Interiin Decision #2682

MATTER OF WONG

In Visa Petition Proceedings
A-21323067
A-21323068

Decided by Board December 6,

1978

(1) Under the provisions of Article 15 of the Marriage Law of the People's Republic of
China, all children born in China are legitimate from birth. See Chin Lau v. Kiley, 563
F.2d 542 (2 Cir. 1977). Matter of Lo, 14 I. Cr N. 379 (BIA 1973), overruled.
(2) Notwithstanding the legislative legitimation of all children born in the People's Republic of China, a parent-child relationship must be proved for visa petition purposes by
suitable evidence, including a birth certificate where available.
(3) Birth records are available for persons born in the People's Republic of China and
should be presented in the case of a visa petition submitted by a father on behalf of his
child born out of wedlock, in the absence of proof of unsuccessful efforts to obtain
documents.
ON BEHALF OF PETITIONER:
Joseph S. Hertogs, Esquire
Jackson Sc Hertogs
589 Washington Street
San Francisco, California 94111

ON BEHALF OF SERVICE:

George 1ndelicato
Appellate Trial Attorney

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

The lawful permanent resident petitioner has appealed from the September 2, 1977, decision of the District Director denying the visa petitions filed on behalf of his alleged son and daughter under section
2193(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). 1
Thercodswilbman.
The petitioner is a 41 year old native and citizen of the People's
Republic of China who was admitted to the United States on June 12,
1969, as a lawful permanent resident. The beneficiary, Do Sang Wong,
the petitioner's alleged son, is a 21-year-old native and citizen of the
-

-

We note that the Notice of Appeal was filed in this case on September 19, 1977,
although the record file was not received by the Board until almost 12 months later. No
orzplanation for this delay appears in the record. It is the responsibility of the District
Director, as the administrative officer having jurisdiction over the proceedings, to
Promptly forward the record to the Board when an appeal is filed.

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Interim Decision #2682
People's Republic of China. The, beneficiary, 01 Nar Wong, the petitioner's alleged daughter, is a 23-year-old native and citizen of the
People's Republic of China_ In his decision denying the visa petitions,
the District Director found that the beneficiaries were born out of
wedlock to the petitioner and Ng Sun Chui, who were married on
February 6, 1976, when the beneficiaries were 19 and 21 years of age,
respectively. The District Director concluded that the beneficiaries
were illegitimate at birth, and were not legitimated before the age of 18
years as required by section 101(b)(1)(C) of the Act, ? U.S.C_

1101(b)(1)(C). On appeal, the petitioner claims that, under the law of the
People's Republic of China, all children are legitimate at birth and the
decision of the District Director is erroneous as a matter of law.
In Matter of Lau, unreported, file A20 122 881 (BIA October 23,
1974), the petitioner, a native and citizen of the People's Republic of
China, appealed from the denial of a visa petition filed on behalf of his
son under section 203(a)(2) of the Act. The child was alleged to be the
issue of the petitioner's relationship with one Chin Dung You to whom,
it was conceded, the petitioner was never married. We there reaffirmed
our decision in Matter of Leo , 14 I. & N. Dec. 279 (BIA 1972), that, under
Article 15 of the Marriage Law of the People's Republic of China, the
petitioner had to "legally establish" paternity to .confer immigration
benefits upon the beneficiary as his legitimate child.
On appeal to the United States District Court for the Southern
District of New York, our decision in Matter of Lau was reversed, and
the case was remanded for further proceedings. Chin Lau v. Kiley, 410
F. Supp. 221 (S.D.N.Y. W76). The District Court, in-an.opinion written
by Judge MacMahon, found that Article 15 of the Marriage Law does
not require a legal procedure for establishing legitimacy
In our view, . . . Article 15 retains a paternity suit, which will be used, as in this
country, only when the putative father denies the relationship. The Board erred,
Therefore, in finding that such a procedure is necessary to determine the legitimacy of a

child born out of wedlock.

410 F. Supp. at 224. However, Judge MacMahon specifically declined to
find that Article 15 made all children legitimate for immigration purposes. He established, instead, a test of "family relationship":
It is, therefore, obvious that preferences are not to be granted unless it is shown that
a family relationship existed. Normally this is done by showing that the beneficiary is a
legitimate or legitimated child. However, in the present context; where those terms are

meaningless, it is disingenuous to insist on such a showing. Rather, it is sufficient if a
petitioner is able to prove the existence of the requisite family relationship as a matter
of fact.

Id. On appeal to the United States Court of Appeals for the Second
Circuit, the Court of Appeals affirmed the decision of the District Court
in a decision by Judge Waterman. Chin Lau v: Kiley, 563 F.2d 542 (2
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Interim Decision #2682
Cir. 1977). However, Judge Waterman went farther than did Judge
IVIacMahon and found that all children born in the People's Republic of
China were legitimate:
It is clear to us that the first paragraph of this Article [15] makes all children born in
China "legitimate." We are not persuaded by the government's argument that the
second paragraph of Article 15, dealing with paternity, makes the establishment of
paternity by means of some legal procedure a prerequisite to a child's legitimacy. Put
quite simply, the second paragraph says only that a man may not be charged with the
cost of maintaining and educating a child until it is proved that the man is the natural
father of the child. This, we believe, is quite distinct from the first paragraph of the
Article which is a legislative grant of legitimacy to all children born in the People's
Republic of China. 563 F.2d at 550.
The Service has informed us at oral argument in the present case that
they believe the decision of the Court of Appeals for the Second Circuit
in Chin Lau v. Kiley is applicable to the facts herein. We find the
reasoning of Judge Waterxnan's decision persuasive, and we find that
the decision correctly interprets the applicable Chinese law. We withdraw, therefore, from the contrary position expressed by this Bo and in
Natter of Lau and Matter of Lo, supra. We ennelnrie that, under the
provisions of Article 15 of the Marriage Law of the People's Republic of
China, all children born in China are legitimate from birth. Accordingly,
the District Director's contrary conclusion in this case is erroneous, and
will be reversed.

However, the issue of proving the parent-child relationship still remains for our decision. In this regard, the records before us for review
contain the following:
(1) a record of a sworn statement, dated November 11, 1976, by Lin Tat. Wong
concerning his relationship with Ng Sun Tsui and the beneficiaries;
(2) the results of a blood test performed on the petitioner on November 11, 1976;

(3) photographs of the petitioner with his wife and the beneficiaries, allegedly taken
between 1955 and 1976;
(4) the visa petition filed on behalf of the present petitioner in 1967, in which he names
the beneficiaries herein as his illegitimate children;

(5) a statutory declaration completed by the petitioner in 1968 in Hong Kong, in which
he names the beneficiaries herein as his children; and
(6) the marriage certificate of the petitioner and Ng Sun Tsui, dated February 6, 1976.

'We note that a visa petition submitted by a father on behalf of his child
ranist be accompanied by the birth certificate of the child. 8 C_ F. R04.2(c)(3). It appears that birth records are available from the People's
Republic of China, see vol.. 9, Foreign Affairs Manual, Appendix B,
"China, People's Republic Of," although they may be, at times, difficult
t 4c, obtain. Id. However, the Service may require proof of unsuccessful
ftfforts to obtain documents claimed to be unavailable, as well as the

S-ubmission of additional evidence, including blood tests. See 8 C. F.R648

Interim Decision #2682
103.2(b)(1); see generally, Matter of Lau, Interim Decision 2558 (BIA
1976); Matter of Ng, 12 I. & N. Dec. 27 (BIA 1966).
The petitioner has also filed visa petitions on behalf of his wife and a
third child, Yee Nar Wong. It appears that both of these petitions have
been approved by the District Director. 2 However, these records are
not before us, and we cannot speculate as to the type or quantum of
evidence contained in those records that led to the approval of the visa
petition filed on behalf of Yee Nar Wong. Counsel for the petitioner
indicates in his brief on appeal that a thorough investigation was conducted concerning the petitioner's relationship to these beneficiaries at
the time of the issuance of a second-preference visa to the petitioner in
1969. However, not all of the evidence claimed by the petitioner to have
been submitted in connection with that proceeding has been made part
of the record before us. Specifically, the petitioner Maims to have submitted statements of both he and his father, letters, and facts concerning his trips to China.
We conclude that the record should be remanded to the District
Director for further proceedings consistent with the foregoing opinion.
On remand, the petitioner should be given an opportunity to submit any
additional evidence he may have in support of these petitions 3 or to
explain why no further evidence is available. The District Director
,

should then render a new decision and serve it upon the interested

parties in accordance with Matter of Li Ganoza, Interim Decision 2475
(BIA 1976) and Matter of To, 14 I. & N. Dec. 679 (BIA 1974),
ORDER: The record is remanded.
FURTHER ORDER: In the event of a decision which is adverse to
the petitioner, the record should be certified to the Board for review.

2 Yee Nar Wong was under the age of 18 years when the petitioner married his present
wife. Apparently, the District Director found that she was the petitioner's legitimated
child.
' The petitioner's wife, if admitted as a lawful permanent resident, may file a visa
petition on behalf of the beneficiaries If evidence to support her relationship to them h
more readily available to her than to her husband. Any questions in this regard should be
addressed to the Immigration and Naturalization Service.

