of criminal misconduct. He
found the respondent ineligible for any form of discretionary relief. The
respondent has appealed from that decision. The record will be remanded.
The respondent, a native and citizen of Mexico, was admitted to the
United States for permanent residence on July 1, 1964. On May 19,
section

1976, the respondent appeared before the immigration judge and was

granted a continuance until Tune 16, 1976. On that date the respondent
appeared for the hearing accompanied by counsel. His request for a
second continuance was denied.
Counsel contends on appeal that the immigration judge violated the
regulations and the respondent's rights of equal protection and due
process when he denied the respondent's request for a second continuance. He states that he was not able to meet with his client personally or review the Order to Show Cause nor had he received copies of the
convictions upon which deportation was based until the morning of the
hearing.
The regulations provide that a continuance may

be granted in the
immigration judge's discretion if good cause is shown. 8 C.F. R. 242.13.
A decision to deny a continuance will not be overturned on appeal unless
it appears that the respondent was deprived of a full and fair hearing.
Matter of Namio, Interim Decision 2221 (BIA 1973).
At the time of the initial hearing on May 19, 1976, the respondent had
already obtained counsel, but he was granted a continuance to prepare
for the hearing. The record does not indicate that the respondent was
prevented from presenting evidence or testimony. See Olvera v. 1NS,
504 F.2d 1372 (6 Cir. 1974); Moutsos v. Shaughnessy, 149 F. Supp. 116

(S.D. N.Y. 1957). We conclude that the immigration judge properly
denied the motion for a continuance.
As proof of alienage, the Service introduced into evidence a 1964 visa
(Ex. 3) containing a photograph allegedly bearing a resemblance to the
respondent and a name identical to his. The respondent admitted at the
hearing that the visa related to him and that it correctly listed his
birthplace as Mexico (Tr. pp. 8-9).

Once birth in a foreign country is established, there is a presumption
of alienage and the respondent has the burden of going forward with the
evidence to establish a claim to United States citizenship. Wisidis v.
Holland, 245 F.2d 812 (3 Cir. 1957); Matter of Vergara, Interim Decision 2408 (BIA 1975); Matter of Tijerina-Villareal, 13 I. & N. Dee. 327
(BIA 1969). The respondent refused to answer when asked by the
immigration judge if he were a United States citizen (Tr. p. 9). We note
the argument that the respondent's failure to testify was made the basis
119

Interim Decision #2559
of an adverse inference. It has been clearly established that the respondent was born in Mexico and became a resident alien in the United
States in 1964. In effect, we are asked to indulge a presumption that in
the intervening time he became a United States citizen. This we refuse
to do. He has made no offer in this connection. Once alienage is established, it is presumed to continue absent countervailing evidence.' Farrell v. United States, 381 F.2d 368 (9 Cir_ 1967), cert. denied, 389 U.S.
963 (1967). U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923). We
conclude that the Service met its burden of proving the alienage of the
respondent.
The record contains certified copies of judicial documents relating to
convictions for oral sex perversion under section 288a of the California
Penal Code (Ex. 4) and for burglary with intent to commit theft under
section 459 of the California Penal Code (Ex. 5). Burglary with intent to
commit theft is a crime involving moral turpitude. Matter of L—, 6 I. &
N. Dec. 666 (BIA 1955); Matter of Z—, 5 I. & N. Dec. 383 (BIA 1953).
The crime of oral sex perversion as defined in section 288a 2 is similar to
other crimes which we have held to involve moral turpitude. See Matter
of K — , 3 T _ &
Th.r. 575 (BIA 1949) (solicitation to commit sodomy);
Matter of A—, 3 I. & N. Dee. 168 (BIA 1948) (adultery, lewdness). See
also Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972) (consensual
sodomy).
' Counsel relies on Sint v. INS, 500 F.24 120 (1 Cir. 1974) for the proposition that the
Government must prove that the respondent is currently an alien. In that case, the
Second Circuit held that an admission of foreign citizenship made by the respondent four
years prior to the deportation hearing did not, of itself, constitute dear, convincing, and
unequivocal evidence of alienage for the purpose of determining deportability. The court
held that the Service must demonstrate that the respondent remained an alien during the
period of time at issue. We are not persuaded by Sint to depart from the well-established
rule that once the Service establishes birth in a foreign country, the respondent must
come forward with evidence of a claim to United States citizenship. Furthermore, Farrell
v. United States, infra, would control here since this case arises in the Ninth Circuit.
2 Section 288a provides that:
Any person participating in an act of copulating the mouth of one person with the
sexual organ of another is punishable by imprisonment in the state prison not to exceed
15 years or by imprisonment in the county jail not to exceed one year provided,
however, whenever any person is found guilty of the offense specified herein, and it is
charged and admitted or found to be true that he is more than 10 years older than his
coparticipant in such an act, which coparticipant is under the age of 14, or that he has
compelled the other's participation in such an act by force, violence, duress, menace, or
threat of great bodily harm, he shall be punished by imprisonment in the state prison for
not less than three years. The order of commitment shall expressly state whether a
person convicted thereunder is more than 10 years older than his coparticipant and
whether such coparticipant is under the age of 14_ The order shall also state whether a
person convicted hereunder has compelled copartieipation in his act by force, violence,
duress, menace, or threat of great bodily harm.
Section 288a was repealed in 1975. See 1975 California Laws ch. 71.
120

