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Interim Decision #3916

Matter of Tomas MENDEZ, Respondent
Decided February 23, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime
involving moral turpitude. Matter of Robles, 24 I&N Dec. 22 (BIA 2006), reaffirmed.
Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), followed in jurisdiction only.
FOR RESPONDENT: Andrew L. Friedman, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sarah L. Martin, Associate
Legal Advisor
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and MALPHRUS, Board
Members.
PAULEY, Board Member:

In a decision dated July 21, 2016, an Immigration Judge found the
respondent inadmissible as an alien convicted of a crime involving moral
turpitude under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality
Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012). On the same day, she issued a
second decision incorporating the finding of inadmissibility, pretermitting
the respondent’s application for cancellation of removal under section
240A(a) of the Act, 8 U.S.C. § 1229b(a) (2012), and ordering him removed
from the United States. The respondent has appealed from that decision. The
appeal will be dismissed. 1

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of the Dominican Republic. The
record reflects that he was admitted to the United States as a conditional
permanent resident on January 28, 2004, and that the conditions of his
residence were removed in 2006. On December 17, 2010, the respondent
was convicted in the United States District Court for the District of Maryland
1

We acknowledge and have considered the arguments submitted by the parties and amici
curiae in response to our request for supplemental briefing.

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Interim Decision #3916

of misprision of felony in violation of 18 U.S.C. § 4 (2006). 2 After he sought
admission to the country as a returning resident on March 31, 2016, the
Department of Homeland Security (“DHS”) initiated removal proceedings.
The Immigration Judge determined that the respondent’s offense is a
crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act,
which terminated his period of continuous residence under section 240A(d)
and rendered him ineligible for cancellation of removal. She based her ruling
on our precedent decision in Matter of Robles, 24 I&N Dec. 22 (BIA 2006),
which held that misprision of felony under § 4 is categorically a crime
involving moral turpitude. In Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir.
2012), the United States Court of Appeals for the Ninth Circuit rejected our
holding. The Immigration Judge determined that she was bound to follow
Board precedent in the absence of contrary precedent from the Second
Circuit, in whose jurisdiction this case arises. The respondent challenges the
Immigration Judge’s determination that misprision of felony is a crime
involving moral turpitude, and he urges us to reverse our holding in Robles.
Our 2006 decision in that case expressly followed the analysis of the
Eleventh Circuit in Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002), which
held that misprision of felony under § 4 is categorically a crime involving
moral turpitude. In 2015, the Second Circuit requested that we clarify our
position in light of the split between the Ninth and Eleventh Circuits on this
issue. Lugo v. Holder, 783 F.3d 119, 120−21 (2d Cir. 2015). We later
clarified the framework for determining whether a conviction is for a crime
involving moral turpitude in Matter of Silva-Trevino, 26 I&N Dec. 826
(BIA 2016). Thereafter, the Fifth Circuit joined the Eleventh in concluding
that a violation of § 4 is categorically a crime involving moral turpitude.
Villegas-Sarabia v. Sessions, 874 F.3d 871, 878−81 (5th Cir. 2017).
Given this circuit split and our clarification regarding crimes involving
moral turpitude, we find it appropriate to revisit the question whether
misprision of felony under § 4 is categorically a crime involving moral
turpitude. 3 For the following reasons, we conclude that it is and will reaffirm
our holding in Robles.
2

The crime of misprision of felony is defined in 18 U.S.C. § 4 as follows:
Whoever, having knowledge of the actual commission of a felony cognizable by a
court of the United States, conceals and does not as soon as possible make known
the same to some judge or other person in civil or military authority under the United
States, shall be fined under this title or imprisoned not more than three years, or both.

3

We did not resolve this issue in Lugo because the case was administratively closed after
the Second Circuit rendered its decision. Moreover, Lugo presented retroactivity issues
that are not present here. See Lugo, 783 F.3d at 121−23 (remanding for consideration of
the question of retroactivity).

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Interim Decision #3916

II. ANALYSIS
We have held that the categorical and modified categorical approaches
provide the proper framework for determining whether a conviction is for a
crime involving moral turpitude. Matter of Silva-Trevino, 26 I&N Dec. at
827, 831. Unless circuit law dictates otherwise, the realistic probability test,
which focuses on the minimum conduct that has a realistic probability of
being prosecuted under the statute of conviction, is applied in determining
whether an offense is a categorical crime involving moral turpitude. See id.
at 831−33; see also Moncrieffe v. Holder, 569 U.S. 184, 191 (2013);
Efstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014) (noting that the
focus is on “whether or not ‘the minimum conduct criminalized by the
statute’ would support classification of a crime as a [crime involving moral
turpitude]” (quoting Moncrieffe, 569 U.S. at 191)). If a violation of the
statute of conviction is not categorically a crime involving moral turpitude,
the next step is to determine whether the statute is divisible so that the
modified categorical approach may be applied. See Matter of Silva-Trevino,
26 I&N Dec. at 833; Matter of Chairez, 26 I&N Dec. 819, 822 (2016).
Moral turpitude refers generally to conduct that is “inherently base, vile,
or depraved, and contrary to the accepted rules of morality and the duties
owed between persons or to society in general.” Mendez v. Mukasey, 547
F.3d 345, 347 (2d Cir. 2008) (citation omitted); see also Matter of Sejas,
24 I&N Dec. 236, 237 (BIA 2007). Further, to involve moral turpitude, a
crime requires both a culpable mental state and reprehensible conduct. See,
e.g., Efstathiadis, 752 F.3d at 595 (“[I]t is in the intent that moral turpitude
inheres . . . .” (citation omitted)); Matter of Silva-Trevino, 26 I&N Dec. at
828 n.2; Matter of Ortega-Lopez, 26 I&N Dec. 99, 100 (BIA 2013).
Applying the framework articulated in Silva-Trevino for determining
whether a crime involves moral turpitude, we conclude that misprision of
felony under 18 U.S.C. § 4 is categorically such a crime. The elements of
misprision of felony are “1) the principal committed and completed the
alleged felony; 2) defendant had full knowledge of that fact; 3) defendant
failed to notify the authorities; and 4) defendant took steps to conceal the
crime.” United States v. Cefalu, 85 F.3d 964, 969 (2d Cir. 1996).
First, we agree with the DHS’s argument that taking steps to conceal a
felony is reprehensible conduct that is morally turpitudinous. Courts have
long held that concealment offenses are crimes involving moral turpitude.
See, e.g., Villatoro v. Holder, 760 F.3d 872, 877−78 (8th Cir. 2014) (holding
that tampering with records under Iowa law is a crime involving moral
turpitude where the statute required an intent to conceal wrongdoing);
Fuentes-Cruz v. Gonzales, 489 F.3d 724, 726 (5th Cir. 2007) (per curiam)
(holding that unlawful transport of an individual in a manner “designed to
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Interim Decision #3916