649


Interim Decision Ynitiu

MATTER OF MARTINEZ
In Deportation Proceedings
A-84691362

Decided by Board April 25, 1.979
(1) Charge of entry without inspection and being a trafficker in marihuana was not
sustained where the immigration judge relied solely upon the transcript of the hearing
of the alien's brother to provide evidence of deportability and to link the alien to the
Record of Deportable Alien (Form 1-213) offered into evidence, and where the alien's
deportability was not in issue at the brother's hearing and the alien was not present to
defend himself or cross-examine witnesses.
(2) The Service's motion to consolidate the appeals of an alien and his brother, who were
tried at separate hearings, denied because the alien was denied a fair hearing when,
over the respondent's objections, the immigration judge accepted into evidence the
transcript of the brother's hearing at which the alien was not present and had not been
able to defend himself or cross-examine witnesses.
(I) The record will be remanded fora hearing de novo where the only evidence establishing
deportability is contained in a transcript of a hearing at which the alien was nut present
and could not defend himself or cross-examine witnesses.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)1--Excludable at time of entry
(section 212(a)(23) of the Act, S U.S.C. 1182(a)(23))—illicit
trafficker of marihuana
ON BEHALF OF SERVICE:
E. 11L Trominski
Trial Attorney

ON BEHALF OF RESPONDENT:
Joseph J. Rey, Jr., Esquire
100 N. Florence
El Paso, Texas 79901

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

In a decision dated December 8, 1978, an immigration judge found the
respondent deportable as charged and ordered him deported. The respondent has appealed from this decision. The Service at the same time
also moves to consolidate this appeal with that of the respondent's
brother. The Service's motion will be denied. The record will be remanded to the immigration judge for a hearing de novo.
The respondent is a 32 -year - old native and citizen of Mexico, and a
lawful permanent resident of the United States. On April 25, 1976, the
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Interim Decision #2700
respondent and two other aliens were arrested by Service authorities
near El Paso, Texas, for having entered the United States without
inspection. On October 12, 1978, an Order to Show Cause was issued,
charging the respondent with deportability under section 241(a)(2) of
the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as one who
had entered without inspection, and under section 241(a)(1) of the Act, 8
U.S.C. 1251(a)(1): one excludable at time of entry under section
212(a)(23) of the Act, 8 U.S.C. 1182(a)(23), as a trafficker in marihuana.
At the deportation hearing, with benefit of counsel, the respondent
denied that he had entered without inspection and also denied that he

had transported a suitcase containing marihuana across the Rio Grande
River into the United States. The immigration judge found that the
respondent had entered without inspection and that he was a trafficker
in marihuana, and that these findings were supported by clear, convincing, and unequivocal evidence. He ordered the respondent deported.
On appeal, the respondent contends that the immigration judge accepted hearsay evidence and that he abused his discretion. He claims
that the only evidence of deportability presented was the record of the
deportation hearing of the respondent's brother. He further contends
that he was deprived of due process because he had no opportunity to be

confronted with the evidence against him and because he was refused
the right of cross-examination and confrontation of witnesses.
The evidence relied on by the immigration judge WAS in fact enntairwl
in the transcript of the deportation hearing for the respondent's
brother, who was arrested the same night and under the same circumstances as the respondent, and in the Record of Deportable Alien
(Form 1-213) completed the night the respondent was arrested. The
immigration judge found that the testimony given at the hearing of the
respondent's brother was sufficient to prove that the respondent had
crossed the border without inspection, carrying a suitcase of marihuana,

and that the testimony was sufficient to link the respondent to the Form
1-213 offered into evidence at the respondent's hearing.
The problem with these conclusions is that at the brother's hearing,
the respondent's actions were not in issue. Al.,hough there were numerous references to the respondent, most of them were in the context of
his brother's attempt to defend himself against his own charges, not in
the context of the respondent's defense to the charges brought against
him at his own hearing. We cannot therefore agree that the evidence

developed at the brother's hearing establishes the present respondent's
deportability. He was not there to defend himself. To incorporate that
testimony by reference would be to deprive him of his right to croesexamine the witnesses against him, the objection raised by the respondent at both the hearing and on appeal.
For reasons implicit in the preceding discussion, we consider the
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Interim Decision #2700
Service's motion for consolidation of the appeals of both individuals
inappropriate. The case cited in support of consolidation is Matter of
Taerghodsi, Interim Decision 2596 (BIA 1977). That case concerns the
authority of an immigration judge at the hearing level to consolidate
cases under 8 C.F.R. 242.8(a). This is an entirely different setting.
Regardless of the reason the two respondents were not originally tried
at a joint hearing, it is too late to bring their cases together on appeal.
To do so now would b?, to violate the respondent's right to due process,
as it would be necegsary to assume that he had already had a fair
hearing on the issue of his deportability. Vie have not found this to be
the case.
For these reasons, then, the Services motion to consolidate the
appeals will be denied and the record will remanded to the immigration judge for a hearing de nova.
ORDER: The record is remanded to the immigration judge for a
hearing de novo.

725


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Interim Decision #3888

Matter of Jing WU, Respondent
Decided April 13, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Assault with a deadly weapon or force likely to produce great bodily injury under
California law is categorically a crime involving moral turpitude. Ceron v. Holder, 747
F.3d 773 (9th Cir. 2014) (en banc), distinguished.
FOR RESPONDENT: Lien L. Uy, Esquire, Oakland, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Deborah F. Ho, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MALPHRUS, Board Member:

In a decision dated January 16, 2015, an Immigration Judge terminated
the respondent’s removal proceedings. The Department of Homeland
Security (“DHS”) filed a motion to reconsider, which the Immigration
Judge denied on July 17, 2015. The DHS has appealed from that decision.
The appeal will be sustained, the removal proceedings will be reinstated,
and the record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of China who was admitted to the
United States as a lawful permanent resident on May 2, 2008. On April 20,
2012, he was convicted of assault in violation of section 245(a)(1) of the
California Penal Code. Based on this conviction, the DHS initiated
removal proceedings, charging that the respondent is removable under
section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(A)(i) (2012), as an alien who has been convicted of a crime
involving moral turpitude committed within 5 years after the date of
admission, for which a sentence of 1 year or longer may be imposed. The
Immigration Judge determined that the respondent’s conviction did not
render him removable as charged and she terminated the proceedings.
On appeal, the DHS contends that because section 245(a)(1) of the
California Penal Code categorically defines a crime involving moral
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Interim Decision #3888

turpitude under the Act, the Immigration Judge improperly terminated the
proceedings and denied its motion to reconsider. 1 We review this legal
question de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016). For the following
reasons, we conclude that the respondent’s assault offense in violation of
section 245(a)(1) is categorically a crime involving moral turpitude.

II. ANALYSIS
“The term ‘moral turpitude’ generally refers to conduct that is
‘inherently base, vile, or depraved, and contrary to the accepted rules of
morality and the duties owed between persons or to society in general.’”
Matter of Silva-Trevino, 26 I&N Dec. 826, 833 (BIA 2016) (citation
omitted). “To involve moral turpitude, a crime requires two essential
elements: reprehensible conduct and a culpable mental state.” Id. at 834.
The parties agree that at the relevant time, section 245(a)(1) of the
California Penal Code punished
[a]ny person who commits an assault upon the person of another with a deadly
weapon or instrument other than a firearm or by any means of force likely to
produce great bodily injury. 2

Both we and the United States Court of Appeals for the Ninth Circuit, in
whose jurisdiction this case arises, long ago addressed the question whether
assault with a deadly weapon under California law was a crime involving
moral turpitude and concluded that it was. See Gonzales v. Barber, 207
F.2d 398, 400 (9th Cir. 1953), aff’d on other grounds, 347 U.S. 637 (1954);
1

It is undisputed that that the respondent’s offense was committed within 5 years of his
date of admission and that his crime is one for which a sentence of 1 year or longer may
be imposed. See Ceron v. Holder, 747 F.3d 773, 777–78 (9th Cir. 2014) (en banc).
Moreover, since we ultimately conclude that the respondent’s conviction involves moral
turpitude, we need not reach the DHS’s argument that the respondent is removable under
section 237(a)(2)(E)(i) of the Act as an alien convicted of a crime of domestic violence.
2
The portion of section 245(a)(1) pertaining to “force likely to produce great bodily
injury” has since been removed from this provision and renumbered as section 245(a)(4).
See Cal. Penal Code § 245(a) (West 2017). The record reflects that the respondent’s
sentence was enhanced pursuant to section 12022.7(a) of the California Penal Code,
which applies to “[a]ny person who personally inflicts great bodily injury on any person
other than an accomplice in the commission of a felony or attempted felony.” However,
because we conclude that assault under section 245(a)(1) is categorically a crime
involving moral turpitude, we need not discuss the effect, if any, that this enhancement
may have on the moral turpitude inquiry. See generally Matter of Martinez-Zapata,
24 I&N Dec. 424, 426 (BIA 2007) (regarding the treatment of a sentencing enhancement
as an element of the underlying offense).

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Interim Decision #3888

Matter of G-R-, 2 I&N Dec. 733, 740 (BIA 1946, A.G. 1947). However,
the Ninth Circuit has recently explained that “[t]he development of both
federal law and state law over the intervening six decades . . . has
undermined the reasoning of those cases.” Ceron v. Holder, 747 F.3d 773,
780 (9th Cir. 2014) (en banc). Specifically, the court in Ceron concluded
that the reasoning employed in Barber and Matter of G-R- “runs counter to
today’s categorical analysis” as embodied in Taylor v. United States, 495
U.S. 575 (1990). Id. The court additionally stated that “[s]tate law
developments, too, have undermined the reasoning of” Barber and Matter
of G-R- because the Ninth Circuit and the Board did not have the benefit of
People v. Williams, 29 P.3d 197 (Cal. 2001), which “only recently defined
with precision the requisite mental state for assault” under section
245(a)(1). Ceron, 747 F.3d at 781.
Because we are entitled to deference with respect to whether a particular
offense involves moral turpitude, the court in Ceron remanded that case
so that we could “determine in the first instance whether California
Penal Code section 245(a)(1) categorically constitutes a crime involving
moral turpitude” under the framework set forth in Taylor. Id. at 785
(citing Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009)
(en banc)). The court additionally requested that we clarify on remand
“how [to] assess [whether] a statute—like California Penal Code section
245(a)(1)—that requires knowledge of the relevant facts but does not
require subjective appreciation of the ordinary consequences of those facts”
involves moral turpitude. Id. at 784. We take the opportunity in this case
to clarify our analysis in this regard and to address the issues raised in
Ceron.
We begin our analysis by employing the categorical approach, in which
we examine whether the elements defining section 245(a)(1) “fit[] within
the generic definition of a crime involving moral turpitude.” Matter of
Silva-Trevino, 26 I&N Dec. at 831 (applying the framework outlined in
Taylor in the moral turpitude context); see also Ceron, 747 F.3d at 778–81.
The categorical approach requires us to focus on the elements
defining the offense of conviction—rather than the facts underlying the
respondent’s particular violation—and the minimum conduct that has a
“realistic probability” of being prosecuted under those elements. See, e.g.,
Hernandez-Gonzalez v. Holder, 778 F.3d 793, 801 (9th Cir. 2015) (stating
that a State statute does not categorically define a crime involving moral
turpitude if there is a “realistic probability” that the elements of that statute
would be applied “to conduct that falls beyond the scope of the generic
federal offense”).
It is well established that a simple assault or battery that only
requires offensive touching or threatened offensive touching of another
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Interim Decision #3888

