Interim Decision #2076

MATTER OF THE
In Visa Petition Proceedings
A-18500754
Decided by Regional Commissioner March 9, 1971
Since the qualification requisites relating to physicians as set out in 8 CFR
204.2(e) (2) may be applied to dentists, and since the passing by
petitioner/beneficiary of the Science Achievement Examination for Dentistry given by the American Dental Association is not equivalent to passing the examination given by the Educational Council for Foreign Medical
Graduates specified in 8 CFR 204.2(e) (2), petitioner/beneficiary, who received his dental education in Indonesia but did not obtain a full and
unrestricted license to practice in that country, has failed to establish eligibility for preference classification under section 203(a) (3) of the Immigration and Nationality Act, as a dentist.
ON BEHALF OF APPELLANT: Allen R. Jackson, Esquire
580 Washington Street
San Francisco, California 94111

This case comes before the Regional Commissioner on appeal
from the decision of the Acting District Director, San Francisco,
who denied the petition on January 6, 1971 in that the appellant
had failed to establish that he qualified as a member of the professions as a dentist and was, therefore, not eligible for classification under section 203(a) (3) of the Immigration and Nationality Act, as amended.
The appellant is a 33-year-old single male, a native and citizen
of Indonesia. He was last admitted to the United States as an
"F" student on September 18, 1968 and granted extensions of
stay in that status to March 29, 1970. At time of admission he
was destined to Bay City College of Dental-Medical Assistants,
San Francisco, where he took a dental technician's course in
"Crown and Bridge" and was issued a certificate showing that he
qualified as a crown and bridge lab technician. On February 12,
1969 he transferred to the College of Marin near San Francisco
where he was enrolled in a pre-dental course. Evidence has been

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iterim Decision #2076
resented that he is now enrolled in the special program at the
niversity of Southern California as a third-year dental student.
He filed a petition under section 203(a) (3) of the Act on July
7, 1970 as a member of the professions as a dentist to seek work
such in California. The petition was denied by the District
lirector on September 14, 1970 for lack of a Labor certification
ursuant to section 212(a) (14) of the Act. On October 28, 1970
ie Department of Labor advised this Service that upon their re)nsideration a Labor certification for the occupation of dentist
ad been issued in behalf of the appellant on October 28, 1970.
he Acting District Director on his own motion reopened the case
nd again denied the petition on January 6, 1971 finding that the
ppellant was not qualified as a member of the professions as a
entist.
The denial decision in pertinent part states:
Petitioner has submitted evidence that he completed his studies at Trisakti
Jniversity in Indonesia and passed the final examination of the Faculty of
)entistry but did not take the state examination which is required to obtain
he "Doctorgigi" (dentist) degree and license as a dentist. He has also subnitted evidence that he completed a crown and bridge lab technician's course
.t Bay City College of Dental-Medical Assistants in San Francisco; passed
he science achievement examination for dentistry given by the American
)ental Association; and has been accepted in the University of Southern
'.3alifornia School of Dentistry as a third-year student. He lists employment
Ls a teaching assistant in the Faculty of Dentistry at Trisakti University
'roam 1964 to 1965 and as a crown and bridge lab technician from July 1969
o July 1970.
Matter of Maher, 12 I. & N. Dec. 680, holds that a graduate of a foreign
,chool of dentistry who has obtained a full and unrestricted license to practice
lentistry in the country of his education qualifies as a member of the proessions within the meaning of section 101 (a) (32) of the Immigration and
qationality Act, as amended, and is eligible for preference status under secion 203(a) (3) of the Act, as amended. Petitioner did not take the state
xamination which is required to obtain his dentist degree and license in
ndonesia and he has never been employed as a dentist in any other country.
From the evidence submitted it cannot be found that he is a qualified member
if the profession for which he is petitioning. Petition will accordingly be
lenied.

In the Matter of Maher, supra, reference is made to 8 CFR
204.2 (f) (2) (now 8 CFR 204.2 (e) (2) ) which relates to alien physicians who, if they meet certain conditions, "shall be considered
eligible for classification as a member of the professions" and
goes on to state: "Although the above-cited excerpt from 8 CFR
204.2(f) (2) relates specifically to one of the criteria for determining whether an alien physician may be classified as a member
of the professions, we conclude that criterion may be applied with
676

Interim Decision #2076
equal validity to alien dentists." We will, therefore, apply the
qualification standards as set forth in 8 CFR 204.2(e) (2) to the
profession of dentistry.
8 CFR 204.2(e) (2) provides as follows :
An alien physician shall be considered eligible for classification as a member
of the professions if he establishes that he was graduated from a medical
school in the United States or Canada, or that he was graduated from a
foreign medical school and has successfully passed the examination given by
the Educational Council for Foreign Medical Graduates, or that he was
graduated from a foreign medical school and has obtained a full and unrestricted license to practice medicine in the country where he obtained his
medical education. In any other case the District Director may consult the
Educational Council for Foreign Medical Graduates or other organizations
and experts in the medical field for the purpose of obtaining an advisory
opinion of the alien's qualifications as a physician.

It should be noted from the above that there are three possibilities for establishing eligibility for classification as a member of
the professions as a physician which Matter of Maher, supra, indicates may be applied to the profession of dentistry— (1) being
a graduate of a United States or Canadian medical school ; (2)
being a graduate of a foreign medical school and having passed
the Educational Council for Foreign Medical Graduates (ECFMG)
examination ; or (3) being .a graduate of a foreign medical school
and having a full and unrestricted license to practice in the country
where he obtained his education.
The appellant, not being a graduate of a United States or Canadian school definitely does not fall into category (1).
A letter dated August 18, 1969 by the Dean of the Faculty of
Dentistry, Trisakti University, states :
In order to obtain the "Doctorgigi" (dentist) degree, students of the Faculty of Dentistry of the TRISAKTI UNIVERSITY have to pass a state
examination in accordance with Decree Nr. 74, 1967 Directorate General of
High Education, Minister of Education.
Enclosed copies of transcripts and other information concerning examinations passed by Mr. The Bian Tjing as signed by former Dean of the Faculty
of Dentistry of RES PUBLICA UNIVERSITY, Dr. Tjia Soen Lee, are
found to be correct.
Mr. The Bian Tjing has already passed the final examination of said Faculty 'of Dentistry, however has not yet passed above mentioned State examination.

This letter indicates that while the appellant may be a graduate he has not yet passed the necessary State examination so
officially has no degree and does not have a "full and unrestricted
license to practice" in Indonesia where he obtained his medical
education. He, therefore, does not meet the requirements of category (3).

677

Interim Decision #2076
The remaining possibility is category (2), graduate from a foreign medical school and passing the ECFMG examination. A letter dated June 25, 1970 from the Director, Special Student
Program, University of Southern California, Los Angeles, states
Dr. Bian The's credentials have been examined by the Admissions Office at
the University of Southern California and have been found in order. This is
a specific prerequisite for our Special Student Program. He must be a
graduate from dental school and our Admission office found this to be true.

We will honor the finding of the Director, Special Student Program, to the effect that the appellant is a graduate of a dental
school. The final issue is to determine if the appellant has passed
the ECFMG examination or its equivalent.
The record shows that the appellant has passed the "Science
Achievement Examination for Dentistry" given by the American
Dental Association. Counsel's principal argument on appeal is
that the passing of this examination is the equivalent of passing
the ECFMG examination, and having passed such examination
the appellant meets the requirements of category (2) of 8 CFR
204.2 (e) (2) and cites Matter of Maher, supra. Maher, however,
was a graduate and had a full and unrestricted license to prac:ice. In the case before us the appellant, while we will consider
din to be a graduate, failed to take the required State examina;ion and has not obtained a full and unrestricted license to pracice. In the case before us we must now determine if the passing
)f the "Science Achievement Examination for Dentistry" is the
!quivalent of passing the ECFMG examination.
On February 26, 1971 the Executive Director of the ECFMG
)y letter advised the Service that "The purpose of the ECFMG
wogram is to determine whether graduates of foreign medical
chools are qualified to start a graduate medical training program
s intern or resident in approved United States hospital." (Emthasis supplied.)
A pamphlet entitled "Science Achievement Examination for
)entistry," published by the Division of Educational Measurements, Council on Dental Education, American Dental Associaion, states: "The science achievement examination is intended to
Irovide dental education programs with an evaluation of the
asic science competency of the foreign dental graduate seeking
dmission to either the undergraduate D.D.S. or D.M.D. degree
rogram or some type of advanced dental education" and "Thereore, the Science Achievement Examination for Dentistry was
eveloped to provide an accurate evaluation of the candidate's
-

,

678

Interim Decision #2076
knowledge in the basic sciences. This is one of the major criteria
used to determine the proper level of placement for the prospective degree candidate."
From the above it is evident that the two programs, ECFMG
examination and Science Achievement Examination for Dentistry, do not serve the same purpose and that the passing of the
Science Achievement examination cannot be equated with the
purpose of the ECFMG examination as set forth in 8 CFR
204.2 (e) (2). The ECFMG examination determines if the foreign
medical graduate is qualified to start a graduate medical training
program as an intern or resident. The Science Achievement examination is to evaluate the basic science competency of the foreign dental graduate and to determine the level of placement in a
dental school, undergraduate or graduate, where the alien will enroll. In the present case the record shows that the appellant's
level of placement was given as "3RD YR. (TENT)" and has
been accepted as a third year student at the University of Southern California Dental School.
Considering all the factors discussed herein we find that the
appellant cannot at this time be found to qualify as a member of
the professions as a dentist under section 203 (a) (3) of the Act.
Matter of Brantigan, 11 I. & N. Dec. 493, holds that the burden
of proof to establish eligibility for a desired preference rests with
the appellant. That burden has not been met. The appellant has
failed to establish that he is eligible for the classification he
seeks. The appeal will be dismissed.
Denial of the petition, however, is without prejudice to the consideration of a new petition for sixth preference classification
should the appellant obtain a definite offer of employment from a
prospective employer in this country seeking his services and an
appropriate certification be issued by the Department of Labor
pursuant to section 212 (a) (14) of the Act, as amended.
ORDER: It is ordered that the appeal be dismissed.