Interim Decision #2559
With respect to the conviction for oral sex perversion the information
lists the defendant as Mario Dominguez Leyva; the probation order
adds the alias Jose Mario Leyva (Ex. 4). The complaint and probation
order with respect to the burglary conviction list Jose Mario Leyva as
the defendant (Ex. 5). A copy of a document from the FBI Identification
Division (Ex. 6) was received into evidence as proof that both names

were used by the respondent.
Counsel contends that the similarity of names in the record of conviction is not sufficient to establish that the respondent wa_q the subject of
the proceedings. We disagree. Where a deportation charge is based on
documentary evidence bearing a name identical to that of the respondent, the immigration judge may reasonably infer that such evidence
relates to the respondent in the absence of evidence that it does not
relate to him. United States v. Rebore-Delgado, 467 F.2d 11 (9 Cir.
1972); Matter of Li, Interim Decision 2451 (BIA 1975); Matter of
Choung , 13 I. & N. Dec, 794 (BIA 1971).
Although the record of conviction with respect to the burglary charge
lists a different first and middle name from that of the respondent, the
last name is identical. The FBI document indicat e s that Mario

Dominiguez Leyva and Jose Mario Leyva are the same person. Furthermore, the probation order relating to the conviction for oral sex
perversion lists both names. Although the respondent denied at the
hearing that the record of conviction with respect to the burglary charge
and the FBI document relate to him (Tr. pp. 12, 13), he introduced no
affirmative evidence in support of that statement. There is sufficient
evidence in the record indicating that the name Jose Mario Leyva is an
alias used by the respondent. We therefore conclude that the Service
met its burden of showing that the record of conviction relates to the
respondent and that he has been convicted of two crimes involving
moral turpitude.
Counsel further suggests that the court records have not been
properly authenticated since it has not been shown that the attesting
officer had custody of the original as required by Rule 44 of the Federal
Rules of Evidence. The record shows that each document relating to the
record of conviction is accompanied by an entry that the copy is a true
and accurate copy of the original and is signed by a deputy of the Clerk

of the Court. Where the certification is executed with reference to the
Clerk of the Court, it will be presumed that the custody requirement
has been met. Maroon v. INS, 364 F.2d 982 (8 Cir. 1966). 3
We hold that deportability has been established by clear, convincing,
and unequivocal evidence. Woodby v. INS, 385 U.S. 276 (1966).
3 Chung Young Chain v Road, 209 F2d 857 (9 Cir. 1962). cited by counsel, is distinguishable since the method of authentication was not identified in that case and the court
concluded that there was no way to be assured of the document's authenticity.

121

Interim Decision #2559
The immigration judge held that the respondent was ineligible for any
form of discretionary relief. Since his decision, we have determined that
a lawful permanent resident with seven consecutive years of unrelinquished domicile in the United States who is charged with deportability
on the basis of one of the provisions enumerated in section 212(c) of the
Act is eligible for a waiver of inadmissibility under that section. Matter
of Silva-Ovalle, Interim Decision 2532 (BIA September 10, 1976). Inasmuch as it appeais that the respondent may qualify for discretionary
relief under section 212(c), we shall remand the record to the immigration judge so that the respondent may be afforded an opportunity to
make an application for a section 212(c) waiver.

ORDER: The record is remanded to the immigration judge for
further proceedings consistent with this opinion and the entry of a new
decision.

122