conceal” that person from law enforcement under Texas law is a crime
involving moral turpitude (emphasis omitted)); Padilla v. Gonzales, 397 F.3d
1016, 1020−21 (7th Cir. 2005) (holding that obstruction of justice under
Illinois law is a crime involving moral turpitude because the offense required
the concealment of criminal activity), overruled on other grounds, Ali
v. Mukasey, 521 F.3d 737, 743 (7th Cir. 2008); Smalley v. Ashcroft, 354 F.3d
332, 336−39 (5th Cir. 2003) (holding that a money laundering offense is a
crime involving moral turpitude where the intent was to conceal the proceeds
of illegal drug activity); United States ex rel. Medich v. Burmaster, 24 F.2d
57, 58 (8th Cir. 1928) (holding that the concealment of assets in bankruptcy
is a crime involving moral turpitude).
Further, as both the Fifth and Eleventh Circuits have explained, the
affirmative act of concealment in the misprision context involves dishonest
and deceitful behavior, which runs contrary to accepted societal duties and is
morally turpitudinous conduct. Villegas-Sarabia, 874 F.3d at 881 (finding
that the act of concealing a felony “necessarily entails deceit” (citation
omitted)); Itani, 298 F.3d at 1216 (finding that the act of concealing a felony
in the crime of misprision necessarily involves dishonest or fraudulent
activity and is therefore a crime involving moral turpitude).
The respondent and the amici in support of the respondent assert on
appeal that we should consider the act of concealment to be insufficient to
render misprision of felony a categorical crime involving moral turpitude
unless the underlying felony is a crime involving moral turpitude.
Specifically, the respondent and amici argue that a contrary determination
would lead to the alleged “absurd result” that a person who has committed
misprision would be guilty of a crime involving moral turpitude even though
the principal felony offender is not.
In Robles-Urrea, 678 F.3d at 710−11, the Ninth Circuit observed that
it had recognized this “absurd result” in the context of a different statute,
the Federal accessory-after-the-fact statute at 18 U.S.C. § 3 (2012), and
concluded that the same reasoning would apply in the context of misprision
of felony. 4 Like the Ninth Circuit, we have also held that accessory after the
4

18 U.S.C. § 3 provides:
Whoever, knowing that an offense against the United States has been committed,
receives, relieves, comforts or assists the offender in order to hinder or prevent his
apprehension, trial or punishment, is an accessory after the fact.
[A]n accessory after the fact shall be imprisoned not more than one-half the
maximum term of imprisonment or . . . fined not more than one-half the maximum
fine prescribed for the punishment of the principal, or both; or if the principal is
punishable by life imprisonment or death, the accessory shall be imprisoned not more
than 15 years.