679


MATTER OF S-

C

A

1-1

I--

In VISA PETITION Proceedings
VP 16-1-24802
Decided by Acting Regional Commissioner Noventhel 18, 1958
Approved by Assistant Commissioner
Preference quota status—Section 203(a)(1) of 1952 act—Interns must meet
medical requirements of State where internship will be served.
Foreign physician coming to intern at a California hospital is not eligible for
first preference quota status when neither he nor the petitioning hospital
has complied with State medical requirements for the qualification and training of Interns. (Matter 01 L------11—, 7 T. a re Dec. 400, dtatiuguirhed. l

BEFORE THE REGIONAL COMMISSIONER
Discussion: This case comes forward on appeal front tho district
director's order of August 18, 1958, denying the petition on the
ground that the beneficiary is not licensed by the State Board of
Examiners to practice medicine in California.
The petitioner seeks first preference quota status under section
203(a) (1)(A) of the Immigration and Nationality Act for the
beneficiary claiming that his services are urgently needed in the
United States.
The petitioner is an institution doing business as a• general acute
hospital in Upland, California, with gross annual income of $1,500,000.00. The petition seeks the beneficiary's services to perform
the customary duties of a medical intern. He is to be paid approximately $150 per month for approximately 40 hours work per week.
The beneficiary is a 27-year-old single male, citizen of Italy,
presently residing in Torino, Italy. He obtained his degree of
Doctor in Medicine and Surgery nn Tiecember 3. 1957, from the
Faculty of Medicine and Surgery, University of Studies, Turin,
Italy. The petitioner alleges the beneficiary has been practicing
medicine in Italy.
The petitioner states that there is an acute shortage of interns
in the United States, this being especially true in the case of small
hospitals, the available interns being desirous of associating themselves with large teaching centers rather than small rural hospitals.
190

The United States Employment Service also advises of the shortage
of interns in the United States.
The United States Employment Service's Dictionary of Occupational Titles sets forth the following definition for an intern: "Performs medical duties while serving in a hospital for a specified
length of time to gain practical experience immediately following
graduation from a medical school, as a requirement for license to
practice medicine." The petitioning hospital is not listed in section
1330 of chapter 13, Board of Medical Examiners, as an approved
hospital for the training of interns. Inquiry to the State Board
of Medical Examiners, hereinafter referred to as the "Board,"
reveals that the petitioning hospital has not been so approved subsequent to the publishing of this list on September 11, 1957.
The California Business and Professions Code, hereinafter referred
to as the "Code," in Division 2, Chapter 5, Articles 4 and 5, sets
forth, among other things, the requirements an alien graduate of a
foreign medical school must fulfill prior to obtaining permission to
intern in an approved hospital in the State of California. Every
applicant for permission to intern in a hospital must file satisfactory documentary evidence showing the following educational
qualifications:
Preliminary education. A diploma from a four-year California high school,
or, its equivalent.
Premedical educed... A two your resident a. m . ., of college grade. including the subjects of physics, chemistry and biology, before commencing the resident course of professional instruction in medicine. Applicants matriculating
in a medical school after January 1, 1954, roust show the completion of a
three-year course of college grade, Including the subjects of physics, chemistry
and biology, before commencing the resident course of professional instruction in medicine.
Professional education. A medical curriculum extending - over a period of
at least jour academic yemo la a medicine school, the Cord,. of =Judy therein
totaling at least 4,000 hours education in the .subjects specified iu the Business
and Professions Code. If the applicant has studied in more than one medical
school, he roust file a satisfactory "Certificate of Medical Education," showing
subjects, hours and number of weeks completed, certified by the proper officer
of each medical school attended.
Original medical diploma, as evidence of the completion of the required
medical education, must accompany the application.
Evidence satisfactory to the Board that the medical school or schools referred to are recognized by the authorities in his country as quolifying its
graduates for the practice of medicine most accompany the locuments.
If the shove required documentary evidence is found acceptable,
the applicant will be permitted to take the written examination.
No foreign graduate may intern in a hospital in the State of California unless the application is approved and he passes the written
examination. When the applicant passes the written examination
he will then be eligible to commence an internship in an approved

191

hospital in the State of California. Internship may be served only
in hospitals approved for that service.
The petitioner advises that the beneficiary is not licensed to
practice medicine in California. No evidence has been submitted to
indicate that the beneficiary was found qualified for and has been
granted permission by the Board to enter into internship in a California hospital. The petitioning hospital is not approved by the
Board for the training of interns.
The beneficiary's qualifluatious as furnished by the petitioner -were
submitted to the Board for an opinion as to his being qualified
to enter into internship upon arrival in California. The Board
adviced that there was ingufficient evidence that this beneficiary is
eligible for permission to take the written examination for permission to intern in an approved hospital in California.
Any person who unlawfully practices in the State of California is
guilty of a misdemeanor under section 2141 of the California Business and Professions Code.
Counsel for petitioner in his brief states that the degree or
license is not the important point, the important point being
whether the beneficiary's services are urgently needed. To obtain
a first preference status, an alien must be able after arrival here
to perform those services qualifying him for preference status.
Without permission the beneficiary may not intern in California,
and if he were to so intern or practice without the required permission, he would be committing a misdemeanor. That the petitioner has urgent need for an intern qualified to practice or work
as such is conceded. The beneficiary of the instant petition not
having met all of the requirements of the Code, sugra, and not
having the permission of the Board, does not now qualify to perform the duties of the position sought to be filled by the petitioner
and it is uncertain when or whether he will qualify. Additionally,
the petitioning hospital is not approved for the training of interns.
This case is readily distinguishable from Matter o/ L
H—,
7 I. & N. Dec. 430. In that case, upon the recommendation of a•
hospital, a temporary license was available to the beneficiary affording her 6 months during which she could perform the services
qualifying her for the preference and, in addition, place her in a
position to obtain a permanent license. In the instant petition a
temporary license and/or permission is not available. In the cited
ease the petitioner was able to utilize the alien's skill and experience
to some extent under the local restrictions. In the instant case no
part of the skill or experience of the beneficiary as an intern can
by law be utilized by the petitioner, firstly, because the petitioner
itself is not an approved hospital, and secondly, because the beneficiary is not presently qualified under the applicable State laws
referred to above.
192

For the reasons set forth herein, the petition properly was denied
by the district director.
Order: It is ordered that the district director's order of August
18, 1905, denying the petition for viga preference classification be

affirmed.

193


Interim Decision #1572

arpsu or Cora=
In Deportation Proceedings
, A-13241835
Decided by Board April 11, 1965
Where respondent was married in Italy by religions ceremony - in 1962, a
child was born of this union, and respondent Ilved with Isla wita in a
husband-wife relationship until his entry into the United States on July 6,
1963, with a preference immigrant visa obtained under the then existing
provisions of section 203(a) (3), Immigration and Nationality Act, as the
unmarried eon of a U. O. resident alien, he was not entitled to sueli status

as he was not "unmarried" within the meaningof the immigration laws
even though at the time of entry his religious marriage lacked formal perfection, it having no civil effect until recorded on October 28, 1963, upon
his return visit to Italy.
CiLIAGEO

Order: Act of 1952—Section 241(a) (1) (8 17.8.43. 1251(a) (1)1—Excludable
at entry—Not of proper status under quota—Section 2.11(a) (4) US 118.0. 1181(a) (4)).
Lodged: Act of 1952—Section 241(a) (1) (B U.S.C. 1251(a) (1)1—Excludable
at entry—Immigrant, no valid• entry document—
Section 212(a) (20) (8 U.S.C. 1182(a) (20)).

The case comes fOrward on appeal by the trial attorney from a
decision of the special inquiry officer dated December 8, 1965 ordering that the proceedings be terminated.
The record relates to a native and citizen of Italy, male, who was
issued by the United States .Consulate in Genoa, Italy on April 2,
1963 a preference immigrant visa under the then existing provisions
of section 203(a) (8) of the ImMigration. and 'Nationality Act as the
unmarried son of a United States resident alien. He was admitted to
the United States on July 6, 1963 upon. presentation of this visa. On
October 12, 1963 the respondent departed from the United States and
reentered on November 3, 1963, presenting his alien registration receipt card issued to him as an alien previously lawfully admitted to
the United States for permanent residence. It. has been established
551

Interim Decision #1572
that the respondent was married under the rites of the Catholic
Church by a religious ceremony on December 27, 1962 to Anna Maria
Salomon at Belluno, Italy. This religious marriage preceded the
first admission of the respondent to the United States on truly 6,
• 1963. Upon his return to Italy the respondent's religious marriage
was civilly recorded on October 28, 1963 'and he has now petitioned
for preference immigration classification for his wife to come to the
United States.
.Section 203 (a) (3) of the Immigration and Nationality Act provides for the issuance of preference quota immigrant visas to aliens
who ate the unmarried sons of aliens lawfully admitted for permanent residence. Section 101(a) (39) of the Immigration and Nationality Act (8 U.S.C. 1101(a) (39)) defines the term "unmarried,"
• when used in reference to any individual as of any time, to mean an
individual who at ouch time is not married, whethei• or not pre-,

viously married. The issue in the case is whether the respondent is
to be considered as "unmarried" at the time he entered the United
States as the "unmarried" son. of a lawfully resident alien as required by the-terms of his section 203(2•(3) visa.
There have been introduced into the record the Concordat of 1929
between the Italian-Government and Holy See, copies of the Italian
marriage laws and the testimony of Dr. Enrico L. Pavia, an expert
on Italian law. Article 5 of Italian Law No. 847 of May 27, 1929,
'Provisions for application of the part concerning marriage in the •
Concordat of February 11, 1929 bettmen the HOly Sad and Italy"
(Ex. 8) provides as follows:
A marriage performed by a minister• of the Catholic religion in accordance
with the rules of canon law shall, from the day on which it is celebrated, prodnee■ the same effects as a civil marriage when it has been recorded in the
registers of vital statistics in accordance with the provisions of arts. 9 et seq..