committed with general intent that does not result in serious bodily
harm is not considered to involve moral turpitude. 3 See, e.g., Matter of
Ahortalejo-Guzman, 25 I&N Dec. 465, 466 (BIA 2011); Matter of Fualaau,
21 I&N Dec. 475, 477 (BIA 1996). However, this general rule does not
apply where a statute contains elements that deviate from those associated
with simple assault and battery and “involves some aggravating factor that
indicates the perpetrator’s moral depravity.” Matter of Ahortalejo-Guzman,
25 I&N Dec. at 466 (emphasis added). In assessing whether an alien
convicted under such a statute has committed a crime involving moral
turpitude, we weigh the level of danger posed by the perpetrator’s conduct
along with his or her degree of mental culpability in committing that
conduct. See Matter of Danesh, 19 I&N Dec. 669, 673 (BIA 1988).
In this way, we have determined that an assault statute that makes it
unlawful for a perpetrator to cause physical injury to another while
possessing the specific intent to inflict such harm categorically defines a
crime involving moral turpitude. See Matter of Solon, 24 I&N Dec. 239,
243 (BIA 2007). 4 Conversely, we have held that an assault statute
prohibiting a perpetrator from causing injury to another “with criminal
negligence” does not define a crime involving moral turpitude. See Matter
of Perez-Contreras, 20 I&N Dec. 615, 618–19 (BIA 1992) (“Since there
was no intent required for conviction, nor any conscious disregard of a
substantial and unjustifiable risk, we find no moral turpitude inherent in
the statute.”). Most importantly for purposes of resolving this case, we
have concluded that assault and battery offenses that require a state of mind
falling between specific intent and criminal negligence—for instance,
general intent and recklessness—are morally turpitudinous if they
“necessarily involve[] aggravating factors that significantly increase[] their
culpability” relative to simple assault. Matter of Sanudo, 23 I&N Dec. 968,
971 (BIA 2006) (emphasis added).
One such aggravating factor is the use of a deadly or dangerous weapon
or instrument—conduct that magnifies the danger posed by the perpetrator
and demonstrates his or her heightened propensity for violence and
indifference to human life. See Matter of Medina, 15 I&N Dec. 611,
612–14 (BIA 1976), aff’d sub nom. Medina-Luna v. INS, 547 F.2d 1171
3

The meaning of the phrase “general intent” varies considerably across jurisdictions
and does not always denote one particular state of mind. In its most generic sense,
general intent refers to a mental state in which the perpetrator intentionally engages in
conduct, without regard to whether he or she intends that conduct to achieve a particular
result. See Black’s Law Dictionary 825–26 (8th ed. 2004).
4
The phrase “specific intent” connotes a mental state in which the perpetrator willfully
commits a forbidden act with the conscious purpose of bringing about a particular result.
See Black’s Law Dictionary, supra, at 826.

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(7th Cir. 1977) (unpublished table decision); see also Weedin v. Tayokichi
Yamada, 4 F.2d 455, 457 (9th Cir. 1925) (stating that “assault with a deadly
weapon, . . . where the circumstances of the assault show a willful,
malignant, and abandoned heart, . . . involves moral turpitude beyond any
question”); Matter of O-, 3 I&N Dec. 193, 196–98 (BIA 1948) (holding
that assault with a deadly weapon under Connecticut law is a crime
involving moral turpitude). In Medina, we concluded that a conviction for
aggravated assault with a deadly weapon categorically involved moral
turpitude, despite the fact that the Illinois statute at issue could be violated
with a mental state of recklessness, because although the “statute may not
require a specific intent to cause a particular harm, the violator must show a
willingness to commit the act in disregard of the perceived risk.” Matter of
Medina, 15 I&N Dec. at 614 (emphasis added).
With respect to section 245(a)(1), the relevant jury instructions indicate
that a violation of this provision requires proof of the following elements:
(1) the defendant did an act that by its nature would directly and probably
result in the application of force to a person, using either (a) a deadly
weapon or instrument, or (b) force likely to produce great bodily injury to
another; (2) the defendant did the act willfully; and (3) when the defendant
acted, he or she (a) was aware of facts that would lead a reasonable person
to realize that his or her act by its nature would directly and probably result
in the application of force to someone and (b) had the present ability to
apply such force. Judicial Council of California Criminal Jury Instruction
875 (Oct. 2016).
In this regard, section 245(a)(1) is different from the statute in Medina
because it does not require that a perpetrator subjectively perceive the risk
posed by his or her conduct. See Ceron, 747 F.3d at 784. We therefore
must determine whether a violation of section 245(a)(1) necessarily
requires a culpable mental state that falls within the definition of a crime
involving moral turpitude. For the below reasons, we conclude that it does.
California has variously defined “assault” as an “unlawful attempt . . . to
commit a violent injury on the person of another,” Cal. Penal Code § 240
(West 2017) (emphasis added), and as an “incipient or inchoate battery,”
People v. Colantuono, 865 P.2d 704, 710 (Cal. 1994), superseded by
statute on other grounds as recognized in People v. Conley, 373 P.3d 435,
441 n.4 (Cal. 2016). Given these divergent definitions, it was unclear
whether California assault entailed a specific intent to commit battery. The
California Supreme Court has since clarified that “attempt” for purposes
of “assault” does not entail specific intent—rather, it refers to “an intent
to commit some act which would be indictable, if done, either from
its own character or that of its natural and probable consequences.”

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Interim Decision #3888

Williams, 29 P.3d at 202 (citation omitted). 5 In other words, according to
the California Supreme Court,
[A] defendant guilty of assault must be aware of the facts that would lead a
reasonable person to realize that a battery would directly, naturally and probably
result from his conduct. He may not be convicted based on facts he did not know
but should have known. He, however, need not be subjectively aware of the risk
that a battery might occur.
In adopting this knowledge requirement, we do not disturb our previous
holdings. Assault is still a general intent crime . . . . Likewise, mere recklessness
or criminal negligence is still not enough because a jury cannot find a defendant
guilty of assault based on facts he should have known but did not know.

Id. (emphases added) (footnotes and citations omitted).
The Ninth Circuit has addressed the implications of Williams in several
criminal sentencing cases in which the issue was whether the mental state
under section 245(a)(1) is sufficiently “intentional” to justify treating a
conviction for California assault as a crime of violence under 18 U.S.C.
§ 16(a) (2006). 6 See United States v. Jimenez-Arzate, 781 F.3d 1062,
1064–65 (9th Cir.) (per curiam), cert. denied, 136 S. Ct. 120 (2015)
(mem.); United States v. Grajeda, 581 F.3d 1186, 1193–97 (9th Cir.
2009); 7 United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir. 2009).
While the “use of physical force” issue differs from the question presented
here, these issues are closely related in one key respect—they both focus on
the level of “intent” with which an assault under section 245(a)(1) must be
committed.
The defendant in Grajeda asserted that a violation of section 245(a)(1)
does not “require proof of sufficiently intentional conduct to qualify” as a
crime of violence because, pursuant to Williams, “California’s definition of
5

The court considered different possible definitions of “attempt” under section 240,
including one that would have required a specific intent to commit battery. See Williams,
29 P.3d at 201–02. While the court rejected that possibility, the definition it ultimately
adopted requires a close proximity between the conduct and resulting battery. See id. at
202 (stating that an assault only occurs where “[t]he next movement would, at least to all
appearance, complete the battery” (citation omitted)). As a consequence, the California
Supreme Court concluded that “a specific intent to injure is not an element of assault
because the assaultive act, by its nature, subsumes such an intent.” Id.
6
Section 16(a) defines a crime of violence as an offense having “as an element the
use . . . of physical force.” Section 2L1.2 of the United States Sentencing Guidelines is
identical to § 16(a) in all relevant respects. United States v. Grajeda, 581 F.3d 1186,
1190, 1197 (9th Cir. 2009).
7
Grajeda, 581 F.3d at 1191–92 & n.5, addressed the same version of section 245(a)(1)
that is at issue here.

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assault requires merely criminally negligent conduct, and thus does not
have as an element the intentional use of force.” Grajeda, 581 F.3d at
1192, 1194 (emphasis added). 8
The Ninth Circuit rejected the defendant’s position, stating that the
California Supreme Court’s decision in Williams reflects that
section 245(a)(1) requires proof of an intentional “violent act” with a deadly
weapon or instrument or with force likely to cause serious bodily injury that “by its
nature will directly and immediately cause” the application of physical force to
another. While this formulation of the necessary mens rea does not fit neatly with
the standard articulated in Fernandez-Ruiz, it satisfies the concerns animating
Leocal and Fernandez-Ruiz that the proscribed conduct be “violent” and “active,”
and the use of force not merely accidental . . . .