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Interim Decision #3916

fact under § 3 may be a crime involving moral turpitude only if the
underlying felony is a crime involving moral turpitude. Matter of Rivens,
25 I&N Dec. 623, 627 (BIA 2011).
However, we respectfully disagree that this reasoning extends to the
misprision of felony offense at issue here. We recognize that accessory after
the fact carries a higher potential range of punishment than misprision.
Furthermore, in comparing misprision to accessory after the fact, we have
found that “[i]t is a lesser offense to conceal a crime where there is no
investigation or proceeding, or even an intent to hinder the process of
justice.” Matter of Espinoza, 22 I&N Dec. 889, 895 (BIA 1999). However,
these comparative distinctions between misprision of felony and accessory
after the fact do not inform or dictate our moral turpitude analysis. See
Matter of Solon, 24 I&N Dec. 239, 240 (BIA 2007) (“Neither the seriousness
of the underlying offense nor the severity of the punishment imposed is
determinative of whether a crime involves moral turpitude.”).
Considering the language of the misprision statute, we conclude that the
affirmative act of concealing a known felony is deceitful and dishonest and
is therefore reprehensible conduct that involves moral turpitude, regardless
of whether the underlying felony is also a crime involving moral turpitude.
See, e.g., Villegas-Sarabia, 874 F.3d at 881; Itani, 298 F.3d at 1216.
Notably, accessory after the fact does not necessarily involve an act of
concealment of an underlying felony. See 18 U.S.C. § 3 (requiring that the
offender receive, relieve, comfort, or assist the principal, “knowing that an
offense against the United States has been committed”). Moreover, the range
of punishment for misprision is fixed without regard to the underlying felony,
while the range for accessory after the fact is directly tied to the potential
punishment of the principal. Compare 18 U.S.C. § 3, with 18 U.S.C. § 4.
This further supports our conclusion that, in the misprision context, whether
the underlying felony involves moral turpitude is irrelevant.
We are also satisfied that the misprision statute encompasses the requisite
scienter for the offense to be a crime involving moral turpitude. While
the language of 18 U.S.C. § 4 does not explicitly require that the act of
concealment be intentional, such intent is implicit because it must be shown
that the “defendant took steps to conceal the crime.” See Cefalu, 85 F.3d at
969; see also United States v. Bolden, 368 F.3d 1032, 1037 (8th Cir. 2004)
(stating that “this statutory offense requires proof of ‘affirmative steps’ to
conceal a known felony” (citation omitted)); United States v. Vasquez-Chan,
978 F.2d 546, 555 (9th Cir. 1992) (same), overruled on other grounds,
United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010); United States
v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988) (same).
The act of taking steps to conceal a crime under § 4 has been interpreted
by the courts to be a willful act. See, e.g., United States v. Davila, 698 F.2d
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715, 717 (5th Cir. 1983) (stating that a violation of the misprision statute
“requires some positive act designed to conceal from authorities the fact that
a felony has been committed” (emphasis added)); United States v. Sampol,
636 F.2d 621, 653 (D.C. Cir. 1980) (per curiam) (noting that misprision
requires “knowledge of the commission of a felony, and wilful concealment
from the authorities by some affirmative act” (emphasis added)); see also
United States v. King, 402 F.2d 694, 697 (9th Cir. 1968); Bratton v. United
States, 73 F.2d 795, 797−98 (10th Cir. 1934); Black’s Law Dictionary 478
(8th ed. 2004) (defining “design” as a “[p]urpose or intention combined with
a plan”); cf. Fuentes-Cruz, 489 F.3d at 726 (holding that the requisite mental
state for purposes of moral turpitude existed where the Texas statute required
the perpetrator to transport a person in a manner that was “designed to
conceal” that individual from law enforcement (emphasis omitted)).
Significantly, charging documents for misprision have included
allegations that the act of concealment was intentional. See United States
v. Adams, 961 F.2d 505, 509 (5th Cir. 1992) (per curiam) (noting that the
information charging the defendant with misprision stated that he “did
knowingly and unlawfully conceal” the crime); Sullivan v. United States, 411
F.2d 556, 557 (10th Cir. 1969) (noting that the indictment stated that the
defendant “did wilfully conceal” the crime). Similarly, jury instructions
regarding the elements of misprision have included statements that the
defendant’s concealment must be deliberate. See United States v. Salinas,
956 F.2d 80, 83 (5th Cir. 1992) (providing that the jury instruction on the
elements of misprision required that the defendant “deliberately took an
affirmative step to conceal the crime”); Sampol, 636 F.2d at 653 (discussing
the instruction that “[t]o commit the crime [of misprision] of a felony the
defendant’s knowledge must be actual and his concealment must be
purposeful and deliberate”); see also United States v. Clemons, 166 F.3d
1215 (6th Cir. 1998) (per curiam) (unpublished).
Based on the language of the misprision statute and the elements of the
offense, as set forth in charging documents and jury instructions and as
interpreted by the courts, we conclude that the concealment element of
misprision requires an intentional act that is sufficiently reprehensible to be
considered morally turpitudinous.
Finally, the respondent asserts that our holding in Matter of Espinoza,
22 I&N Dec. at 892, that misprision of felony is not an obstruction of
justice aggravated felony under section 101(a)(43)(S) of the Act, 8 U.S.C.
§ 1101(a)(43)(S) (2012), conflicts with our determination that misprision
encompasses the requisite scienter for a crime involving moral turpitude. We
concluded there that misprision “lacks the critical element of an affirmative
and intentional attempt, motivated by a specific intent, to interfere with the
process of justice.” Id. at 896. We made no determination in Matter of
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Interim Decision #3916

Espinoza concerning the mens rea attached to the actual act of concealment
or to the question whether the offense is a crime involving moral turpitude.
We are therefore unpersuaded by the respondent’s contention.
We conclude that misprision of felony in violation of 18 U.S.C. § 4 is
categorically a crime involving moral turpitude and will therefore reaffirm
our holding in Matter of Robles. 5 In addition, we respectfully decline to
follow Robles-Urrea v. Holder in cases arising outside the jurisdiction of the
Ninth Circuit. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.

5

The respondent contends that the application of our precedent decision in Matter of
Robles would be impermissibly retroactive. We disagree. We need not reach the question
whether our decision can be applied to conduct that predated that order, because the
respondent’s conviction documents make clear that his offense was committed in 2010,
years after Matter of Robles was published.