The expert witness testified that it is the recording which makea
the marriage exist for civil law; and -that the reporting-is not merely
a ministerial act but that the transcription has a constitutive effect.
Based upon the totality of the extensive exhibits and from the Ustirirony . of 'the expert witness, the special inquiry *racer has been un• able to find anything to contradict the opinion of the expert witness
to the- effect that the respondent was unmarried under Italian law
• when lie first entered the United Stites. Conceding that it might
well be that the congressional intent with reference to the term "unmarried son" of . a. lawfully resident alien as contained in section
203(a) (3). Ofthe Inimigration and Nationality Act was being Circimilienred. in the'instant 'case, the special inquiry officer felt he was
not free to here endeavor to determine tongressionitl intention be-.
552•

Interim Decision #157.q
cause of the lack of ambiguity in that section of the law and he was
restrained from attempting to decide whether our public policy is
being circumvented by the factual situation here presented. He
concluded that the Government had not established by the required
reasonable, substantial and probative evidence that when respond;
ent procured his preference immigrant visa and first entered the
United States he was other than "unmarried" and accordingly he
is not deportable on the charge in the order to show cause nor upon
the lodged charge. 'The special inquiry officer therefore •terminated
the proceedings.
We are not persuaded that the conclusion of the special inquiry
officer is correct. The respondent, when he executed his' mmigrant
visa application on April 2, 1963, submitted a certificate that he was
"celibe" or single dated. March 3, 1962 and was aware of the contents of Form 1r5-548 which warned the applicant that he would lose
his quota preference status if he should marry prior to his application for admission at a, port of entry into the United States and that
he would then be subject to exclusion therefrom (Er. 2). The respondent and his wife are both of the Catholic faith. The respondent testified that he had known his wife for five or six years before
he married; that they had been ezig,aged for two or three years previosuly; and that at the time he applied for his visa on April 2,
1963 he had already been married in church on December 27, 1962 at
a time when his wife was pregnant. He admitted that subsequent, to
his marriage on Dee-amber 27, 1962 he lived together with his wife
as husband and wife, that their child was born June 5, 1963 and that
he departed to the United. States on July 6, 1963. He was aware that
if he were to be married civilly he could not come . to the United
States. • However, he prevailed upon the ordinary or bishop to de-.
lay the recording of -the marriage, based upon his understanding that
the marriage would have no civil or legal effect until it. was so recorde4. Therefore, we have a situation where the respondent was:
fully aware that he would .be unable to come to the United States if'
he,was married, that he underwent 'a religious marriage and lived together with his 'wife as husband. and wife-and had a..chrld before
,he came to the United States.
When section 203(a) (3) of the Itamigration and Nationality Act
was "amended-by section 2 of the Act of September 22, 1959, 73 Stmt.
644; by striking the word "children" and adding the phrase "unmarried sons or daughters," the recognized purpose of the amend:
ing bill (H.R. 5896) . wIts "to reclassify close relatives of United
States citizens and aliens admitted for perman'eht residence' so as. to_

553.

.

Interim Decision

#1572

expedite•the reuniting of certain famitics.rn It was explained that

section 2 of the bill would grant thircypreference status to the , unmarried sons and daughters, over 21 years of age, of lawfully residing aliens, a proposal based upon the belief that such unmarried children, althOugh not minors, still belonged to the family unit.'
Thus, it is clear that Congress, in its amendment to Section 203
•a) (3), intended to benefit a primary family group,,consisthig of
the mother, father and the unmarried sons and daughters. It seems
equally clear that Congress did not intend to benefit one who, by
entering into a marriage relationship while still in the foreign
country, has voluntarily removed himself from that primary group.

Congress did not intend that the benefits of third preference status
extended to unmarried sons or daughters. who were regarded as part
of the primary family unit, were to be easily circumvented by an
alien who entered into a marriage relationship which because of

some technicality of foreign law did not become formally final until
after the alien had been admitted as the unmarried son or daughter
Of a citizen or permanent resident alien. Thus, in passing on the
question of whether an alien was entitled to a nonquota immigrant
visa under Section 4 of the Immigration Act of 1924, as amended
by the Act of May 29, 1928, which provided that the term "nonquota immigrant" included the wife or husband of a citizen of the
United States, the Department of State concluded that in the absence of evidence of fraud or bad faith there would appear to be no
. reason for questioning the validity of a religious marriage when it
Is shown that ah American citizen and alien woman have agreed to
become man and wife; that the religious ceremony had been publicly performed in the celebration of such a contract, and that the
parties have regarded themselves as married and thereafter assumed
the duties and obligations of the marital status.'
Until 1929 there was only one type of Marriage recognized for
purposes of Italian civil law, namely, a civil marriage performed
in accordance with the Italian law. In 1929 a treaty was concluded
between the Vatican and the Italian State, known as the Lateran
Pacts, the net effect of which was to bring the canon law into conformity with the requirements imposed by Title 6 Of Book 1 of
the Civil Code regarding marriages. From the provisions of Italian law it is a fair conclusion that until the religious ceremony is
recorded the marriage is not, civilly speaking, complete. However,
-

IBM. 682, 80th Conga, ist Seas.

nne

'86 Cong. Rec.
(1m).
' See Opinion of the Secretary of State under date of September 22,
as the ease of Lore, Gloom shay darpetta.

554

1032

. Interim Decision. #1572.
, it is also clear that the tranOcription into' the register of vital statistics will , always produce the civil effects .from the day on which the
marriage was performed (Ex, 7 & Ex. 8); 'It is apparent, and has
been conceded by the' expertwitness except for certain -cases not
here relevant, that the recording of the religious marriage has a retroactive or Moto pro buns effect as of the date of the religious
marriage.
However, the Italian law nowhere provides that a religious marriage is invalid until it is recorded. Even though -the marriage is
not recorded, in order to he dissolved, it must be annulled. Article
14 of Law 847 provides that the marriage certificate may be recorded
at any time by - any interested poison, even after the death of one
of the parties, It is equally apparent that after the religious ceremony has been performed the parties are not regarded as living in
sin. Thus, the marriage has betivieligious and civil effects, particularly in a religious country like Italy. With regard to marriages and the effect to be given to them for
immigration purposes, We have adopted a Federal policy of examining the marriage notwithstanding that such marriage is considered
valid under the domestic law of the jurisdiction where performed.
So, where an alien's -marriage to - a United States citizen feinale
spouse was contracted solely tai facilitate his admission to the United
States, it .did not entitle him. to the -issuance of a noliqueta visa
where no bona fide husband and wife relationship was intended and
such marriage is deemed invalid for immigration purposes.' In the
ease of United States v. Diogo, 320 F.2d 898 (2d Cir. 1963) although
the court refused to convict on a charge of false representation in

violation of 18 U.S.C.A.. "871, 1001 and 1546, the court -nevertheless
staled that Congress might adopt Federal standards of bona fides of
marriage for the limited purpose of denying immigration priorities
to persons whose marriages dwnot meet the standard; and that that '
'standard embodied in .congressional understanding of the terms
"marriage" or "spouse" as they 'appear in immigration statutes is
a relevant standard . to apply in exclusion or deportation proceedings.' Thus, the'courti have not been hesitant in applying a Federal
standard for determining the validity of a marriage for immigration
purposes even though under the domestic law of the jurisdiction
where the marriage was 'performed such marriage was valid.
'Matter of M—, 8 L & N. Dec. 217; Lumen V. United States, 344 U.S. 604;
Giannoulfas v, Landon, 228 F.2d 356 (9th Cir. 1955) ; United States v. Rubenstein, 151 F.28 915 (2d Cir., 1945), cert. den. 326 U.S. 766.
See Toliantis v. Immigration and Naturalization Service, 352 F.2d 763%
(9th Cir., 1965).

555

Interim Decision #1572
The question of the validity - of religious marriages, in countries
where recordation or registration is essential to their validity, has
previously received consideration and they have been held to be valid
in certain cases and invalid in. others. Thus, where the evidence of
record indicates that the foreign religious marriages were entered
into in good faith and recognized by the parties thereto, the validity
of the marriage was presumed in the absence of-evidence to the contrary, reliance being had on the presumption in favor of the valid- ity of a marriage and that the formalities of law have been complied with. Conversely, where the evidence of record indicated that
the foreign religious marriage was not entered into in good.faith

or was not recognized by the parties thereto, the usual legal presumption was deemed to have been rebutted by such evidence of .
lack of good faith or nonrecognition and the marriage was deemed
invalid. The philosophy underlying these holdings appears to stem

from an opinion of the Solicitor of Labor of September 14, 1933,
dealing with cases involving applications for certificates of derivative citizenship where it was stated that if the person has always
believed that his parents were lawfully married and that he was a,
legitimate child, no public advantage would be gained from making
a search of the laws of some foreign state in order to prove that his
parents were living in sin and that he was a bastard. Generally,
where parties have held themselves out to be man and wife, have
lived together over a period of time and have considered themselves
married, where there have been children born to the union, particularly where there has been the color of a. marriage cei emony, for .
immigration purposes this is a good marriage, even though proof
of its formal perfection may be lacking.°
In summary, the religious marriage of the respondent had no
civil effect until recorded but such recordation made the marriage
effective as of the date of the celebration. of the religious marriage
which was prior to the entry of the respondent into the United
States. The intent of Congress in according third preference status
to the "unmarried" son of a citizen or lawful resident alien makes it
clear that Congress set up a Federal standard with regard to the
term "unmarried," and that reference to foreign law cannot be used
to defeat the clearly expressed congressional intent. The respondent
wax not, under Italian law, "unmarried" in the true sense of the
word for immigration. purposes When he applied for admission to the
-

°Matter of X—, 7 L & N. Dec. 492 (Italy); Matter of Duran-Montoya,
10 I. & N. Dec. 767 (Colombia); also see unreported Matter of Santorelli,
A-11476957 (August 24, 1902) (Italy); and unreported Matter of Santoro,
A.-12219024 (April 29, 1903), (Italy). °

556

Interim Decision. #1572,
United States. He was fully aware that he was required to remain
"unmarried" to 'continue to qualify for third preference status. The
absence of a. formal perfection of the marriage, under the circumstances present herein, will not be permitted to evade the intent of
Congress. It is concluded that the respondent is subject to deportation upon the charge contained in•the order to show cause and upon
the- lodged charge.
ORDER: It is ordered that the appeal of the trial attorney he
sustained and that the respondent be deported to Italy pursuant to
law upon the charge contained in the order to show cause and upon
the lodged charge.