Id. at 1195 (citation omitted). In other words, the Ninth Circuit concluded
in Grajeda that a violation of section 245(a)(1) requires a culpable mental
state greater than recklessness and criminal negligence. 9
We therefore hold that a violation of section 245(a)(1) necessarily
involves a culpable mental state that falls within the definition of a crime
involving moral turpitude. Like the Illinois statute at issue in Medina,
section 245(a)(1) requires that a perpetrator willfully engage in dangerous
conduct, by means of either an object employed in a manner likely to cause
great bodily injury or force that is, in and of itself, likely to cause such
an injury. Section 245(a)(1) further requires that a perpetrator have
knowledge, while not of the risk of causing such injury, of the facts that
make such an injury likely. With respect to the question whether conduct is
morally turpitudinous, the result should be no different for a person who
willfully commits such dangerous conduct with knowledge of all the facts
that make it dangerous than it is for one who commits the conduct with the
knowledge that it is dangerous. 10
8

The Supreme Court has held that the phrase “use of force” in the definition of a crime
of violence requires proof of active employment of force and cannot be satisfied by
negligent or accidental conduct. Leocal v. Ashcroft, 543 U.S. 1, 9–11 (2004). Extending
this holding, the Ninth Circuit has stated that “neither recklessness nor gross negligence
is a sufficient mens rea to establish that a conviction is for a crime of violence.”
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006) (en banc).
9
More recently, in Jimenez-Arzate, 781 F.3d at 1064–65, the Ninth Circuit declined to
reconsider Grajeda and concluded that assault under section 245(a)(1) cannot be
committed with a mental state of mere recklessness. In that decision, the court
additionally held that “Ceron does not clearly indicate a different interpretation of the
mens rea requirement for § 245(a)(1) than that set forth in Grajeda.” Id. at 1065.
10
We would reach a different conclusion if faced with a statute, such as one
criminalizing driving under the influence (“DUI”), that does not require knowledge that
(continued . . .)

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Interim Decision #3888

We additionally hold that a violation of section 245(a)(1) necessarily
involves an aggravating factor that renders such an offense reprehensible.
Both portions of the statute require that a perpetrator willfully use either a
deadly weapon or instrument, 11 or force likely to produce great bodily
injury, while being aware of the facts that make it likely that such conduct
will cause, at a minimum, great bodily injury to another person. See People
v. Aguilar, 945 P.2d 1204, 1213 (Cal. 1997) (explaining that a jury must
find whether a violator’s conduct “had the capability and probability of
inflicting great bodily injury under either a ‘deadly weapon’ theory or a
‘force likely’ theory. The jury’s analytical process [is] the same in either
event.”); People v. Parrish, 217 Cal. Rptr. 700, 704 (Cal. Ct. App. 1985)
(“The focus [of section 245(a)] is on force likely to produce great bodily
injury.”). Such conduct “reflects a level of immorality that is greater than
that associated with a simple offensive touching.” Matter of Sanudo,
23 I&N Dec. at 971; see also Matter of Kim, 26 I&N Dec. 912, 918
(BIA 2017) (noting that California defines “great bodily injury” as a
“significant or substantial injury” (citation omitted)).
Weighing the dangerous conduct necessarily involved in a violation of
section 245(a)(1) along with the culpable mental state needed to commit
such a violation, we conclude that an assault under this statute is no less
base, vile, and depraved than the reckless aggravated assault offense we
deemed turpitudinous in Medina. See Matter of Ahortalejo-Guzman,
25 I&N Dec. at 466. It is this “building together of elements” that reflects
that the conduct criminalized under section 245(a)(1) “deviates further and
further from the private and social duties that persons owe to one another
and to society in general” and categorically falls within the definition of a
crime involving moral turpitude. Matter of Lopez-Meza, 22 I&N Dec.
1188, 1196 (BIA 1999).
Finally, while we acknowledge that the unique mental state embodied in
section 245(a)(1) does not correspond directly with the culpable mental
_______________________________

the conduct is itself dangerous or of the facts that make the proscribed conduct dangerous.
We have previously held that a DUI will only involve moral turpitude if it necessarily
involves an “aggravating factor,” such as a “culpable mental state” that demonstrates that
the perpetrator “knew, at the time that he was driving while under the influence of
alcohol, that his driver’s license had been suspended and that he was not permitted to
drive.” Matter of Torres-Varela, 23 I&N Dec. 78, 85 (BIA 2001) (citing Matter of
Lopez-Meza, 22 I&N Dec. 1188, 1196 (BIA 1999)); see also Marmolejo-Campos, 558
F.3d at 914–16 (deferring to our reasoning in Torres-Varela and Lopez-Meza).
11
See People v. Aguilar, 945 P.2d 1204, 1207 (Cal. 1997) (stating that, for purposes of
section 245(a)(1), a deadly weapon or instrument is “any object, instrument, or weapon
which is used in such a manner as to be capable of producing and likely to produce, death
or great bodily injury” (citation omitted)).

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states we discussed in our prior decisions analyzing whether an assault
or battery offense involves moral turpitude, we are not aware of any cases
in which this unique mental state has led to the prosecution of an
individual for conduct that is not turpitudinous. Thus, there is no realistic
probability that section 245(a)(1) will be used to prosecute such conduct.
See Hernandez-Gonzalez, 778 F.3d at 801.

III. CONCLUSION
Having considered the issues raised by the Ninth Circuit in Ceron, we
conclude that the respondent’s conviction for assault under section
245(a)(1) of the California Penal Code renders him removable under
section 237(a)(2)(A)(i) of the Act as an alien who has been convicted of
a crime involving moral turpitude committed within 5 years after the
date of admission for which a sentence of 1 year or longer may be imposed.
The Immigration Judge therefore improperly terminated the removal
proceedings and denied the DHS’s motion to reconsider. The respondent
has indicated that he does not wish to seek relief from removal. Since we
cannot enter an order of removal in the first instance in this jurisdiction, we
will remand the record solely for the entry of such an order. See Noriega
Lopez v. Ashcroft, 335 F.3d 874, 883−85 (9th Cir. 2003). Accordingly, the
DHS’s appeal will be sustained, the removal proceedings will be reinstated,
and the record will be remanded.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the
removal proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

16


MAI Jr..a OF C

In DEPORTATION Proceedings
A-3415533
Decided by Board February 29, 1960

of collateral
estoppel by judgment Finding of membership in denaturalization proceedings held conclusive in subsequent deportation proceedings Original entry
as basis for deportation charge under section 241(a)(6) of 1952 act.

Subversive organization—Evidence of membership—Doctrine
—

—

(1) Where one of the principal Issues in a denaturalization suit was whether
respondent had been a member of the Communist Party from 1930 to 1936
and this Issue was litigated and was essential to the court's determination
which resulted in a Judgment revoking citizenship; held, under doctrine of
collateral estoppel the finding by the court in the denaturalization suit was
conclusive in the subsequent deportation proceeding involving charge based
upon like period of membership in the Communist Party.
(2) Where respondent lawfully entered the United States for permanent residence in 1923, reentered illegally following a trip to Moscow in 1932, and
last entered in 1945 as a member of the armed forces, deportability under
section 241(a) (6) of the act as a member of the Communist Party after
entry is established with relation to his 1923 entry. Bonetti v. Rogers, 356
'U.S. 691, distinguished.
CHARGE:
Order: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (0)]—After entry, member of Communist Party of United States.
BEFORE THE BOARD

Discussion : On April 6, 1959, a special inquiry officer directed the
respondent's deportation. Upon his appeal, we entered an order on
October 2T, 1950, directing that the hearing be reopened and that
the case be remanded to the Service. The matter is now before us

on motion of the Service dated December 8, 1959, requesting reconsideration of our order of October 27, 1959.
The respondent is a 53-year-old male, native and last a citizen of
Russia. He entered the United States on January 1, 1923, and apparently was lawfully admitted for permanent residence at that time.
He departed for Moscow, U.S.S.R., in November 1932, and thereafter illegally reentered the United States. He also arrived in the
United States on October 4, 1945. following service outside this coun577

try with the United States Army. His present marital status is not
shown by the record. The special inquiry officer found that the
respondent was a member of the Communist Party of the United
States from about 1930 to about 1937, and in 1946. The issues raised
by the motion are whether our previous order should be withdrawn
and, if so, whether the respondent is deportable on the charge stated
above. For the reasons hereinafter stated, we will grant the motion
of the Service and dismiss the respondent's appeal from the order
of deportation.
On May 14, 1943, while serving in the United States Army, the
respondent was naturalized as a citizen of the United States under
the provisions of section 701 of the Nationality Act of 1940, as
amended [56 Stat. 182; 8 U.S.C. 1001, 1940 ed. Supp.]. His naturalization was revoked on June 27, 1956, by a decree of the United
States District Court for the District of Maryland (Exh. 2). The
respondent filed an appeal from that decision in the United States
Court of Appeals for the Fourth Circuit but this was dismissed on
September 19, 1958, upon agreement between the parties (Exh. 3).
In addition, the Government introduced a copy of the court's opinion
in the denaturalization proceeding (Exh. 4) which will also be found
in the case entitled United States v. Chandler, 152 F. Supp. 169.
On the basis of the findings of fact in that opinion, the special
inquiry officer held that the respondent's deportahility had been established under the doctrine of collateral estoppel by judgment.
When we previously reviewed the record, we observed that the
respondent had said that he supposed he would answer questions and
that he had not been asked thereafter whether he had been a member

of the Communist Party. Accordingly, we directed that the hearing
be reopened to permit the respondent and the Government to present
:any pertinent evidence. In its motion, the Service takes the position
that it met its burden of proof when exhibits 2 to 4, inclusive, pertaining to the denaturalization proceedings, were received in evidence and that it was under no obligation to specifically question the
respondent concerning his Communist Party membership.
Counsel has urged that this Board should not entertain the motion
of the Service and complains that the procedure followed in this
case was unfair because the Service received notice of our decision
before he did. He also contends that the time within which he
might reply to the Service motion should have been fixed by us
rather than by the Service.
8 CFR 3.8 is the pertinent regulation concerning motions to the
Board for reopening or reconsideration. Subsection (c) thereof,
relating to eases where the Service is the moving party, provides