225


Interim Decision #2510

MATTER

OP ROJAS

In Deportation Proceedings
A-21415960

Decided by Board August 2, 1976
(1) Burden is on alien to establish a prima facie ease that the Service obtained its evidence
illegally before. the Service will be required to justify the manner in which it obtained its
evidence.
(2) Allegation o! unfairness of hearing is not sustained where there is no evidence that
alien's statements were involuntary and coerced and where the Service advised the
alien of his rights in compliance with 8 CFR 287.3.
(3) Denial of the privilege of voluntary departure was not an abuse of discretion where
respondent ac mitted that he had twice entered the United States without inspection
and also had previously rejected an offer of voluntary departure without the institution
of deportation proceedings.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U. S. C. 1251(a)(2))—Entry -without inspection
ON BEHALF OF RESPONDENT:

Gary Silbiger, Esquire
2212 Sunset Boulevard
Los Angeles, CA 90026

This is an appeal from the November 17, 1975 decision of the immigration judge it which he found the respondent deportable as charged,
denied his 'application for voluntary departure, and ordered him deported to Mexico.
On appeal counsel for the respondent contends (1) that the immigration judge wrongfully denied his motion to suppressevidence; (2) that
the immigration judge improperly denied the respondent the right of
cross-examination; (3) that deportability was not proven; (4) that the
respondent was not given a fair hearing; and (5) that the immigration
judge's denial of voluntary departure was, arbitrary, capricious, and an
abuse of discretion. We shall answer each contention in turn.
At the hearing the respondent identified himself, and it was stipulated
that the order to show cause related to him. Thereafter, the respondent
refused to testify on Fifth Amendment grounds and the Immigration
and Naturalization Service was put to its proof.

The Service introduced a Form 1-213, Report of Deportable Alien,
722

Interim Decision #2510
and a Form 1-214, Warning as to Rights. Counsel objected to these
documents saying (1) that they were the fruit of an illegal arrest; (2) that
they were the result of an involuntary and coerced statement; (3) that
the respondent was not given his Miranda warnings or read his rights;
(4) that no foundation had been laid as to the authenticity of the documents; (5) that the respondent was denied his right to crossexamination; and (6) that the forms contained hearsay statements.
Counsel then examined the immigration officer who prepared the documents.
• The immigration officer did not remember this particular respondent,
but he described his unvarying practice in interviewing arrested aliens
as follows. After picking up Form SW-424 (Exhibit 3) 1, the officer calls
the subject in from the holding room and hands him Form 1-214 to
advise him of his rights. If the subject cannot read or does not understand, the officer himself reads and explains his rights to him. If the
subject requests a lawyer, the officer at this time gives him the opportunity to use the pay telephone and call a lawyer. Otherwise, he signs
the warning of rights himself to show that he afforded the subject those
rights, and then proceeds to fall out the Form 1-213, taking much of the
information from the Form SW-424 and getting the rest from the
subject.
The respondent testified that he repeatedly asked for an opportunity
to call a lawyer but was told to wait until later. The immigration officer
testified that it was his invariable practice to allow a subject who
requested a lawyer to call one at the time of the request. It was noted on
the Form 1-213 that the respondent had requested a lawyer, but the
notation does not indicate when the request was made.
The respondent has offered no evidence tending to establish that his
arrest was illegal. It is his burden to establish a prima facie case that the
Service obtained its evidence illegally before the Service will be called
upon to justify the manner in which it obtained its evidence. Matter of
Tsang, 14 L & N. Dec. 294 (BIA 1973); Matter of Wong, 13 I. & N. Dec.
820 (BIA 1971); Matter of Tang, 12 I. & N. Dee. 691 (BIA 1971). The
immigration judge correctly denied the respondent's motion to suppress
evidence and his request to examine the arresting officers.
The authenticity of the Form 1-213 has been established by the officer
who prepared the form. The form has the same name and the same A
number as are on the order to show cause, which the respondent
conceded related to him. Although counsel insinuated in his questioning
of the Service officer that subjects who insist on speaking to their
attorneys before answering questions are held on higher bond than
This form has space for information concerning the subject's name; date and place of
birth; nationality; status, place, date, and time of entry; date, place and time questioned;
time and place arrested; and apprehending officers.

723

Interim Decision #2510
others and that the respondent's statement was involuntary and
coerced, the, immigration officer denied this, and there is no evidence
that any form of coercion was used to extract information from the
respondent in this case. Moreover, we are satisfied that the respondent
was advised of his rights in compliance with 8 CFR 287.3. There is no
requirement that Miranda warnings be given. Trial Hernandez v.
INS, 528 F.2d 366, 369 (C.A. 9, 1975). We therefore find that deporta-

bility has been established by evidence which is clear, unequivocal, and
convincing. We see no way in which the hearing was unfair as alleged by
counsel.
Regarding the respondent's application for voluntary departure, he
stated that he did not have the funds to depart at his own Rxpense, nor
would he even if he were given a somewhat extended period of time
within which to depart. Accordingly, the immigration judge correctly
found the respondent ineligible for the privilege of voluntary departure.
8 CFR 244.1.
The respcndent admitted, in his testimony on his application for
voluntary departure, that this was his second entry without inspection.
Furthermore, he rejected an offer of voluntary departure without institution of deportation proceedings. We do not think that denial of the
privilege of voluntary departure in such a case is an abuse of discretion.
Gil v. Del Guercio, 246 F.2d 553 (C.A. 9, 1957).
Accordingly, the following order will be entered:.

ORDER: The appeal is dismissed.