557


Interim Decision #2128

MATTER OF PAYAN
In Deportation Proceedings
A-12618819

Decided by Board March 3, 1972
(1) An ex parts statement of a Government witness is not, for lack of cross–

examination, precluded from meeting the test of clear, convincing and unequivocal evidence as enunciated in Woodby v. I. & N. 8., 385 U.S. 276 (1966), where
full opportunity to take depositions was afforded but declined.
(2) Where evidence contained in the record of her conviction of conspiring to aid
and assist aliens, coupled with evidence developed during the deportation
hearing (indicating the ongoing conspiracy), establishes that the brief absence
in Mexico on April 26, 1966, of respondent, a permanent resident alien, was for
a purpose in contravention of the immigration laws, such departure does not
come within the ambit, of Rosenberg v. Flenti, 374 US_ 499 (1M), and upon
return to the United States she made an "entry" on which to predieate
deportability under section 241(a)(13) of the Immigration and Nationality Act.
CHARGES:
Order: Act of 1952—Section 241(aX13) [8 U.S.C. 1251(a)(13)j—Prior to entry
assisted alien to enter the United States illegally.
Section 241(a)(13) [8 U.S.C. 1251(aX13)1--Within five ears
of entry assisted alien to enter the United States
illegally.
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Jack Wasserman, Esquire

Irving A. Appleman

Warner Building
Washington, D. C. 20004
(Brief filed)

Appellate Trial Attorney
(Brief filed)

Counsel of Record:
Manuel Lopez, Esquire
1725 West Beverly Boulevard
Los Angeles, California 90026

The respondent, a married female alien, 49 years of age, a native
and citizen of Mexico, has been found deportable under section
241(aX13) in that prior to her entry and within five years after entry,
she knowingly and for gain, encouraged, induced, assisted, abetted,
or aided two other aliens to enter or to try to enter the United States
in violation of law. She appeals from an order entered by the special
58

Interim Decision #2128
inquiry officer directing her deportation to Mexico on the charges
stated in the order to show cause. Exceptions have been taken to the
finding of deportability.
The respondent was admitted to the United States for permanent residence at the port of San Ysidro, California on July 8, 1961.
She was readmitted as a returning resident alien at the same port
on or about April 26, 1966. The respondent admits allegations 1
through 5 which are concerned with alienage, her nationality and
her entries in 1961 and 1966. She denies allegations 6 through 18
which are concerned with the charges that during December of
1965 and February of 1966, she "knowingly and for gain, encouraged, induced, assisted, abetted, or aided" two Mexican aliens to
enter or try to enter the United States in violation of law.
The respondent was convicted in the United States District
Court for the Southern District of California on June 3, 1968 "upon
a finding of guilty" of the offense of conspiring to "defraud the
United States of and concerning its governmental function and
right of administering the Immigration Law," 18 U.S.C. 371, in
that she did "wilfully, knowingly and unlawfully obtain an immigrant visa" for unindicted co-conspirators Benjamin NaranjoPerez and Jesus Gomez -Ramirez" by means of false, fraudulent.
and misleading misrepresentations" in violation of 18 U.S.C. 1546.
Count 5 of the indictment relates to unindicted co-conspirator
Benjamin Naranjo -Perez, a Mexican national mentioned in allegations 13 through 18 of the Order to Show Cause. Count 6 of the
indictment relates to unindicted co-conspirator Jesus GomezRamirez, a Mexican national mentioned in allegations 6 through
12 of the order to show cause. The objects of the conspiracy and
the overt acts alleged to effect the conspiracy charge the respondent with arranging sham marriages between the subject aliens
and citizens of the United States for a substantial fee and for the

sole purpose of obtaining for the aliens an immigrant visa for
entry into the United States to join their alleged citizen spouses.
Among the overt acts alleged in both counts 5 and 6 are the
payment of money to the respondent by the aliens and the
delivery of spurious documents for presentation by the aliens to
the United States consul.
The evidence of record has been fully discussed in the opinion of
the special inquiry officer. The Government presented as witnesses an investigator of the Immigration and Naturalization
Service who prepared the exhaustive report entered as Exhibit 7
and Jesus Gomez-Ramirez, a Mexican national and the unindicted
co-conspirator referred to in count 6 of the indictment entered as
Exhibit 4. The investigator testified that he was present during
the trial of the respondent in the United States District Court and
59

Interim Decision #2128
at the pretrial interrogation of the co-conspirators Benjamin
Naranjo-Perez and Jesus Gomez-Ramirez by the Assistant
United States Attorney. He. stated that the testimony of both
conspirators was substantially the same as their sworn statements entered as Exhibits 5 and 6 in the record (pp. 23 and 24).
The investigator further testified that he took the sworn statement from the respondent which is attached to Exhibit 7 as part
B, and dated October 17, 1966. The respondent in her statement
testified that she had never "assisted citizens of Mexico in obtaining visas"; that she does not know whether the alien Benjamin
Naranjo-Perez obtained or is attempting to obtain a visa to enter
the United States; that she knows Benjamin Naranjo-Perez
because "I have loaned him money in Mexico"; and that the last
time she was in Mexico, April 26, 1966, she remained in Tijuana
"about two or three hours" (Ex. 7, part B, pp. 9-10 and 12).
A summary of the testimony of the witness Jesus GomezRamirez at the hearing and in his statement is as follows: He first
met the respondent in Tijuana, Mexico through a taxi cab driver
who told him about a lady who could arrange immigration documents for entry into the United States. The cab driver took him to
the respondent who agreed to obtain the required documents for
the sum of $450 and he paid her $40 with the understanding that
additional money would be paid when she delivered the required
documents. Thereafter, the respondent delivered to him a birth
certificate for one Ysaura 0. Perez, born in Watts, California on
August 9, 1935, a marriage certificate from the State of Guanajuato showing his marriage to Ysauro Perez-Orasco in Penjamo,
Mexico on February 4, 1965, an affidavit of support allegedly
signed by Ysauro Perez and an offer of employment in the United
States.
An immigrant visa based on the spurious documents was issued
to the witness by the consul at Hermosilla, Mexico on October 18,
1966. When the witness presented the visa for entry at San Luis,
Arizona on October 21, 1966, he was told by the immigration officer

that it would be necessary for his citizen wife to appear with him.
Unable to present his citizen wife, the witness called the respondent on two occasions and was finally told not to call anymore (pp.
76, 78 and 84). He then returned to the border and told the
immigration officer that he could not present his citizen wife
because he "did not know her" (p. 81). He also informed the
immigration officer that he had paid the respondent to obtain the
required documents for his immigrant visa (p. 86). The witness
Jesus Gomez Ramirez identified the respondent as the woman he
saw in Tijuana, 11/lexica when he was "brought" to the house by
the taxi driver (p. 96) and .to whom he paid some $350 for the
60

Interim Decision #2128
spurious documents he used to obtain the immigrant visa he
presented when he applied for admission on October 21, 1966. He

further testified that the affidavit signed by him on January 20,
1967 and a record of a sworn statement made by him on November
16, 1966 are true and correct (pp. 30-31 and Ex. 6).
Section 241(aX13) of the Immigration and Nationality Act makes
deportable any alien who:
prior to, or at the time of any entry, or at any time within five years after
any entry, shall have, knowingly and for gain, encouraged, induced, assisted,
abetted, or aided any other alien to enter or to try to enter the United States
in violation of law.

The fact that the respondent was convicted of conspiring to
defraud the United States of its right to administer the immigration laws by committing the offense defined by 18 U.S.C. 1546
merely establishes that she did "encourage and assist" the aliens
Bejamin Naranjo-Perez and Jesus Gomez-Ramirez to obtain immigrant visas by furnishing them with spurious immigration
documents. Her conviction does not establish that she assisted
these aliens "for gain," an essential element of section 241(a)(13) of
the Act.
The special inquiry officer finds that the evidence of record
establishes the respondent's deportability on both of the charges
contained in the order to show cause and that such evidence is
clear, convincing and unequivocal (p. 11, special inquiry officer's

opinion).
The special inquiry officer also finds the testimony of the
respondent to be unworthy of belief (p. 10, special inquiry officer's
opinion). The special inquiry officer states in his opinion that the
respondent's conviction in the United States District Court of
California on June 3, 1968 for conspiring with others to commit
offenses against the United States in violation of 18 U.S.C. 371
"establishes all of [the] elements required for deportability under
section 241(a)(13) of the Immigration and Nationality Act, in that
it establishes that the respondent knowingly and for gain encouraged, induced, assisted, abetted, or aided an alien to enter or to try
to enter the United States in violation of law" (p. 5, special inquiry
officer's opinion).
Counsel contends that a conviction under 18 U.S.C. 371 for
conspiring with others to fraudulently obtain documents required
for entry into the United States (18 U.S.C. 1546) does not require
proof that the respondent knowingly received money for her
activity in the conspiracy. We agree with counsel that the respondent's conviction for conspiring to violate the substantive offense
defined by 18 U.S.C. 1546. in and of itself, does not establish that
the unlawful activity on the part of the respondent as recited in
61