that it shall cause one copy to be served upon the alien. The time
for filing a reply in the respondent's case was not fixed by the Serv578

ice, but the regulation itself provides that the alien shall have a
period of 10 days from the date of service upon him of the motion
within which to submit a brief in opposition to the motion, and that
the Board, in its discretion, may extend the time within which such
brief may be submitted. The regulations do not specify any time
limitation upon the filing of a motion for reconsideration by the
Service or by counsel. In this case, counsel states that he received
the Service motion one day after he received our order of October 27,
1959. Hence, counsel was not misled into believing that the Service
acquiesced in our order.
The procedure followed here complied with the regulations. Counsel did not request any extension of the period within which he
might reply to the motion of the Service, and there is nothing in
his reply brief which would indicate that he desires an extension of
time to answer more fully the motion of the Service. He also has
not contended that the respondent was prejudiced in any manner
by the fact that counsel received our order and a copy of the Service
motion at ,about, the same time. Under the circumstances, we reject
counsel's contention that the motion of the Service for reconsideration should not be entertained.
Although counsel urged that the Board should not entertain the
motion of the Service, he did not press for reopening of the hearing
nor indicate that the respondent desired to testify. Since it is clear
that the Service wishes to have the matter adjudicated on the present record and inasmuch as we now believe that no useful purpose
would be served in reopening the hearing, we will grant the motion
for reconsideration, withdraw our previous order, and proceed to a
determination of the question of whether the respondent is deportable
on the charge stated in the order to show cause.
Under the doctrine of res judicator, a judgment on the merits in a
prior suit bars a second suit between the same parties on the same
cause of action. Where the parties are the same but the causes of
action are different, the doctrine of collateral estoppel by judgment
precludes relitigation in the second suit of issues actually litigated
and determined in the prior suit. The special inquiry officer recognized 1111t, distinction and both parties before us are agreed that this
case is to be determined under the applicable principles pertaining
to the doctrine of collateral estoppel. On the basis of this doctrine,
the Service asserts that deportability has been established while
counsel's contention is to the contrary.
Counsel contends that the judgment in the denaturalization suit
rests on alternative findings and that, no estoppel is created in such
cases. He asserts that the decision rested on four alternative grounds
but does not state what he considers these to be. He does state that
the respondent could not test, on appeal, the court's finding concern579

ing nonattachment to the principles of the Constitution "because the
judgment was clearly sustainable on one of the alternate holdings—
misrepresentation of the arrest record." Before discussing the effect
of a judgment resting on alternative grounds, two preliminary obser
vations are pertinent.
In the first place, there is considerable question whether the judgment in the respondent's case would have been clearly sustainable
on the basis of the concealment of the arrest record. This is so
because the court did not even make a definite finding as to the
materiality of the arrests.
Secondly, counsel says it is necessary that alternative findings
should not create estoppels because otherwise findings would become
conclusive although they were not capable of being appealed, and
he contends that this respondent could not appeal from the adverse
finding. In this connection, he referred us to the footnotes on pages
99 and 109 of Partmar Corporation v. Paramount Pictures Theatres
Corporation, 347 U.S. 89 (1954), and to Gelpi v. Tugwell , 123 F.2d
377 (C.C.A. 1, 1941). The footnote on page 109 of the Part/mar case
is in the dissenting opinion and may be disregarded. In the footnote on page 99, it was stated that Partmar (for whom judgment
was entered) did not appeal but could have done so, and there is the
specific statement: "It is only when a finding of law or fact is not
necessary for a decree that the prevailing party may not appeal and
the finding does not form the basis for collateral estoppel" (emphasis supplied). Obviously, this case does not help the respondent.
In the Gelpi case, the appeal was dismissed as moot but the court
stated that, since the appellant was prevented from obtaining a review of the judgment through no fault on her part, the judgment

would not become res judicata on the issues involved in any subsequent litigation upon a different cause of action.
The foregoing two cases were the only ones cited by counsel for
his theory that the respondent could not appeal from the adverse
finding. That the rule is otherwise is shown by the decisions in
Galloway v. General Motors Acceptance Corporation, 106 F.2d 466,
467 (C.C.A. 4, 1939), and Fish.gold v. Sulli/van. Drydock & Repair
Corp., 328 U.S. 275 (1946). In the first case, it was stated that the
general rule is that one may not appeal from a verdict in his favor
or from that portion of a decision which is favorable but he may
secure a review of that portion of a decision which is adverse. In
the Fishgold case, a union which had a collective bargaining agreement with Sullivan was permitted to intervene. The District Court
entered a money judgment for the petitioner. Only the union appealed. The Supreme Court held that the union had an appealable
interest because there had been a construction of the collective bargaining agreement which had resulted in an adjudication adverse
580

to the union. Accordingly, the judicial authority is contrary to
.counsel's position that the respondent could not appeal from the
adverse finding that he was a member of the Communist Party. As
a matter of fact, the respondent did appeal although the appeal
was subsequently dismissed by agreement of the parties.
We turn now to the contention itself which is that no estoppel is
created where the judgment rests on alternative findings One matter which counsel offered in support was his quotation of a single
sentence appearing on page 307 of the decision in Fayerweather v.
Bitch, 195 U.S. 276 (1904). The sentence is as follows: "And
where the evidence is that testimony was offered at the prior trial
upon several distinct issues, the decision of any one of which would
justify the verdict or judgment, then the conclusion must be that the
prior decision is not an adjudication upon any particular issue or
issues, and the plea of ree judicata must fail." Immediately preceding this sentence, there was a statement to the effect that, when
the pleadings are general, evidenee may be given concerning the
testimony which was introduced on the trial since that may disclose
what must have been considered and determined. The judgment in
the first suit contained no findings to indicate upon what it was
based, and the case is not analogous to that of the respondent in
which the court made specific findings. When the statement quoted
by counsel is considered in context, it is clear that it relates only to
a case in which there were no findings and in which it was necessary
to produce evidence as to what testimony was introduced at the
original trial. The Supreme Court's conclusion was that although
there was not even a specific finding in the first suit, the decision

there had necessarily determined that certain releases were valid and
the point could not be relitigated in the second suit. Hence, we
believe that this decision does not support counsel's contention but
actually is opposed to his claim that the question concerning the
respondent's Communist Party membership can be relitigated.
Counsel also cited six decisions of state courts which are supposed
to hold that alternative findings do not create an estoppel. An examination of these shows that in one case the former judgment was
based on lathes and not upon the merits; in another case the jury
was not authorized to render a verdict finding both sides negligent;
and in three cases the attempt was to claim as an estoppel a fact
found in the first suit which was immaterial to that decision. The
remaining case cited by counsel was BurZen. v. Shannon, 99 Mass.
200 (1868). There, Mrs. Shannon had previously filed a libel for
divorce a mensa against Mr. Shannon. There was a general verdict
in his favor, and it was impossible to determine whether this was

because his wife had failed to prove her charges of misconduct or
whether it was because his divorce from her, previously obtained in
581

Indiana, was valid. A third party subsequently sued Mr. Shannon
for room and board furnished the wife, and it was held that the third
party was not estopped from showing the invalidity of the Indiana
divorce. Not only did this case involve an attempt to set up the
estoppel against one who was not even a party to the prior suit, but
it is merely another illustration of the well-settled rule that estoppel
does not arise unless the particular finding was necessary to the decision in the first suit. For the reasons indicated, we do not consider
that the cases cited by counsel support his contention. On the other
hand, the authorities mentioned below show that the rule is not as

he claims.
*Where a decision is rested on two grounds, the ruling on neither
is obiter but each is the judgment of the court and of equal validity
with the other. United States v. Title Insurance irk Trust Company,
265 U.S. 472, 486 (1924) ; Union Pacific Railroad Company v. Mason
City and Fort Dodge Railroad Company, 199 U.S. 160, 166 (1905) ;
Railroad Companies v. Schulte, 103 U.S. 118, 143 (1880) ; The Choctaw Nation v. United States, 135 F. Supp. 536 (Court of Claims,

1955), cert. den. 352 U.S. 825.
In the last mentioned case, there was involved the Choctaws' claim
to ownership of land lying west of the 100th meridian. There had
been a prior court decision against them in a case which did not
involve this land but which related only to land lying east of the
100th meridian. However, in the earlier case the Choctaws had used
as an argument a claim that they owned the land west of the 100th
meridian but the court in that case found to the contrary and this
was held res judicata in the second suit. (Since the cause of action
was not the same in the second suit, there was actually involved the
doctrine of collateral estoppel by judgment.)
In Railroad Companies v. Schutte, supra, the Supreme Court said
(p. 143) ;
It cannot be said that a case is not authority on one point because, although that point was properly presented and decided in the regular course
of the consideration of the cause, something else was found in the end which
disposed of the whole matter. Here the precise question was properly presented, fully argued and elaborately considered in the opinion. The decision
on this question was as Lune11 a part of the judgment of the court as was that

on any other of the several matters on which the case as a whole depended.