724

•


MATTER OF L—

In DEPORTATION Proceedings
A-4226313

Decided by Board August 8, 1960
Deportability—Section 241(a)(6) of 1952 Act—Membership in Finnish Workers
Federatiow—Affiliation with Communist Party—Distribution of proscribed
literature.
Evidence—Jencks rule—Recall of Government witnesses after completion of
cross-examination.
(1) Membership in Finnish Workers Federation supports deportation charges
under section 241(a) (6) of Immigration and Nationality Act upon evidence
establishing that. Finnish Workers Federation was an "affiliate" of the Communist Party of the United States within meaning of subparagraph (C) (v) ;
or Finnish Workers Federation was an organization that distributed material advocating doctrines of world 'communism within meaning of subparagraph (H).
(2) Consistent support of Communist Party by Finnish Workers Federation
establishes "affiliation" within definition of section 101(e) (2); unnecessary
to show that Finnish Workers Federation was an "integral part" of the
Communist Party.
(3) Respondent not entitled under Jencks rule to demand recall of Government witnesses for further cross-examination where witnesses were dismissed and respondent made no request for production of their pre-hearing
statements prior to completion of cross-examination.
CHARGES :
Order: Act of 1952—Section 241(a) (6) [8 U.S.C. 1251(a) (6)1—After entry,
member of or affiliated with organization that distributes or publishes written or printed matter advocating doctrines of world
communism.
Act of 1952—Section 241(a) (6) [8 U.S.C. 1251 (a) (6) ]—After entry,
member of or affiliated with affiliate of Communist Party of United
States.

BEFORE THE BOARD

DISCUSSION: This case is before us on appeal from a decision
of a special inquiry officer directing the respondent's deportation.
The respondent is a 58-year-old married male, native and citizen
of Finland, who last entered the United States on June 5, 1914, at
which time he ■ N iLS admitted for permanent residence. The special
inquiry officer concluded that the two charges stated above were

14

sustained. The sole issue to be determined is whether the respondent
is deportable on either or both of these charges. For the reasons
hereinafter stated, we hold that both charges are sustained.
We have carefully review the entire record. The respondent conceded that he is an alien but disputed the fourth, fifth and sixth
allegations of the order to show cause. These were to the effect that
the respondent w us a member of the Finnish Workers Federation of
the United States; that this organization was a section, branch,
affiliate or subdivision of the Communist Party of the United States;
and that the Finnish Workers Federation of the United States has
published or distributed printed Darter advocating the economic,
international and governmental doctrines of world communism.
"World communism" and the advocating of its doctrines are defined
in 8 U.S.C. 1101(a) (40) and 1101(e) (3). In his decision, the special
inquiry officer stated that the respondent's membership in the Finnish 'Workers Federation' of the United States encompassed at least
the period from March 1930 to 1940. The organization will ordinarily be referred to hereinafter as Finnish Workers Federation
except where other names used by it become relevant.
In Matter of D—, 9 578, 585 - 586 (1951), we held that the
International Workers Order was affiliated with the Communist Party
and that by virtue of that alien's membership in the IWO he
was affiliated with the Communist Party. Relying on that case, the
special inquiry officer found that the respondent, during the period
of his membership in the Finnish' Workers Federation, was affiliated
with the Communist Party and was affiliated with an organization
(the Communist Party) that distributed printed matter advocating
the doctrines of world communism. The second charge against this
respondent is not that he was affiliated with the Communist Party
but that he was "a member of an affiliate of the Party, and the factual
allegations in the order to show cause make it clear that both charges
are predicated on his membership in the Finnish Workers Federation. Under the circumstances, we do not consider that there is
properly before us the question of whether the respondent was affiliated with the Communist Party and iwe decline to express an opinion
on that point.
In tracing the history of the Finnish Workers Federation, the
Service in-its brief (Point II) has commenced with the founding of
the Finnish. Socialist Federation at Hibbing, Minnesota, in August
1966 and has made the following assertions. The left -wing branCh
of the Finnish Socialist Federation seceded from the Socialist Party
about January 1, 1921. About 1922 or 1923 the leftists joined the
Workers (Communist) Party en masse and became known as the
Finnish Federation of that Party. Early in 1925 the Executive
Comyriittee of the Comintern ordered the' Communist parties of the

world to dissolve and to reorganize on a shop-and-street-nuclei basis.
The Workers (Communist) Party in August 1925 passed a resolution to dissolve itself and its language federations. Subsequently
the Finnish Federation dissolved but an Interim Committee was
established to look after the affairs of its locals. Thereafter, the
Interim Committee, took steps to lay the foundation for a new Finnish mass organization, and a new federation came into existence in
January 1927 as Shown by the report of proceedings of the Finnish
Workers Federation of the United States at the founding delegate
convention at Chicago, Illinois (exh. 13).
Evidence was introduced for the purpose of establishing the matters set forth in the previous paragraph. In his decision, the special
inquiry officer stated that since there was a dissolution of the Finnish
Federation in 1025, the Government must establish the existence of
an organization subsequent to 1925, and he specifically held that the
Finish Workers Federation of the United States was organized in
1027. It appears, therefore, that the special inquiry officer did not
regard the events preceding 1927 as having any direct bearing on the
respondent's case. Although most of the material antedating 1927
need not be considered, we will comment on two matters which do
have significance.
First, the 1925 report of the Central Executive Committee to the
Fourth National Convention of the Workers (Communist) Party, at
which time the Finnish Federation was actually a section of the
Party, contained the statement that the Party published 27 periodical publications in 19 languages. Included were the Finnish daily
papers—"Tyomies and Eteenpain," and it was stated that the Federation controlled the majority of membership or stock in its publishing concerns--Tyomies Society and Eteenpain Cooperative
Society (exh. 12). In this connection, the testimony of witness
E---S---- is to the effect that the left or Communist element in the
Finnish Federation established "Eteenpain" in 1921, and that he
(the witness) was the first editor and remained such until 1925. The
Executive Committee of the Finnish Workers Federation stated that
"Eteenpain" was directly owned and published by the Federation
("Eteenpain," issue of May 23, 1941, exh. 37). J—W— testified
that "Eteenpain" and "Tyomies" were official organs of the Finnish
Workers Federation. Commencing about 1931 and for some years
thereafter, "Eteenpain" was published at 35 East 12th Street, New
York City, which was also the address of the Communist Party National Headquarters and the Finnish Workers Federation. The two
daily papers were merged in 1950 under the name of "TyomiesEteenpain."
The second matter -elates to exhibit 7 which shows that the Finnish Socialist Federation, Inc., was organized under the law of Illi16

nois on October 31, 1921, and that on Augast 22, 1927, its name was
changed to Finnish Federation, Inc. It appears from the testimony
of witness J-W-, who also used the name H-P-, that he signed
a document relating to the corporation's change of name and that
Finnish Federation, Inc., was the Illinois corporation which was
identical with the unincorporated Finnish Workers Federation of
the United States that had been founded in January 1927. Exhibit