Interim Decision #2128
the indictment was entered into "for gain." We find, however, that
the special inquiry officer's statement quoted above does not
amount to prejudicial error because in addition to the allegations
set forth in counts 5 and 6 of the indictment, there is supporting
evidence in the record that the respondent did obtain the monetary considerations referred to in both counts in return for
knowingly encouraging, inducing, assisting, abetting, or aiding the
alien Jesus Gomez Ramirez to "try to enter" the United States
(count 6) and the alien Benjamin Naranjo-Perez to enter the
United States (count 5) in violation of the immigration laws.
We fail to see any validity in counsel's argument that the order
to show cause is defective because the factual allegations fail to
properly notify the respondent of the exact charges she had to
meet. He argues that there is a "material deviation" between the
factual allegations of the order to show cause and the conclusions
of law as to deportability because factual allegations 11 and 17
states that the two aliens "applied for admission" to the United
States "on the basis of the documents provided [by respondent]
and the immigrant visa[s] fraudulently obtained" by them
whereas the basis for both grounds of deportability under section
241(a)(13) of the Aet is that the respondent "encouraged, induced,
assisted, abetted or aided" the two aliens "to enter or to try to enter
the United States in violation of law." (Emphasis supplied.) Counsel
suggests that the case be remanded for an amendment of the
order to show cause.
The order to show cause fully complies with 8 CFR 242.1 in that,
inter alia, it informs the respondent "of the acts or conduct alleged
to be in violation of the law," including "the statutory provisions
alleged to have been violated." The order to show cause merely
enables the Immigration Service to obtain direct jurisdiction over
the person of the alien. It sets in motion an inquiry which may
follow broad lines, possibly eliminating the presently alleged
grounds for deportation and substituting others, Hoh Yeh Sze v.
INS, 389 F.2d 978, 981 (C.A. 2, 1968); Haymes v. Landon, 115 F.
Supp. 506, 508 (S.D. Cal., 1963). We note that items 6 and 13 of the

order to show cause allege in substance that the respondent made
an agreement with both aliens that she "would aid and assist
[them] to enter the United States" in violation of law for a
monetary consideration. (Emphasis supplied.) A remand of the
case is not warranted for the purpose asserted by counsel.
We will next consider counsel's argument that on this record
neither of the charges can be sustained. His argument with regard
to both charges is based on the premise that under the Supreme
Court's decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963)1, the
respondent made no "entry" when she returned to the United

62

Interim Decision #2128
States following a brief trip to Mexico of several hours on April 26,
1966. Regarding the first charge (prior to entry) which relates to
the alien Benjamin Naranjo-Perez, who entered the United States
on February 16, 1966, counsel maintains that this charge cannot
be sustained because (1) there was no subsequent entry of the
respondent on April 26, 1966 for the reason that there is no clear
and convincing evidence that she made a "meaningful departure"
within the ambit of Fleuti, supra footnote 1, and (2) the ex parts
statement (Ex. 5) of the alien Benjamin Naranjo-Perez without
cross-examination does not amount to clear, convincing and unequivocal evidence of deportability as required by Woody v. INS,
385 U.S. 276 (1966).
Counsel's claim that the respondent under Fleuti made no
"entry" on April 26, 1966 within the meaning of section 101(a)(13)
of the Act, 8 U.S.C. 1101(a)(13), will be considered in our discussion
of the second charge contained in the order to show cause, to wit,
that within five years after entry the respondent assisted the alien
Jesus Gomez-Ramirez to "try to enter" the United States. However, we will at this time dispose of counsel's argument that the ex
parte statement of the alien Benjamin Naranjo-Perez without
cross - examination does not amount. to clear, convincing and unequivocal evidence of deportability as required by Woodby v. INS,
supra.
This argument is based on the premise that the respondent's
representative was not afforded an opportunity to take depositions
from the alien Benjamin Naranjo-Perez as provided by 8 CFR
242.14(e). The alien Benjamin Naranjo-Perez resided more than
100 miles from Los Angeles, California, the situs of the hearing.
Counsel reasons that since the alien Benjamin Naranjo-Perez was
not subjected to cross-examination, the evidence contained in his
sworn statement (Ex. 5) does not comply with the clear, convincing
and unequivocal rule enunciated in Woodby, supra.

We find no merit to counsel's argument. A review of the record
establishes that the respondent's representative was afforded an
opportunity to take depositions from the alien Benjamin NaranjoPerez (pp. 12-15, and 16). When questioned by the special inquiry
The Supreme Court in the case of Rosenberg v. Fleuti had before it the issue
of whether the return of a resident alien to the United States following a brief
casual trip across the border amounted to an "entry" as that term is defined in
section 101(a)(13) of the Immigration and Nationality Act. The Court stated in its
opinion that one of the criteria to be used in reaching a conclusion as to whether
the alien had made a "meaningful departure" within the meaning of the statute
was a determination as to whether the departure was for the purpose of
accomplishing some object which is itself contrary to some purpose reflected in
our immigration laws.

63

Interim Decision #2128
officer during the hearing of January 16, 1969, she replied "I
intend to do that" (p. 16). At page 26 of the record, the respondent's
representative agreed after an off-the-record discussion that she
would delay her decision as to whether she desired to have the
testimony of Benjamin Naranjo-Perez taken by deposition until
after the testimony of Jesus Gomez-Ramirez.
The question of the production of the witness Benjamin. NaranjoPerez was again raised at the hearing of March 6, 1969 (p. 96). The
respondent's representative again expressed a desire to interrogate the witness and informed the special inquiry officer that since
she would in the near future be in Northern California (Santa
Cruz), she would prefer to interrogate this witness personally (pp.
98, 99). When it developed that the interrogation would be scheduled for an immigration office nearest the residence of the witness,
the respondent's representative decided "to dispense with the
written deposition" and waived the cross-examination of the witness Benjamin Naranjo-Perez (p. 99).
The record establishes, contrary to counsel's claim, that the
respondent's representative was afforded an opportunity to take
written depositions from the witness Benjamin Naranjo-Perez.
The remaining question concerns whether his ex parte statement
amounts to clear, convincing and unequivocal evidence of deportability as required by Woodby. 8CFR 242.14(e) provides in part that
the special inquiry officer "may receive in evidence any ... written
statement which is material and relevant to any issue in the case
previously made by ... any other person during any investigation,
examination, hearing, or trial." The courts have long sanctioned
this practice in immigration proceedings, Navarrette-Navarrette v.
Landon, 223 F.2d 234, 237 (C.A. 9, 1955), cert. denied 351 U.S. 911;
Glaros v. INS, 416 F.2d 441, 443 (C.A. 5, 1969). Cf. Castillo-Lopez v.
INS, 437 F.2d 74, 75 (CA. 5, 1971). We find nothing in Woodby
which precludes the use of an ex parte statement under the
circumstances presented by this case to establish that "the facts
alleged as grounds for deportation are true," Woodby v. INS, 385
U.S. 276, 286 (1966).
The second charge in the order to show cause relates to the
assistance rendered by the respondent to the alien Jesus GomezRamirez which enabled him to obtain an immigrant visa which he
presented when he applied for admission to the United States on
October 21, 1966. Counsel contends that since his application for
entry was more than five years after the respondent's original
entry on July 8, 1961, the charge that "within five years after
entry" the respondent assisted this alien "to try to enter the
United States" cannot be sustained as there was no "entry" of the
respondent on April 26, 1966. Counsel also argues that the respond-

64

Interim Decision #2128
ent did not aid or assist the alien Jesus Gomez-Ramirez to "try to
enter" the United States until he actually applied for admission on
October 21, 1966 and for this reason, the deportable offense charged
was not committed within five years of the repondent's entry on
July 8, 1961.
The Service maintains that it is clear from the language of
section 241(a)(13) that where the illegal encouragement, inducement or assistance of an alien for gain is manifested by overt acts
which occur within five years of the entry of the respondent, then
the five-year provision of the statute has been satisfied. The
Service claims that there is no requirement in the statute that the
"encouraged" or "induced" alien actually "enter" or "try to enter"
the United States within this five-year period.
We have carefully considered the arguments and briefs submitted by counsel for the respondent and the appellate trial attorney.
The special inquiry officer's finding that both charges are sustained turns on the theory that the respondent made an "entry"
when she returned to the United States from Mexico on April 26,
1966. He states in his opinion that the respondent's return to the
United State does not come "within the purview" of the Supreme
Court's decision in Rosenberg v. Fleuti, supra footnote 1, because

"as indicated in the record of conviction, Exhibit No. 4," the illegal
activities of the respondent commenced in April 1965 and continued up to the date of the indictment, September of 19R7. The
special inquiry officer further states in his opinion at page 7:
... the evidence contained in the record [of conviction] is sufficient to
etablish that at the time of the respondent's trip to Mexico on April 26, 1966
she was still involved in those [illegal] activities.

We do not agree with the special inquiry officer that the
evidence contained in the record of conviction, entered as Exhibit
4, is sufficient to establish that the respondent's departure on
April 26, 1966 was for the purpose of engaging in an illegal activity
in violation of the immigration laws. However, this evidence, when
coupled with the evidence developed during the hearing, establishes to our satifaction that the respondent's departure on that

date was for an illegal purpose.
The additional evidence in the record which supports our conclusion that the respondent made a "meaningful departure" may be
summarized as follows. The alien Jesus Gomez-Ramirez testified
during the hearing that the record of the sworn statement made
by him on November 16, 1966 and entered as Exhibit 6 is true and
correct (p. 31). He stated under oath on this occasion (p. 5 of
statement attached to Ex. 6):
... About two months later (referring to February 1066) 7 some time in April
of 1966, I again returned to [respondent's] house in Tijuana, and she gave me a

65

Interim Decision #2128
marriage certificate from the State of Guanajuato, Mexico, that said that I
married YSAURO PEREZ-OROSCO in Penjamo [Guanajuato] on February 14,
1965. I well knew that this was a fraudulent document. (Emphasis supplied.)