In Irving Nat. Bctnie v. Law, 10 F.2d 721 (C.C.A. 2, 1926), it was
stated at page 724: "* * * if a court decides a case on two grounds,
each is a good estoppel." The following rule is set forth in Restatement of the Law of Judgments, section 68, comment "n": "Where
the jiidgme.nt, is based upon the matters litigated as alternative
grounds, the judgment is determinative on both grounds, although
either alone would have been sufficient to support the judgment."
Accordingly, we reject this contention of counsel.
582

Counsel is correct in his statement that under the doctrine of collateral estoppel the point or question to he determined in the second
action must be the same as that litigated in the original action and
that it must have been a fact. which was essential to the first decision
(Tait v. Western Maryload Railway Co., 289 U.S. 620, 623 (1933) ;
Yates v. United States. 354 U.S. 298 (1957)). In the last mentioned
case, at page 336, the court said that the doctrine of collateral estoppel "makes conclusive in subsequent proceedings only determinations
of fact, and mixed fact and law, that were essential to the decision."
Counsel also asserts that a finding creates an estoppel only if it
was a finding of the ultimate fact in issue. In connection with this
contention, the Service stated its position as follows on page 8 of the
memorandum which accompanied its motion: "In other words, that
there is no distinction between ultimate facts and mediate data so
long as they were necessary to the result and were actually litigated;

that what is meant. by 'evidentiary' facts must be those facts which
were not litigated and not put in issue and did not in and of themselves effect the determination that was reached." We do not agree
with this statement nor with the view of the Service concerning the
analogy between the respondent's case and Local .167, International
Brotherhood of Teamsters, etc. v. United States, 291 U.S. 293, 298299 (1934). That case held only that the judgment in the prior
criminal case conclusively established that those found guilty were
parties to the conspiracy and those persons were estopped in the subsequent civil suit from denying participation in the conspiracy.
In support of this contention, counsel quoted the following which
appears in Restatement of the Law of Judgments, 1948 Supplement,
section 68, comment "p":
p. Evidentiary facts. The rules stated in this section are applicable to the
determination of facts in issue, i.e., those facts upon whose combined occurrence the law raises the duty or the right in question, but not to the determination of merely evidentiary or mediate facts, even though the determination of the facts in issue is dependent upon the determination of the evidentiary or mediate facts.

Comment "p" of section 68 of Restatement of the Law of Judgments employs the term "facts in issue" but does not use "ultimate
facts" which is the term on which counsel relies. Similarly, Travelers insurance Co. v. Commissioner of Internal Revenue, 161 F.2d
93 (C.C.A. 2, 1947), cert. den. 332 U.S. 766, and Norton v. Larney,
266 U.S. 511 (1925), cited by counsel, do not even refer to the term
"ultimate facts." Hymen v. Regenstein, 258 F.2d 502 (C.A. 5, 1958),
does mention ultimate facts but the decision there was predicated on
the well settled principle that a fact decided in an earlier suit is
conclusively established between the parties in subsequent litigation
provided it was necessary to the result in the first suit, and the court
held against Hyman on four alleged frauds—three of them under
-

583

the doctrine of collateral estoppel. The Evergreens v. Num.an, 141
F.2d 927 (C.C.A. 2, 1944), cert. den. 323 U.S. 720, is of no assistance
to counsel because the court specifically said (pp. 929-931) that the
question involved was not the relative conclusiveness of mediate data
and ultimate facts in the first suit, and the actual ruling was that

no fact decided in the first suit, whether an ultimate fact or a mediate
datum, conclusively establishes anything except a fact ultimate in
the second suit.
In connection with this contention, counsel also cited Yates v.
United ,States, supra. One of the defendants in that case was
Schneiderman who claimed that the court had made determinations'
favorable to him in a denaturalization proceeding and that these
were conclusive under the doctrine of collateral estoppel in a subsequent criminal proceeding. The court held that the prior determinations did not create an estoppel in the second proceeding because the
issues were different and the first suit involved a period prior to
1927 whereas the second suit involved the period from 1948 to 1951.
Schneiderman urged that, even if the prior determinations were not
conclusive, they should be given partial conclusive effect but the
court stated that the doctrine of collateral estoppel does not establish
any such concept. It was in this connection that the court made the
following statement at page 338: "The normal rule is that a prior
judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding.
So far as merely evidentiary or 'mediate' facts are concerned, the
doctrino of collateral estoppel is inoporativo." Counsel quoted and

relied on the second sentence. When considered in context, however,
it is clear that it relates only to the facts in the subsequent proceeding and has nothing to do with the relative conclusiveness of mediate
and ultimate facts in the first suit.
The remaining case cited by counsel in support of his contention
is King v. Chase, 15 N.H. 9 (1844). In that case also there is no
reference to "ultimate facts," although the case does illustrate a view
of a few courts that "ultimate fact" should be defined as "final fact."
However, the facts in the case were not as counsel stated them. The
first suit was for taking away a large quantity of oats and the se,eund
suit was for taking 30 tons of hay and other articles. In the first
suit, the finding that the plaintiff had no title to the oats must have
been predicated on the opinion that the mortgage he held was fraudulent. The court concluded that the title to the property in the
second suit had not been tried.
While only King v. Clumo, copra, lends any support to counsel's
contention that only ultimate facts found in the first suit become
an estoppel in the second suit, there are judicial decisions to that
effect. The matter is discussed in 142 A.L.R., pages 1243 to 1252,
584

inclusive. From what is there stated, it appears that, the. courts
generally agree that the doctrine of collateral estoppel is confined
to the ultimate facts in the first action and that it does not extend
to evidentiary facts. However, difficulty arises in defining the meaning of ultimate fact, as distinguished from evidentiary fact, for the
purposes cf the rule. The question is discussed in the "Comment
Note" in A.L.R. by considering ultimate fact under the concepts of :
(1) a pleadable fact or fact in issue, (2) a material element of legal
relationship in controversy, (3) an essential fact, and (4) a final fact.
In discussing the concept of ultimate fact as a final fact, the
"Comment Note" in A.L.R. refers to King v. Chase, supra, as the
leading case illustrating the view of some courts under which they
treat as an ultimate fact only what was actually the final issue between the parties and consider as evidentiary any fact from which
the ultimate fact is derived regardless of whether such evidentiary
fact was essential to the judgment. However, it is stated in the
"Comment Note" (142 A.L.R. at page 1248) that a comparatively
small number of cases hold that, under such circumstances, the determination of a litigated question does not. create an estoppel and that
these cases express a minority view. Considering counsel's reliance
on King v. Chase, supra, as well as the general tenor of his argument, it seems apparent that his contention is that it is only the final
issue in the first suit which becomes an estoppel. We dismiss this
contention since it is our opinion that such a definition of ultimate
fact is contrary to the view of the majority of the courts.
While we reject the concept that it is only the final issue in the
first action which creates a collateral estoppel in the nocond suit,
there is no question but that such an estoppel occurs if "ultimate
fact" is considered as being a fact in issue or a material element of
the suit or an essential fact.. However, under those circumstances,
the use of the word "ultimate" actually adds nothing to the determination of the question in this respondent's case. We will, therefore,
make our determination in his case in accordance with the principles
stated in Cromwell v. County of Sac, 94 U.S. 351 (1876), and Southern Pacific Railroad Co. v. United States, 168 U.S. 1 (1897).
In Cromwell v. County of Sap, supra, at page 353, it was said:
"* * * where the second action between the same parties is upon a
different claim or demand, the judgment in the prior action operates
as an estoppel only as to those matters in issue or points controverted,
upon the determination of which the finding or verdict. was rendered."
In Southern Pacific Railroad Co. v. United States, supra, at pages
48 49, the Supreme Court made the following statement: "The general principle announced in numerous cases is that a right, que s tion
or fact, distinctly put in issue and directly determined by a court of
competent jurisdiction, as a ground of recovery, cannot be disputed
-

585

in a subsequent suit between the same parties or their privies; and
even if the second suit is for a different cause of action, the right,
question or fact once so determined must, as between the same
parties or their privies, be taken as conclusively established, so long
as the judgment in the first suit remains unmodified." These rules
have been quoted in many subsequent decisions (Partmar Corporation v. Paramount Pictures Theatres Corporation, supra,at page 91;
United States v. International Building Co., 345 U.S. 502, 50-1-505
(1953), reh. den. 345 U.S. 978; United States v. Munsingwear,
340 U.S. 36, 38 (1950) ; Mercoid Corporation v. 111id-Continent Investment Co., 320 U.S. 661, 671 (1944) ; United States v. Moser, 266
U.S. 236, 241 (1924)).
In the denaturalization suit, the court found that the respondent
was an active member of the Communist Party and attended closed
meetings of the Party at least from 1930 to 1936, inclusive; that in
November 1932, together with other communists who had been selected or approved by the Communist Party, he went to Moscow,
U.S.S.R., where he attended the Lenin School; and that about 1934
he became section organizer for the New Kensington district of the
Party. The court also found that the respondent had penetrated
sufficiently far into the councils of the Communist Party to be thoroughly familiar with its ultimate objective of overthrowing the
Government of the United States by force and violence if necessary,
and that from 1930 to 1936 the respondent was committed to the
ultimate objectives of the Party. The court also found that in 1946
he joined the District of Columbia Communist Party.
We ,will first consider the quelduab which were at issue and controverted in the denaturalization suit and which were directly determined by the court. Since the Service and counsel did not offer in
evidence a copy of the complaint and the answer in that action, we
have found it necessary to determine the issues in that proceeding
on the basis of the pertinent statutory provision, the judgment
(Exh. 2), and the opinion of the court (Exh. 4; 152 F. Supp. 169).
8 E.S.C. 1451(a) authorizes the institution of denaturalization proceedings "on the ground that such order [of admission to citizenship]
and certificate of naturalization were procured by concealment of a
material fact or by willful misrepresentation."
Counsel apparently considers that one of the issues in the denaturalization proceeding was whether the respondent was attached to
the principles of the Constitution of the United States. After
stating in the penultimate paragraph of the opinion that the respondent's naturalization must be revoked because it was procured by
material misrepresentations and concealment, it was stated that the
same result was required by the court's findings that the respondent
was not sincere in his representation that he was attached to the
586