7 also shows that on March 19, 1930, this Illinois corporation was
authorized to de business in New York; that as of April 2, 1956,
there was no record of a surrender of authority; and that a suit
filed by Illinois against the corporation resulted in its dissolution
on May 26, 1938.
During the period that the Illinois corporation was authorized to
do busine s s in New York, the Finnish Workers Federation created

two corporations under the law of New York-Finnish Workers
Federation of the United States, Inc., on January 8, 1932 (exh. 6),
and F-A Printing Corporation on May 29, 1936 (exh. 5). The
relationship between these various Finnish organizations is established by exhibit 29 relating to Viesti, which was-a monthly publication of the Finnish Workers Federation. This exhibit contains
copies of the statements filed under the Act of August 24, 1912, during the years from 1931 to 1936, inclusive. From 1931 to 1935, the
publisher and the owner were shown as Finnish Federation, Inc.,
and in 1936 as F-A Printing Corporation. The stockholders of
Finnish Federation, Inc., from 1931 to 1935 were shown as certain
individuals and Finnish Workers Federation, except that "Inc." was
added on March 29, 1932, and it was referred to as Finnish Workers
Federation of United States, Inc., commencing on September 29,
1933.
The certifications dated September 28, 1934, and September 27,
1935, which are part of exhibit 29, supra, show that one of the trustees under a trust chattel mortgage was "W. L-." The certification
of September 29, 1936, indicates that the respondent was one of the
stockholders of F-A Printing Corporation and also one of the trustees under a trust chattel mortgage. W-L-- was one of the subscribers of the certificate of incorporation (exh. 5) filed by the F-A
Printing Corporation on May 29, 1936, and was named as one of the
dir cetera. The respondent admitted that he was the W -L- referred to in exhibit 5.
The respondent identified his signature on his 1940 Alien Registration Form (exh. 3) and on his preliminary form for petition for
naturalization (exh. 4) which was submitted to the Service in 1940.
The respondent also made statements (part of exh. 2) before officers
of the Service on May 30, 1944, and May 11, 1945. These three exhibits contain the respondent's admission that he was a member of

17

the Finnish Workers Society of Brooklyn from 1932 to 1940; that
he was its Recording Secretary from 1935 to 1938; and that he was
farm editor of a Finnish daily called "Eteenpain" which was published by Finnish American Printing Corporation or F–A Printing
Corporation. The issues of "Eteenpain" dated March 16, 1930, and
September 19, 1946, disclose the respondent as one of the four editors
and he is also shown as being one of the editors in the issue of September 30, 1939 (exhs. 14, 57 and 51). Witness J—W-- testified
that the Brooklyn Finnish Workers Club was a member of the Finnish Workers Federation.
From statements made by counsel at pages 20 and 24 of his brief,
it appears that he concedes that the respondent was a member of
Finnish Workers Federation of the linked States, Inc., the New
York Corporation which was created on January 8, 1932. He contends that the special inquiry officer held that the respondent was a
member in 1930, two years before the New York corporation was
chartered. Actually, the order to show cause does not contain the
word "Inc." and, since the special inquiry officer adopted its allegations as his findings of fact, he found the respondent to have been a
member of the Finnish Workers Federation of the United States
which is the precise name of the organization which was founded
at Chicago in January 1927. We do not I consider that it is of any
particular legal significance that this organization employed the
device of an Illinois corporation and later a New York corporation
inasmuch as 8 U.S.C. 1101(a) (28) specifically defines the term
"organization" as including a group of persons associated together
whether or not incorporated. This contention of counsel is, therefore, overruled.
In his brief (Point II), counsel assumes that the first charge in the
order to show cause is based on subparagraph (D) of paragraph (6)
of section 241(a) of the Immigration and Nationality Act [8 U.S.C.
1251(a)]. The order to show cause, the brief filed by the Service,
and the special inquiry officer's decision merely refer to section
241(a) of the Immigration and Nationality Act without specifying
the paragraph and subparagraph involved. Actually, the language
which appears in the order to show cause indicates that the first
charge is predicated on subparagraph (H) which incorporates
printed matter of the character described in subparagraph (G). The
language of these two subparagraphs which is pertinent to the respondent's case is as follows: "Aliens who are members of * * * any
organization that writes, circulates, distributes, prints, publilies, or
displays, * * * any written or printed matter * * * advocating or
teaching * *.* (v) the economic, international, and governmental
doctrines of wofild communism * *." Since counsel's argument on
this point would be equally applicable to subparagraphs (G) and
18

(H), we will consider it as being addressed to the statutory language
we have quoted.
In Point II of his brief, counsel contended that the statute authorized deportation only for membership in a continuing organization.
He asserted that the Finnish Workers Federation ceased to exist in
1940 or 1941, but this is disputed by the Service. The Finnish Workers Federation became a section of the International Workers Order
in June 1941 (exh. 35), and at a later date became known as Finnish
American Mutual Aid Society. Even the book edited by the respondent in 1953 (exh. 39, p. 230) quoted a 40th anniversary proclamation (1946) which indicated that the Finnish Workers Federation
was then in existence although its official name was Finnish American Mutual Aid Society. The 1946 proclamation was published in
the September 19, 1946, issue of "Eteenpain" (exh. 65). As we will
indicate, however, it is actually immaterial whether this organiza
tion ceased to exist about 1941.