The witness Jesus Gomez-Ramirez further stated that following
his first meeting with the respondent in February of 1966, she
mailed him a birth certificate "for one YSAURO 0. PEREZ and it
showed that she was born in Watts, California, on August 9, 1935."
Attached to Exhibit 7 are copies of several notebooks which
were in the possession of the respondent when she applied for
admission at the port of San Ysidro, California on April 26, 1966.
One of these notebooks contains the name of the witness Jesus
Gomez-Ramirez and written directly under his name is the name
of Ysauro 0. Perez "nacio en Los Angeles, California, Agosto 9,
1935."
A conspiracy which contemplates, as this one does, a continuity
of purpose and a continued performance of acts, is presumed to
continue until there has been an affirmative showing that it has
terminated, United States v. Etheridge, 424 F.2d 951, 964 (C.A. 6,
1970) and cases cited. The possession of a notebook at the time of
the respondent's application for admission, which notebook contains the name of an assisted alien, the name of his immigration
wife and her place and date of birth, when coupled with the
testimony of the assisted alien that the respondent "some time in
April of 1966" had given him supporting immigration documents in
Mexico based on the same information recorded in that notebook,
does not amount to an afirmative showing that the conspiracy had
terminated prior to the respondent's application for admission on
April 26, 1966. Under the circumstances, we have no difficulty in
reaching a determination on this record that the respondent's
departure on the occasion in question was for the purpose of
accomplishing some object which is itself contrary to some policy
reflected in our immigration laws. The nexus between the credible
evidence of record and the overt acts set forth in the record of the
respondent's conviction could lead to no other conclusion. We
affirm the special inquiry officer's conclusion that the respondent
made an entry on April 26, 1966.
We conclude that there is clear, convincing and unequivocal
evidence that the facts alleged as grounds for deportation are true.

The record of the respondent's conviction establishes that she did
"encourage and assist" the aliens Benjamin Naranjo-Perez and
Jesus Gomez-Ramirez "to enter or try to enter" the United States
by furnishing them spurious documents with which they obtained
immigrant visas. The ex parte statement of Benjamin NaranjoPerez and the testimony of Jesus Gomez-Ramirez is credible
evidence that she engaged in this activity "knowingly and for
66

Interim Decision #2128
gain." There is affirmative evidence that the unlawful activity of
the respondent in encouraging and assisting the alien Benjamin
Naranjo-Perez to enter the United States took place "prior to" the
respondent's "entry" on April 26, 1966. There is also affirmative
evidence that the unlawful activity of the respondent in encouraging and assisting the alien Jesus Gomez-Ramirez to "try to enter"
the United States was accomplished "within five years after Ethel
entry" of the respondent on April 26, 1966. All of the elements of
section 241(a)(13) have been established by credible evidence. We
find the respondent deportable as charged.
ORDER: It is directed that the appeal be and the same is
hereby dismissed.

67


Interim Decision #2470

MATTER OF DELA. CRUZ
In Visa Petition Proceedings

A-20985122
A-20985126

Decided by Board February 11, 1976
(1) Jurisdiction of the person, as well as jurisdiction over the subject matter, is a prerequisite for a valid adoption. Counsel's contention that "proper service of process" or
"consent or waiver" can be substituted for the necessary personal jurisdiction is rejected.
(2) Since beneficiaries have not resided in Hawaii, were not born there, and have not been
in the legal custody of a Hawaiian child-placing agency, their adoption in Hawaii by
petitioner does not appear to meet the requirements of the applicable Hawaiian statute
(Chapter 573-1) and, therefore, is not valid for immigration purposes. Moreover, there
is no evidence that there has been compliance with the two -year residence requirement

of section 101(b)(1)(E) of the Immigration and Nationality Act, as amended, either prior
to or subsequent to the alleged adoptions. Consequently, beneficiaries are ineligible for
immediate relative classification as the adopted children of the citizen petitioner.
ON BEHALF OF PETITIONER: B. Martin Luna, Esquire
2103 Wells Street
Wailuku, Maui, Hawaii 96793

The United States citizen petitioner applied for immediate relative
status for the beneficiaries as his adopted children under section 201(b)
of the Immigration and Nationality Act. In a decision dated February
13, 1975, the district director denied the petitions on the ground that a
valid adoption had not taken place inasmuch as both beneficiaries "are
and have always been in the Philippines." The petitioner appealed. The
appeal will be dismissed.
The beneficiaries, both male, were born in the Republic of the Philippines on March 14, 1960 and August 10, 1960, respectively. The application lists both their addresses as in the Philippines. Counsel does not
dispute that they never have been in the United States.
As proof of the adoptive relationship, the petitioner has submitted
two decrees, issued by the Family Court, Second Circuit, State of
Hawaii, on October 30, 1972, purporting to be effective retroactively to
August 10, :1972. Neither decree makes mention of the physical location,
residence or domicile of the children. Neither is there any recital as to
the court's jurisdiction over their persons.
580

Interim Decision #2470
Section 101(b)(1)(E) of the Act defines "child" to include unmarried
persons under twenty-one years who have been adopted while under the
age of fourteen years and have thereafter been in the legal custody of,
and have resided with the adopting parent or parents for at least two
years.
The pertinent Hawaiian statute, Chapter 573-1, reads, in part, as
follows:
••
Who may adopt; jurisdiction; venue. Any proper adult person, not married, or any
person married to the legal father or mother of a minor child, or a husband and wife
jointly, may petition a judge of the family court in which the child resides or was born or
in which a child-placing organization . having legal custody . . . of the child is located, for leave to adopt a minor child. . . .
The beneficiaries have not resided in Hawaii, were not born there,
and have not been in the legal custody of a Hawaiian child-placing
agency. Thus, it appears that the petition has not even 'met the requirements of the applicable Hawaiian statute.
The district director was correct in his conclusion that jurisdiction of
the person, as well as jurisdiction over the subject matter, is a prerequisite for a valid adoption. We reject counsel's contention that
"proper service of process," or "consent or waiver" can be substituted
for the necessary personal jurisdiction.
Moreover, there is no evidence that there has been compliance with
the two-year residence requirement of section 101(b)(1)(E), either prior
to or subsequent to the alleged adoption. Consequently, the petitioner
has failed to sustain his burden of establishing that the beneficiaries are
his adopted children for purposes of the immigration laws. The decision
of the district director was correct.
The appeal accordingly will be dismissed.
ORDER: The appeal is dismissed.

581


Interim Decision #2936

MATTER OF FORSTNEEt

In Deportation Proceedings •

A-30461480
Decided by Board February 24, 1988
Expungement of a narcotics conviction pursuant to section 137.225 of the Oregon Revised
Statutes does not eliminate the conviction for purposes of deportation because that statute
is not a state counterpart to the federal first offender statute, 21 U.S.C. 844(b)(1).
CHARGE:
Order. Act of 1952—Sec. 241(a)(11) [8 U.S.C. 1251(a)(11))—Convicted of a narcotics
violation
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:
Gerald II. Rubinson, •squiie

Kendall D. Warren

1001 S. W. Fifth Avenue, Suite 1500
Portland, Oregon 97204

General Attorney

BY:

Milhollan, Chairman; Maniatis, Dunne, and Vacca, Board Members

The respondent has appealed from a decision of the immigration judge
dated November

9, 1979, denying his request to terminate deportation

proceedings and ordering him deported from the United States. The
appeal will be dismissed.
In a decision dated November 2, 1976, the immigration judge found
the respondent deportable under section 241(a)(11) or the Immigration
and Nationality Act, 8 U.S.0 1251(a)(11), by virtue of his conviction in
the Circuit Court of the State of Oregon for Lane County on December
1, 1975, of illegal furnishing of narcotics in violation of section 167.207 of
the Oregon Revised Statutes. The respondent's appeal from that decision was dismissed by an order of the Board on August 9, 1977, which •
was affirmed on petition for review. Forstner v. INS, 579 F.2d 506 (9
Cir. 1978). The respondent's petition for writ of certiorari was also
denied. INS v. Forstner, 99 S.Ct. 841 (1979).
• On February 28, 1979, the respondent filed a motion to reopen which
was granted by the Board on March 26, 1979_ At a reopened hearing,
the respondent argued that deportation proceedings should be terminated because the conviction on which his deportation order was based
374

Interim Decision #2936
had been expunged pUrsuant to seetion 137.225 of the Oregon Revised
Statutes.' Having reviewed the statute involved, the iminigration judge
concluded that it was not a counterpart to the federal first offender
statute, 21 U.S.C. 844(b)(1), because its application Was not limited to
convictions of first offenders. He further noted, that a conviction expunged
under the Oregon statute could subsequently be considered for pur' poses of determining eligibility for ether expungements, as well as in
certain instances in Civil proceedings. Thus he found that the respondent's
conviction was not eliminated for purposes of deportation.
In a well-reasoned brief on appeal, the respondent argues that the
Oregon statute should be considered a first offender statute and that
consequently his expunged conviction should no longer provide a basis
for deportation. Citing the criteria set forth in Matter of Kaneda, 16

I&N Dec. 677 (BIA 1979), he contends that the Oregon statute is a
counterpart to the federal statute because its purpose is to give a first
offender a second opportunity by eliminating the effects of is conviction
and because its benefits are limited to a small class of individuals consist' Section 137.225 provides in pertinent part:
(1) At any time after the Japan of three jearis from the date of pronouncement of
judgment, any defendant who has fully compliedwith and performed the sentence of the
court and whose conviction is described in subsection (5) of this section by motion may
apply to the ,court wherein that conviction was entered for entry of an order setting
aside the conviction.
(3) . . . Upon the entry of such an order, the applicant for purposes of the law shall hi
deemed not to have been previously convicted and the court shall issue an order sealing
the record of conviction and other official records in the ease, including the records of
arrest resulting in the criminal proceeding.
.(5) The provisions of subsection (1) of this section apply, to a conviction ot
(a) A Class C felony.
(b) The crime of pocsession of the narcotic drug marijuana when that crime was
•punishable as a felony only.
(a) A crime punishable as either a felony or a misdemeanor, in the discretion of the
court.
•
(d) A misdemeanor, including a violation of a municipal ordinance, for which a jail
sentence may be imposed.
(e) A violation described in ORS 167.207, 167.217 or 167.222.
.:
(6) The provisions of subsection (1) of this section do not apply to:
..
(b) A person convicted, within the 10-year period immediately preceding the filing
of his motion pursuant to subsection (1) of this section, of more than one offense,
excluding motor vehicle violations, whether the second or additional convictions nemirred
in the cam action in which the conviction as to which relief is sought occurred or in
another action. Notwithstanding subsection (1) of this section, a conviction which has
been set aside under this section shall be considered for the purpose of determining
whether this paragraph is applicable.. .