winciples of the Constitution of the United States and well disposed
o the good order and happiness of the United States. There was no
finding that the respondent was a member of the Communist Party
It the time of his naturalization in 1043, but the court inferred
(p. 176) from the respondent's activities between 1930 and 1936
and from his membership in 1946 that he was committed to the ultimate objectives of the Party at the time of naturalization and that
he was not attached to the principles of the Constitution. Under
the circumstances, the finding of nonattachment was merely a subsidiary one, was completely dependent upon the respondent's Communist Party membership and activity, and we believe it can he disregarded as an independent issue in the case.
In the first paragraph of the court', opinion, the concealments
and misrepresentations which were alleged by the Government as
the statutory basis for revocation were stated to be the respondent's
"membership in the Communist Party, his prior arrests, his illegal
departures from the United States to attend the Lenin School *
and his subsequent illegal entry into the United States." The respondent's illegal departure from the United States in November
1932, his use of a fraudulently obtained United States passport and
his subsequent illegal entry do not appear to be points which were
controverted because counsel conceded that the respondent had not
legally entered or reentered the United States after November 12,
1932 (p. 174). The respondent's concealment of his arrests does not
appear to have been an important issue because the court did not
reach any definite conclusion as to whether the arrests were material
except insofar as they might have led to discovery of the respondent's
Communist, Party membership and activities (p. 178).
The one remaining matter concerning which there was concealment
and misrepresentation was the respondent's membership in the Communist Party. The court found that the designated naturalization
examiner had asked the respondent at the time he filed his petition
for naturalization, "Are you now or have you ever been a communist,
a nazi, a fascist, or a radical of any type?" and that the respondent
answered, "No." The respondent did not take the stand during the
trial of the denaturalization suit and, hence, there was the uncontradieted testimony of the examiner concerning the question asked and
the answer the respondent gave. Counsel apparently contends that
the issue was whether the respondent gave false testimony before
the examiner and not whether he was a member of the Communist
Party. However, if the respondent had not been a communist or a
member of the Communist Party, his negative, answer would have
been truthful. Accordingly, we conclude that the basic question and
the principal point which was actually controverted in the denaturalization suit was whether the respondent had been a member of

the Communist Party during the 10 years preceding his naturalization. That this was the chief question in that proceeding is illustrated by the extent of the findings and discussion concerning that
matter in the court's opinion.
We next consider the questions in controversy in this deportation
proceeding. At the hearing, the respondent through counsel conceded that he is not a citizen or national of the United States, that
he is a native of Russia, and that he entered the United States at
New York on or about January 1, 1923. The only point in controversy in this deportation proceeding is the same as the one we have
concluded was the principal point controverted in the denaturalization suit, that is, the respondent's membership in the Communist
Party. This is subject to the qualification that the word "member"
must be understood as it has been judicially defined in Gahan, v.
Press, 347 U.S. 522 (1954), and Rowoldt v. Perfetto, 355 U.S. 115
(1957). Rowoldt was decided on December 9. 1957, which was subsequent to the court's opinion dated June 13, 1957, in the denaturalization suit relating to this respondent. However, in Rowoldt the
court affirmed the conclusions it had previously reached in the
Galvan ease.
In Gabvan v. Press, supra, the court found the alien deportable
but referred (p. 527) to a memorandum inserted in the Congressional
Record indicating "that Congress did not provide that the three types
of situations it enumerated in the 1951 corrective statute [Act of
March 28, 1951, 65 Stat. 28] should be the only instances where
membership is so nominal as to keep an alien out of the deportable
class." The court concluded (p. 528) that support, or even demonstrated knowledge, of the Communist Party's advocacy of violence
was not intended to be a prerequisite to deportation but that it
"is enough that the alien joined the Party, aware that he was joining an organization known as the Communist Party which operates
as a distinct and active political organization, and that he did so of
his own free will."
In the denaturalization suit against the respondent, the Government was required to meet a higher standard of proof than in a
deportation proceeding, that is, it was required to establish its case
by clear, unequivocal and convincing evidence. Although the Galvan case involved a deportation proceeding, we believe that the
Government was required to establish in the denaturalization proceeding against the respondent that he was a "member" of the Communist Party as the term had been judicially defined. The opinion
of the court, in the denaturalization suit against the respondent,
does not mention the Galvan case but, since the court specifically
stated that "mere membership" would not have been sufficient, we

588

believe it is apparent that it took cognizance of the judicial definition
which had been given to the word "member."
As stated above, the rule laid down in Cromwell v. County of Sac
and Southern Pacific Railroad Co. v. United States, supra, is that
the judgment in the prior action operates as an estoppel as to those
matters in issue or points controverted upon the determination of
which the finding was rendered, and that a question or fact distinctly put in issue and directly determined in the first action must
be taken as conclusively established in subsequent proceedings. We
have concluded above that one of the matters in issue and points
controverted (in fact, the principal one), upon the determination
of which the judgment in the denaturalization suit was rendered,
related to whether the respondent was a member of the Communist
Party during the 10 years preceding his naturalization in 1943.
This was an essential matter in issue in that proceeding and the
court made a direct determination of that, question. It found that
the respondent had been an active member of that organization from
at least 1930 to 1936 and that he was familiar with, and committed
to, its ultimate objective of overthrowing the Government of the
United States by force and violence if necessary. Accordingly, we
hold that, under the doctrine of collateral estoppel by judgment, it
has been establishe_. that the respondent during the period from
1930 to 1936 had been a "member" of the Communist Party of the
United States as the term "member" has been judicially defined.
The court stated that the respondent was not found to have been
actually a member of the Communist Party at the time of his naturalization in 1943. He joined the District of Columbia Communist
Party in 1946 but was not very active. From the testimony of a
witness concerning the 1946 membership of the respondent, the court
found that the respondent was committed to the objectives of the
Communist Party at that time and inferred that he was also committed to those objectives at the time of his naturalization in 1943.
While the 1940 membership was pertinent in that connection, it was
not so essential to that decision as to create an estoppel in this
deportation proceeding. The Government offered no other evidence
that the respondent was a member of the Communist, Party in 1946,
and we hold that his membership at that time has not been established.
Counsel also contends that the respondent is not. deportable because the Government has not established Communist Party membership subsequent to his last entry on September 19, 1945, when he
returned to the United States as a member of the armed forces of
this country. As we have stated above, the Government has established that the respondent was a member of the Communist Party
from 1930 to 1936 but not that he was a member in 1946. 8 U.S.C.
589

1251(a) (6) (C), in effect, authorized the deportation of an alien who
has been, after entry, a member of the Communist Party of the
United States. Hence, the respondent would not be deportable on
the present record if membership were required to be established
subsequent to his last entry on September 19, 1945. The question
resolves itself, therefore, into whether the word "entry" in the statute can be said to mean either the respondent's original entry on
January 1, 1923, or his illegal reentry following his trip to Moscow
in November 1932. We have previously held that the original entry
may be used in a deportation proceeding under 8 U.S.C. 1251(a) (6)
(Matter of H , A-1743741, Int. Dec. No. 956 (1958)).
Counsel cited Talc Shan Fong v. United States, 359 U.S. 102
(1959) ; Petition of Zaino, 131 F. Supp. 456 (S.D.N.Y., 1955) ; and
In re Tehalcalian's Petition, 146 F. Supp. 501 (N.D. Cal., 1956).
These cases relate to petitions for naturalization which had been
filed under the Act of June 30, 1953 (67 Stat. 108; 8 U.S.C. 144a,
1952 ed., Supplement V). The particular question related to the
construction to be given to language which permitted the naturalization of an alien member of the armed forces who had been lawfully admitted to the United States and had been physically present
within the United States for a single period of at least one year at
the time of entering the armed forces. In re EcItiverri. 131 F. Supp.
674 (D. Hawaii, 1955), merely involved the question of whether the
alien had been lawfully admitted on December 21, 1946. These
cases offer no support to this contention of counsel.
The remaining case cited in this connection was Bonetti v. Rogers,
356 U.S. 691 (1958). In that case the alien entered the United
States in 1923 and was a member of the Communist Party from
1932 to 1936. He abandoned all rights of residence in the United
States on June 28, 1937. Subsequently, he obtained a quota immigration visa abroad and on October 8, 1938, he was admitted to the
United States for permanent residence. The court stated that the
Government was not seeking to annul any right of presence which
Bonetti acquired under the 1923 entry and that it could not be that
entry which the deportation statute contemplated since Bonetti
had abandoned all rights of residence under that entry. Counsel
interprets the Bonetti case as holding that Communist Party membership is a ground for deportation only if it occurred after "the
last legal entry." Bonetti does not hold that it is only the last entry
which governs since he had last entered in September 1939 after a
one-day visit to Mexico. Similarly, that case contains no language
indicating that a person who entered unlawfully and who thereafter became a member of the Communist Party could escape deportation under 8 U.S.C. 1251(a) (6). In other words, the case also

590

ru_ethat 1ceportation under Ihat statutory provision must
does not1
be predicated on a legal entry.
The word "entry" is defined in 8 U.S.C. 1101(a) (13) as any coming of an alien into the United States from a foreign port or place
with certain exceptions which are inapplicable to the case of this
respondent. The special inquiry officer adopted the four allegations
in the order to show cause as his four findings of fact. The only
finding concerning entry was that the respondent entered the United
States on January 1, 1923. Hence, it appears that the Government
is seeking to annul the respondent's "right of presence" acquired

under the 1923 entry. There is nothing in this record which would
indicate that the respondent had any intention of abandoning his
residence in the United States when he went to Moscow in 1932 to
attend the Lenin School or when he &parted for duty overseas as a
member of the United States Armed Forces on July 3, 1943. In
relation to this respondent's case, we hold that the word "entry" in
8 U.S.C. 1251(a) (6) refers to the respondent's entry on January 1,
1923, and that he is deportable because thereafter he was a member
of the Communist Party of the United States. The following order will be entered.
Order: It is ordered that the motion of the Service dated December 8, 1959, be granted and that our order of October 27, 1959,
be withdrawn.
It is further ordered that the respondent's appeal from the order
of deportation be dismissed.