Counsel's argument that the statutory language does not apply to
defunct organizations is predicated on the fact that subparagraph
(D) of 8 U.S.C. 1251(a) (6) employs the present tense. That is
also true with respect to all the other subparagraphs of 8 U.S.C.
1251 (a) (6). However, the opening sentence of that statutory provision makes it applicable to any alien who "is or at any time has
been, after entry, a member of any of the following classes of aliens."

Hence, it is immaterial that the present tense was used in the subparagraphs because the respondent was a member from 1930 to 1940
of the classes of aliens mentioned in subparagraphs (C), (G) and
(H).
In his argument under Point II, counsel contends that-the provisions of the Subversive Activities Control Act of 1950 (Title I of
the Internal Security Act of 1950; 64 Stat. 987) show that 8 U.S.C.
1251(a) (6) does not relate to defunct organizations which would be
unable to defend themeslves against the charge of being subversive.
Section 22 of the Internal Security Act amended the Act of October
16, 1918, as amended [8 U.S.C. 137, 1946 ed.], and counsel is correct
in his statement that much of the language was later incorporated
in the Immigration and Nationality Act [8 U.S.C. 1182(a) (28) and
1251(a) (6)1 Seetion 402(0(16) of the Immigration and Nationality Act [66 Stat. 279] repealed the 1918 Act and all amendments
thereto, thus effecting the repeal of section 22 of the Internal Security Act. Other provisions of the Subversive Activities Control
Act requiring communist organizations to register were not affected
by the repeal of section 22, thus indicating that the provisions relat
ing to registration of subversive organizations do not have any direct
bearing on the provisions relating to deportation.
Counsel stated that a question had been raised during the oral
19

argument as to whether the organization committed fraud by concealing its true purposes. We do not think there was such concealment but, on the contrary, as will hereinafter appear, we believe the
organization actually revealed its affiliation with the Communist
Party.
Under 8 U.S.C. 1251 (a) the delegated officers of the Attorney General must determine whether an alien is deportable. In the respondent's cam, this require a determination of whether the Finnish Workers Federation was an affiliate of the Communist Party and whether
it published the proscribed literature. The proceeding is not against
the organization, and there is no merit in counsel's argument that
the organization is defunct and cannot defend itself. The questinn
of whether the Finnish Workers Federation could have been required to register under the Subversive Activities Control Act is
entirely irrelevant..

Counsel stated that he has been unable to find any deportation
case based on membership in the Finnish Workers Federation. However, it is immaterial whether deportation has previously been
predicated on that fact, the only issue being whether this respondent
is deportable under the statute.
Counsel also stated that the decision in United States ex rel. Kettunon v. Reimer, '79 F.2d 315 (C.C.A. 2, 1935), shows that the Service during 1935 did not consider that membership in the Finnish
Workers Federation was a basis for deportation. The statute then
in existence did not authorize the deportation of a member of an
organization which was an affiliate of a proscribed organization, and
the question in that case was whether the alien himself was affiliated
with the Communist Party. However, it is clear from the opinion
that the charge of affiliation was based on acts entirely unrelated to
his admitted membership in a Finnish Workers Club. The court
merely stated that the Government did not claim that Kettunen's
membership in the Finnish Workers Club made him liable to deportation. There is nothing to indicate that the Government was
aware at that time that the Finnish Workers Federation was an
affiliate of the Communist Party and, as we have indicated, such
affiliation between the organization would not have rendered Kettunen deportable although he would have been deportable if he had
been affiliated with the Communist Party itself. For the reasons
mentioned, that case is of no assistance in determining the question
involved here. In view of the foregoing, we dismiss the various
,

contentions set forth in Point II of counsel's brief.
As we have indicated above, counsel evidently concedes that the
respondent was a member of the Finnish Workers Federation of
the United States, Inc., but he states that his sole activity in the
Federation was membership in a Brooklyn local. However, he eon20

tends that such membership was not meaningful. We will defer
discussion of this contention of counsel until later herein and will
first discuss the evidence relating to the affiliation between the Finnish Workers Federation and the Communist Party and the evidence which establishes that the Finnish Workers Federation dis
tributed and published printed matter advocating the doctrines of
world communism. The evidence as to these two matters is interrelated and much of it also has a bearing on whether the respondent's membership was meaningful.
In the fifth allegation of the order to show cause it was stated that
the Finnish Workers Federation was a "section, branch, affiliate or
subdivision" of the Communist Party of the United States. The
quoted words appear in 8 U.S.C. 1251(a) (6) (C) (v). In its brief
(Point II), the Service does not claim that the Finnish Workers