375

Interim Decision #2936
ing of those convicted of committing only minor offenses who have not
been otherwise convicted in the previous 10 years. lie further claims
that he would have been eligible for relief as a first offender if convicted
in a federal court and therefore should be treated in an equal manner to
others convicted i4 federal courts or in state courts which have counterpart first offender statutes.

We are unable to agree with the respondent's assertion that the Oregon expungement statute is a counterpart to the federal first offender
statute. Its language, unlike that of other statutes recognized as being
equivalent to the federal statute, does not parallel the provisions of 21
U.S.C. 844(bX1). See Matter. of Soda, 17 I&N Dec. 550 (BIA 1980);
Matter of Kaneda, supra; Matter of Haddad, 16 I&N Dec. 253 (BIA
1977); Matter of Werk, 16 I&N Dec. 234 (BIA 1977). In Matter bf Soda,
supra, we noted that the federal first offender statute and each of its
state counterparts provided for withholding of adjudication of guilt by
the court and discharge without a conviction upon successful completion
of probation. Cf. Matter of Zangwill, 18 I&N Dec. 22 (BIA 1981). We
found the first offender statutes to be distinguishable in this respect
from procedures for expunging an existing conviction.
• In order to be eligible for relief under the Oregon statute, an offender's
sentence must have been completed and 3 years must have elapsed since

pronouncement of judgment before a conviction may be set aside. This
procedure clearly differs from that set forth in the first offender statutes where no conviction exists. Since section 137.225 merely eliminates
the stigma of a convictiorr after fulfillment of the penalties imposed, it is
akftn to an expungement statute which we have long held will not eliminate a conviction for deportation purposes. See Matter of Golehan,
I&N Dec. 92 (BIA 1981); Matter of Moeller, 16 I&N Dec. 65 (BIA
1976); Matter of Varagianis, 16 I&N Dec. 48 (BIA 1976); Matter of
Tucker, 15 I&N Dec. 337 (BIA 1975), affd Tucker v. INS, 551 F.2d 313
(9 Cir. 1971); Matter ofEspinoza, 15•I&N Dec. 328 (BIA 1975); Matter
of Lindner, 15 I&N Dec. 170 (BIA 1975); Matter of Wo;ig , 12.1&N Dec.
721 (BIA 1968); Matter of Kelly, 10 I&N Dec. 526 (BIA 1964), affd
Kelly v. INS, 349 F.2d 473 (9 Cir.), cert. clorciecl, 382 U.S. 932 (1965);

Matter of A F , 8 I&N Dec. 429 (A.G. 1959).
The Oregon statute's applicability is also not restricted to only a small
class of offenders. Although the respondent argues that eligibility for
expungement of a conviction in Oregon is limited to persons convicted of
- certain minor offenses, section 137.225(5Xc) extends the provisions of
the statute to any crime, whether a felony or misdemeanor, which the
court in its discretion elects to expunge. Moreover, although the statute
limits eligibility for expungement to persons not convicted of another
crime in the previous 10 years, we are not persuaded that this provision
renders those to whom relief is available equivalent to first offenders.
-

-

376

Interim Decision #2986
We therefore conclude that section 137.225 of the Oregon Revised Statutes is not a state counterpart to the federal first offender statute.
We also find no merit in the respondent's argument that he should not
be penalized for having been convicted in a state court rather than a
federal court where he w9uld have been eligible for treatment as a first
offender.' That contention was previously addressed and rejected in
Matter of Golshan, supra. We noted there the Attorney Cencral's conclusion in .Matter of A-F-, supra, that Congress did not intend to permit
aliens convicted of narcotics violations to escape deportation on the
basis of a state procedure authorizing a technical erasure of the
conviction. The policy determination set forth by the Attorney General
in that case has also received the approval of the, courts. See Kolios v.
INS, 532 F.2d 786 (1 Cir.), cert. denied, 429 U.S. 884 (1976); Gonzalez
de Lara v. United States, 439 -F.2d 1316 (5 Gin 1971); Cruz-Martinez v.
INS, 404 F.2d 1198 (9 Cir. 1968), cert. denied, 394 U.S. 955 (1969);
Garcia-Gonzales v. INS, 344 F.2d 804 (9 Cir.), cert. denied, 382 U.S.
840 (1965); but see Rehman v. INS, 544 F.2d 71. (2 Cir. 1976). We

therefore find the respondent's contentions to be unconvincing and conclude that the expungement of his conviction pursuant to section 137.225
does not eliminate it for purposes of deportation.
Accordingly, the appeal will be dismissed.
ORDER The appeal is dismissed.

Board Member James P. Morris has abstained from consideration of this
case.

2 We note the respondent's citation in this regard to the Solicitor General's memorandum included in the Appendix to Matter of Andrade, 14 I&N Dec. 651 (BIA 1974). It

should be pointed out that both the Solicitor General's statement and the Motion of
Commissioner, which is also part of the Appendix in that case, add the caveat that the
positions stated there do not apply to expungement under state laws that do not have a
federal counterpart.
377


MATTER OF 0—

In SECTION 212(d) (3) Proceedings
A-3904268

Decided by Assistant Commissioner March 19, 1959
Approved by Board April 2, 1959
Excludability—Specific statutory ground not required for exclusion of alien
who would immediately become deportable upon entry—NonimmigrantSection 212(d)(3) may be exercised to waive inadmissibility not based on
section 212(a).
An alien who would upon entry immediately become deportable under section
241(a) (5) of the 1952 act because of prior conviction under the Foreign
Agents Registration Act is deemed excludable in law despite absence of
specific excluding autnorrty in section 212(a) of the act. (Cf. Mutter of
R l) , Int. Dec. No. 950.) however, his admission as a nonimmigrant
may be authorized pursuant to section 212(d) (3) of the act.
Asnue,nrow

n.ffirnmizrant far 2 months under section 212
(d) (3) of the Immigration and Nationality Act notwithstanding excludability by reason of conviction of violation of 18
U.S.C. 88, conspiracy, and 22 D.S.C. 231, Foreign Agents Registration Act.

Adraigsinn ns n

BEFORE THE ASSISTANT COMMISSIONER
(March 19, 1959)

Discussion; The alien is a 61-year-old native, citizen and resident
of Japan, born in Kitasaitama-ken, Saitama-gun, August 4, 1897.
He first entered the United States at Seattle, Washington, August 4,
1922, and last entered at El Paso, Texas, October 18, 1931, after a
2-month absence in Mexico.
On June 5, 1942, the alien was convicted in the United States
District Court for the District of Columbia of the violations set
out above and sentenced to from 2 to 6 months' imprisonment. He
was repatriated to Japan September 2, 1943.
Since 1054 the subject has been a key employee of Northwest

Orient Airlines in the position of Assistant to the Vice-President
for the Orient. His employers wish to bring him to the headquarters
office in St. Paul, Minnesota, for a period of 2 months to acquire
knowledge of the company's domestic operations.
The Department of State has inquired (1) whether the alien
is considered to be inadmissible by reason of his conviction, (2) if
291

so, whether the ground of inadmissibility can be waived pursuant
to the authority contained in section 212(d) (3) of the act.
Has the subject been convicted of an offence, or offenses, involving moral turpitude so as to make him excludable under section
212(a) (9) or (10) of the act? As a matter of law, a conspiracy
to commit an offense involves moral turpitude only when the substantive offense charged therein involves moral turpitude (United
States es rel. Berlandi v. Reimer, 30 F. Supp. 767; Mercer v. Lance,
96 F.ad 122, cart. don. 305 TT.S. 611). The substantive offense here
charged, violation of the Foreign Agents Registration Act of 1935,
as amended, does not involve moral turpitude (Matter of M—,
3 I. & N. Dee 310). Hence, it is found that the alien is not
subject to exclusion under section 212(a) (9) or (10) of the act;
nor is there any other express provision in section 212(a) requiring his exclusion.
Notwithstanding the lack of a specific statutory ground of exclusion, is the alien nevertheless excludable because of his conviction? Section 241 (a)(5) of the act provides that "Any alien
in the United States * *
°boll, upon the order of the Attorney
General, be deported who— * * * has been convicted of violating or
conspiracy to violate any provision of the Act entitled 'An Act to
require the registration of certain persons employed by agencies to
disseminate propaganda in the United States, and for other pur•
poses', approved June 8, 1938, as amended * *." That section
does not couple deporiability with any partiei lar entry into the
United States: It merely makes deportable such an alien in the
United States. Thus, if the subject were to gain entry he would
immediately become deportable. It has been the long-standing administrative practice to hold such an alice excludable. This conclusion has been reached in cases involving persons previously excluded or deported on charges involving prostitution (Matter of
N—, 55917/905, unreported) ; persons convicted of violating the
narcotics laws (Matter of , 1 I. & N. Dec. 293) ; persons who
have failed to comply with section 265 of the Immigration and
Nationality Act (Matter of S--, 7 I. & N. Dec. 536); and persons convicted under 18 U.S.C. 1546 (Matter of R U , Int.
Dec. No. 950).
Having found the subject excludable, may his admission be authorized under the authority of section 212(0)(3) of the act which
provides for the admission of a nonimmigrant who is inadmissible
under one or more of the paragraphs enumerated in subsection (a),
other than paragraphs (27) and (29)? Since excludability rests
on long-standing administrative practice rather than on a ground
specifically mentioned in section 212(a), a narrow reading of section 212(d) (3) would seem to preclude the exercise of that dis292