591


Interim Decision #2045

MATTER OP SUM
In Deportation Proceedings
A-4713047

Decided by Board May 22, 1970
Respondent's conviction under section 11720 of the California Health and
Safety Code for unlawful use of proscribed narcotic drugs may not be
equated with a conviction for unlawful possession of such narcotic drugs
so as to bring him within the "illicit possession" provisions of sections
212(a) (23) and 241(a) (11) of the Immigration and Nationality Act
(Varga v. Rosenberg, 237 F. Supp. 282 (S.D. Calif., 1964), followed).
[Matter of H—U—, 7 I. & N. Dec: 533, and Matter of Fong, 10 I. & N.
Dec. 616, overruled.]

CHARGES :
Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) ]—Excludable at time of entry—immigrant, no visa (section
212(a) (20) of Act).
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)1—Excludable at time of entry—immigrant, no visa section 13 (a), Act of May 26, 1924).
ON BEHALF OF RESPONDENT:
Robert S. Bixby, Esquire
30 Hotaling Place
San Francisco, California 94111

ON BEHALF OF SERVICE:

Sam T. Feldman
Acting Appellate Trial Attorney
(Brief filed)

The special inquiry officer certified his order denying respondent's application under section 249 of the Act. The application
will be granted.
The question is whether the Board should continue to follow its
precedents holding that a conviction for unlawful use of proscribed drugs makes an alien deportable as one who has been convicted for unlawful possession of such drugs. We shall overrule
the precedents.
The facts have been fully stated by the special inquiry officer.
He found the respondent deportable on the lodged charge. Respondent applied to the special inquiry officer, under section 249
of the Act, for the administrative creation of a record of lawful
admission for permanent residence. One condition of eligibility is
gg0

Interim Decision #2045
that the applicant not be excludable under provisions excluding
"violators of the narcotic laws". The pertinent portion of section
212 (a) (23) of the Act requires exclusion of, "Any alien who has
been convicted of a violation of * * * any law or regulation relating to the illicit possession of or traffic in narcotic drugs or
marihuana * * *." 1 Respondent has been convicted in 1941 for
taking or using narcotics. 2 The special inquiry officer did not personally believe that the conviction for taking or using narcotics
made respondent inadmissible under section 212 (a) (23) which
speaks of possession of the proscribed drugs. However, since
Board precedents equate a conviction for unlaful use with a
conviction for unlawful possession, he held that the respondent
was inadmissible under section 212 (a) (23)
An issue similar to that before us was considered in Varga v.
Rosenberg, 237 F. Supp. 282 (S.D. Calif., 1964). Varga was convicted under section 11721 of the California Code which punishes
a person who illegally used or came under the influence of a proscribed drug. The Service sought to deport him under that portion
of section 241 (a) (11) of the Act which requires the deportation
of an alien "who at any time has been convicted of a violation of,
* * * any law or regulation relating to illicit possession of or traffic in narcotic drugs or marihuana * * *". (Emphasis supplied.)
The court held that the respondent was not deportable. The court
pointed out that the legislative history indicated that Congress intended to attack traffic in rather than use of narcotics. The court
found that Varga's conviction was for use. The court concluded
that the drug had been in his system, and that it followed he had
not been in the possession which would have given him the power
to traffic in the drug.
Varga is the only published court decision on the issue. The position of the court in that case is based on legal precedents which
hold that "use" does not necessarily include "possession." A con.3

1 It is unnecessary to comment on the significance, if any, of the section
249 reference to narcotics and the section 212(a) (23) reference to this, but
also to marihuana.
2 Respondent was convicted on July 25, 1941 of violating then section
11720 of the California Health and Safety Code which required the criminal
punishment of a "narcotic addict"—a term defined as relating to one who illegally "takes or otherwise uses any narcotics". Respondent testified he used
narcotics on or off before his conviction and did not use it thereafter. He
does not appear to have been an "addict" as that term is defined under immigration laws, Matter of F—S—C—, 8 I. & N. Dec. 108 (BIA, 1958) .
3 Matter of Fong, 10 I. & N. Dec. 616 (BIA, 1964) ; Matter of H—U—, '7
I. & N. Dec. 533 (BIA, 1957).

570

Interim Decision #2045
trary view had previously been expressed by another judge of the
same court in an unreported decision, Rukaroff v. Rosenberg,
No. 212-61–TC, April 17, 1961, which was apparently never appealed. The Solicitor General of the United States, although
aware of the cleavage, declined to authorize an appeal in Varga.
The Service's trial attorney stated at the hearing that the Serv-

ice follows Varga in that it does not institute a deportation proceeding if the conviction is such as is found in that case (pp.
10-11). Insofar as concerns the "illicit possession" portions of
sections 212(a) (23) and 241(a) (11) of the Act, we believe that
Varga should be followed rather than Bukaroff and the Board
precedents to the contrary. We, therefore, overrule Matter of
Fong, supra, and Matter of H—U---, supra, which hold to the
contrary.
ORDER: It is ordered that the special inquiry officer's denial of
respondent's application under section 249 of the Act he withdrawn.

It is further ordered that respondent's application under section

249 of the Act he granted.

571


Interim Decision -#137a

MATTER OF PETERSON

In VISA PETITION Proceedings
A-8952166
Derided by Regional Conymiasioner December 19, 1963
Beneficiary, who is employed on a cattle ranch engaged in raising purebred
herefords for sale and show purposes, and who is responsible for the feeding
of young calves up to the age of about 15 months and of the bulls kept on

range for breeding purposes, who assists in the vaccination and immunization
of the stock, treats minor ailments, measures and mixes the feed grains according to prepared formulas, grooms and cares for animals being prepared
for exhibition purposes, assists with haying and in the irrigation and cultivation of the farm land is ineligible for first preference classification under

section 203(a) (1), Immigration and Nationality Act, as amended, since the
duties performed are duties ordinarily performed by a good ranch hand or
herdsman and do not require the high education, technical training, specialized
experience or excepticeial ability contemplated by the statute.

This cam comas -before the Regional Commissioner on appeal from
the decision of the District Director, San Francisco, who denied the
petition on the grounds that the duties of the position for which
petitioned do not require the high education, technical training, specialized experience or exceptional ability to the degree contemplated
by the statute for first preference classification.
Petitioner is owner and manager of the cattle ranch "Ruby Mountain Herefords" near Elko, Nevada. This ranching business was
established in 1930. Petitioner has approximately 2,000 head of cattle
ranging on 15,000 acres of fee-simple land and employs from eight to
seventeen persons. The ranch is valued at about $100,000 with an
annual income of $75,000 to $90,000. Purebred herefords are raised
for sale and show purposes.
Beneficiary is a 56-year-old married male, a native and citizen of
Spain who was admitted into the United States as a. crewman at
Philadelphia, Pennsylvania, on May 15, 1953, for a period not to exceed
29 days. He deserted his ship, went west and has been employed by
the petitioner in Nevada since June of 1953. Following his apprehension, he was served with an order to show cause and at a hearing
663

Interim Decision #1373
accorded0.by a. Special Inquiry Officer on March 26, 1956, was found to
be deportable and granted voluntary departure with an alternate order
of deportation. Various private bills introduced periodically in his
behalf since 1953 have failed of passage. On April 10, 1963, the visa
petition for first preference classification was filed in his behalf.
The petitioner states that beneficiary is responsible for the feeding
of the young calves up to the age of about fifteen months, that beneficiary assists in the vaccination and immunization of the stock and
treats minor ailment . He measures and mixes the feeed grains according to prepared formulas and grooms and cares for the animals that
are being prepared for exhibition purposes. He is also responsible
for the feeding of bulls that are kept on the range for breeding purposes. During the Spring and Summer months, he assists in the irrigation and cultivation of the farm land and assists with the haying.
The clearance order issued by the Bureau of Employment Security
titles the position to be filled as "cattle breeder" and describes the duties
as "Takes care of the health, welfare, feeding, halter breaking and exhibition of from 40 to 50 head of registered hereford cattle both while
at the home ranch and while on the road exhibiting. Compounds
feed formulas as directed. Observes daily health of stock by frequent
inspection. Tests cattle and inoculates or treats with salves when
necessary." The clearance order further shows that a minimum of
five years' experience in the care and exhibition of purebred beef cattle
is required and that the position requires a man who is gentle and
tolerant with stock.
The Dictionary of Occupational Titles, 'Volume I, defines a "cattle
breeder" as one who "Breeds and raises purebred beef or dairy cattle
for sale to Dairymen II, Cattle Ranchers; and other growers. Seeps
pedigree records. Grooms cattle and exhibits them at fairs, conventions, and other gatherings."
Petitioner is in reality the "cattle breeder." While it is true the
beneficiary grooms the cattle, he is not the exhibitor. The petitioner,
Ruby Mountain Herefords, is the exhibitor. The petitioner breeds
and raises the purebred stock and keeps the pedigree records. The
petitioner, himself, and others who have presented letters attesting to
the beneficiary's ability to perform the tasks of the position refer to the
beneficiary as "herdsman" which is a more descriptive title of his
duties.
We agree with counsel that beneficiary is qualified to perform the
duties as set forth by the petitioner and that petitioner needs the services of an employee to perform these duties. However, we must agree
with the District Director that the tasks performed do not require
the high education, technical training, specialized experience or special
ability as contemplated by the statute for first preference classification.
664

Interim Decision *1378
Counsel has argued that if the "requirements are met in any degree,
the petition should be granted." We do not agree. The tasks to be
performed must be of a degree of complexity or difficulty that only a
person with a high education, technical training, exceptional ability
or specialized experience could, because of these qualifications, proficiently perform the duties. The duties performed by the beneficiary
are duties ordinarily performed by good ranch hands or herdsmen
and do not meet first preference standards. The appeal must be dismissed and the decision of the District Director to deny the application
be affirmed.
ORDER: It is ordered that the appeal be dismissed and the decision
of the District Director to deny the application be affirmed.

605