cretionary authority. However, the sole statutory prohibition is the
exercise of section 212(d) (3) in behalf of aliens excludable under
section 212(a) (27) and (29). All other classes of excludable aliens
may be admitted temporarily under section 212(d)(3). Since the
subject is actually excludable, and the excludability does not rest
upon either section 212(a) (21') or (29), it is concluded that section
212(d) (3) is the proper statutory basis for the exercise of the
Attorney General's discretion to authorize temporary admission of
this applicant. His application will be granted.
Order: It is ordered that the subject's admission to the United
States as a nonimmigrant for a period of 2 months be authorized
pursuant to section 212(d) (3) of the Immigration and Nationality
Act, subject to revocation et any time, provided he is found to be
otherwise admissible than by reason of his conviction of -violation
of 18 U.S.C. 88, conspiracy, and of 22 U.S.C. 233, Foreign Agents
Registration Act, and provided he applies for admission within a
period of 3 months from notification of decision.
Pursuant to 8 CFR 3.1(c), this case is certified to the Board of
Immigration Appeals for review.
BEFORE THE BOARD
(April 2, 1959)

Discussion: The Assistant Commissioner, Inspections Division,
on March 19, 1959, ordered that the alien's admission to the United
States as a nonimmigrant for a period of 2 months be authorized
under the authority provided in section 212(d) (3) of the Immigration and Nationality Act, subject to revocation at any time,
provided he is found to be otherwise admissible than by reason of his
conviction of -violation of 18 U.S.C. 88, conspiracy, and of 22 U.S.C.
233, Foreign Agents Registration Act, and provided that he applies
for admission within a period of 3 months from notification of the
decision. The case has been certified to the Board for final decision
in accordance with 8 CFR 3.] (c).
The alien is a 61-year-old native, citizen and resident of Japan.
The facts detailing his first and last admissions to the United States
at Seattle, Washington, and El Paso, Texas, on August 4, 1922, and
October 18, 1931, respectively, as well as his having been convicted
in the United States District Court for the District of Columbia
on June 8, 142, for violations of section 88, Title 18, U.S.C., conspiracy, and section 233, Title 22, U.S.C., Foreign Agents Registration Act, and his being repatriated to Japan in September 1943,
have been adequately covered by the Assistant Commissioner, Inspections Division, in his decision of March 19, 1959.
The appellant, an employee of the Northwest. Orient Airlines, is
the Assistant to the Vice-President for the Orient. His employers
293

desire to bring him to the United States for a period of 2 months
for training in connection with the domestic operations of the
aforementioned company. While in the United States the appellants headquarters will be in St. Paul, Minnesota. On the basis of
the evidence before us it is clear that if the appellant were admitted to the United States he would become deportable therefrom under the provisions of section 241(a) (3) of the Immigration
and National Act by reason of his having been convicted on June 5,
1942, of violation of Title 18, U.S.C., section 88. This Board has
held that a specific statutory ground is not required for the exclusion of an alien who would immediately become deportable upon
entry. The Assistant Commissioner, Inspections Division, after a
detailed recital of the, pertinent evidence in his decision of March
19, 1959, authorized the alien's admission to the United Stales as a
nonimmigrant under section 212(d) (3) of the Immigration and Nationality Act and the reasons therefor are stated tersely and with
clarity therein. The decision reached by the Assistant Commissioner
in his decision of March 19, 1959, is concurred in by this Board.
Accordingly, the following order will be entered.
Order: It is ordered that the order entered by the Assistant
Commissioner, Inspections, on March 19, 1959, be and the same is
hereby approved.

294


MATTER OF R.—
In DEPORTATION Proceedings

A-11030269

Decided by Board August 7,1961
Excludability—Section 212(a)(4)—"Exhibitionism."
-

Eiallillionita" is a form of aex-ual deviation requiring exclusion of an alien

so afflicted at time of entry under section 212(a) (4) of the Act as a psychopathic personality.
Crntaion:

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under section 212(a) (4) [8 U.S.C. 1182(a) (4)1—Psychopathic personality (sex deviate).

BEFORE THE BOARD

DISCUSSION: This is an appeal from the order of the special
inquiry officer requiring respondent's deportation upon the charge
stated above. The appeal will be dismissed.
Respondent is an alien, a 27-year-old single male, a native and
citizen of Germany, who was admitted to the United States for
permanent residence on January 19, 1957. He made several short
visits to Mexico from 1957 to 1958, the last being for a few hours on
Juno 15, 1960. The Service charges that he was a sex deviate (an
exhibitionist) at the time of his entry and was, therefore, excludable
as a psychopathic personality.
A psychopathic personality is inadmissible to the United States
(section 212(a) (4), Immigration and Nationality Act; 8 U.S.C. 1182
(a) (4) ). A sex deviate is by declaration of Congress classified as
a psychopathic personality (Fleuti v. Hoy, unreported, U.S.D.C.,
S.D. Cal., No. 1275-59-K Civil, Jan. 4, 1961; Matter of S—, 8-409,
Matter of P—, 7-258). The questions, as we see them, are :
(1) Is exhibitionism a sexual deviation ?
(2) Is respondent an exhibitionist ?
(3) Did respondent's condition exist at the time of his last
entry?
393

Exhibitionism is defined as:
The display of one's body or parts (even the genitals), fur the purpose, conscious or unconscious, of attracting a sexual interest (United States v. FloresRodriguez, 237 F.2d 405, 410, C.A. 2, 1956, quoting Dot.land's American Illustrated Medical Dictionary, 22d ed.).

"Sexual deviation" is not a defined term, however, the history of
legislation with which we are concerned reveals that the term is intended to cover homosexuals and sexual perversions of the nature of
"sexual sadism, fetishism, transvestism, pedophilia, etc." Matter
of P—, 7-258, 261-263. This list of sex perversions reveals that the
prohibited sexual behavior is not restricted to unnatural relations.
"Exhibitionism" appears to he of the same abnormal nature of sexual
bAhavior as fetishism and transvestism and would, thsrsfore, be a

sexual perversion or deviation contemplated by section 212(a) (4)
of the Immigration and Nationality Act. We note also that Dr.
Conrad, a Govermnent witness whose qualifications as a psychiatrist
are conceded, considers an exhibitionist as a sexual deviate.

The special inquiry officer, in a lengthy discussion, concluded
that respondent is an exhibitionist. Respondent argues that he is
not an exhibitionist because he did not expose himself. He admits
that he was engaged in a sexual irregularity which is not relevant
to the charge, and that this occurred while he was in his car on a
public thoroughfare, but alleges that he took pains to hide his action. We do not think that this defense is sustained. Testimony in

contradiction of the defense comes from admissions against interest
made by respondent, the fact that his conduct led to complaints by
the public and to his arrest and conviction on two occasions—once
as a lewd or dissolute person and once for indecent exposure. (We
believe that it is proper to give greater weight to respondent's admissions . against interest rather than his self-serving statements
even though he was not represented by counsel when the admissions
against interest were made (Matter of S—, 8

109, p. 417)).

It is alleged that respondent lacked facility with the English
language at the time he made admissions against interest. The record does not appear to support this contention. Respondent's answers appear quite responsive and were elaborated upon Irmo time
to time. When respondent did not understand, he made known his
lack of understanding. He initialed each page. Corrections were
made by him at his request. Moreover, no objection wan made to
the introduction of the admissions into the record at the hearing,
although counsel was permitted an opportunity to make his objections.
Counsel's contention that respondent's remorse at having done
something wrong (although the action fell short of exhibitionism)
894

may have influenced him to make admissions which were not factual,
has been considered but must be rejected in light of the evidence
of record. We need not be bound by respondent's belief that he was
not attempting to expose himself in view of the objective conditions
which existed.
Counsel takes strong issue with Dr. Conrad's finding that respondent was a sexual deviate. Counsel points to errors in notes made by
the witness when he interviewed respondent. We have carefully
examined these allegations. They do not require extended discussion.
The errors are of a minor nature, e.g., whether respondent was arrested two rather than three times, and whether the arrest was in
Hollywood rather than North Hollywood. The discrepancies were
brought to the attention of Dr. Conrad who did not change his
diagnosis. Counsel complains of error in Dr. Conrad's opinion that
respondent failed to consult a psychiatrist for treatment. We believe that Dr. Conrad properly evaluated the situation. The necessity
for inquiring into the reasons for respondent's pleas of guilty has
not been shown. While Dr. Conrad found significance in the fact
that respondent was living with another male, we note no strong
inference was taken from this and that the fact was considered
merely one item of interest in the taking of a sexual history. We
believe the record establishes that respondent is an exhibitionist.
The question now is whether the deviation existed at the time of
respondent's last entry. We believe it did. The record of several
exposures in 1958 and several in 1960 convinces us that respondent's
behavior is persistent and deep seated. We note that the occurrences in 1960 were after he had received official punishment for
doing the very same type of acts. The last act occurred in February
1960„. Respondent received no medical treatment after this act. His
last entry occurred just a few months after these acts. The persistence of respondent's conduct rules out the possibility that it was
the result of an experiment out of curiosity or the reaction to a
highly upsetting experience. We are satisfied that this deep-seated
a ii iction existed at the time of respondent's last entry. (Of course,
if it existed at the time of any of his entries he would be illegally
in the United States.)
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

395