-

Federation was a section, branch or subdivision of tho Communist

Party but relies solely on the word "affiliate." This was also the
finding of the special inquiry officer.
Counsel contends in his brief (Point I, pp. 64) that 8 U.S.C.
1251(a) (6) does not include front organizations of the Communist
Party. He did not specifically concede or assert that the Finnish
Workers Federation was a Communist front organization. In any
event, the term "Communist front organization" does not appear in
8 U.S.C. 1251 (a) (6), and the issue in the respondent's case must be
determined, not on the basis of whether the Finnish Workers Federation was a Communist front organization, but whether it was an
affiliate of the Communist Party.
In this connection, counsel also asserts that the Service did not
prove that the Finnish Workers Federation was an integral part of
the Communist Party and he contends that the word "affiliate" must
be so limited under the rule of ejusdem, generis since he claims that
all the other words appearing in 8 U.S.C. 1251 (a)(6)(C) (v) plainly
refer to integral parts of the Communist Party. The International
Workers Order was apparently not an integral part of the Communist Party but we have previously held that it was an affiliate of the
Party (Matter of D—, ,supra,, 4-578, 580; rlfutGer of C—, 6-20, 21

(Atty. Gen., 1955). Furthermore, the doctrine of ejusdem, generis is
to the effect that, where general words in a statute follow the enumeration of particular classes of persons 01' things, the general words will
be construed as applicable only to persons or things of the same general
nature or class as those enumerated. In other words, this rule may be
utilized where there is an enumeration of particular classes followed by
a term such as "other." Here, only specific terms were used and they
are not followed by any general term. Accordingly, the doctrine of
21

ejusdem generi8 has no application to the respondent's case and we
reject this contention of counsel.
The words appearing in a statute are to be given their ordinary
and commonly understood meaning (Addison v. Holly Hill Fruit
Products, 322 U.S. 607, 618 (1944)). In addition to the commonly
understood meaning of "affiliate" as an organization created by or associated with another organization, we have also the specific definition
in 8 U.S.C. 1101(e) (2) that the giving or promising of support or of
money for any purpose to any organization shall be presumed to constitute affiliation therewith. The question of whether the Finnish
Workers Federation was an affiliate of the Communist Party is to be
determined in accordance with these criteria.
The report of proceedings of the Finnish Workers Federation of
the United States at the founding delegate convention in January
1927 (exh. 13) and the report of the second convention in 1929 (exh.
28) were identified by witness J 17
as being official printed oopies
of the minutes of the two conventions. The 1927 report shows that
the last convention of the former federation in 1925 empowered the
Finnish Bureau of the Workers (Communist) Party to take steps
toward founding a new Finnish workers' organization and to supervise its activities. The report contains the specific statement that
the new organization was being established along those lines laid
down by the Finnish Bureau of the Party.
The report of proceedings of the 1929 convention of the Finnish
Workers Federation (exh. 28, English translation at the page numbers indicated) discloses the following information. There are such
statements as "Long live the Communist Party of America" and
"Long live the Communist Internationale" (pp. 32, 35, 43). It was
stated that the Federation's purpose was to follow the ideals of the
Workers (Communist) Party and of the Communist Internationale
(p. 28), and that "Eteenpain," from the ideological standpoint, had
represented the correct Workers (Communist) Party political line
(p. 40). The 1929 convention decided that the Federation offices
should be moved to New York in order that the Federation might
have daily contact with the Central Office of the Executive Committee of the American Communist Party and might be drawn
closer to the Party (pp. 4 1 42). All members of the Federation
were urged to join the Communist Party and to become active in it
(pp. 14, 16).
In If jar v. Doak, 61 F.2d 566, 569 (C.C.A_ '7, 1982), it was stated
that in the absence of evidence to the contrary it would be presumed
that the organizations continued to advocate and teach the same
principles as were set forth in the documents produced. No evidence
was offered in the respondent's case to show that the Finnish Workers Federation ever ceased its support of the Communist Party. On
-

-

-

22

—

the contrary, there is specific evidence of the continuation of such
support.
Exhibit 14 consists of those pages of the March 16, 1930, issue of
"Eteenpain" which contained the February 1930 open letter of the
Comintern to the Central Executive Committee of the Communist
Party of America. The letter discussed the Finnish mass organizations, the Finnish Workers Clubs and the three Finnish daily papers,
and it was specifically addressed to the Finnish members of the
Communist Party and contained instructions to them. These Finnish members constituted Communist fractions in the Finnish Workers Federation and in its local clubs. Exhibit 14 contains statements that the newspapers of the Finnish Workers Federation had
been brought more clOsely under the influence of the leadership of
the Communist Party; that friction between the Finnish Workers
Clubs and the Communist Party should cease; and that all activity
in the Finnish Workers Clubs must be under the direction of the
Party and under the guidance and leadership of the Communist
fractions. The letter shows the attitude of the Comintern and of
the Communist Party of America toward the Finnish Workers Federation and does not, of course, disclose the Federation's attitude
toward the former. Nevertheless, when "Eteenpain," an official
organ of the Finnish Workers Federation, published this letter, we
believe the conclusion is inescapable that the Finnish Workers Federation was openly admitting its connection and affiliation with the
Communist Party and indicating approval of the statements in the
letter.
Exhibit 19 is a copy of the magazine Punataltti (Red Star). On
its first page appears the statement that it was published in New
York City in 1934 by the Finnish Federation, Inc. Commencing on
page 30 is an article by Hans Johnson, Secretary of the Finnish
Workers Federation, in which readers were urged to join the Finnish Workers Federation and the Communist Party of the United
States. The article concludes with the statement that this will help
the workers to gain victory in overthrowing the whole capitalist system and establishing a Soviet America. In an article commencing
on page 48, a number of publications were listed including the "Communist Manifesto," "Lenin and Leninism," and "State and Revolution," and it was stated that these could be purchased from the Finnish Federation, Inc. The same magazine contains a poem by the
respondent which refers to the example of the men and women of
Moscow and the ultimate victory of the sickle and hammer people.
Exhibits 71 and 72 are English documents with Finnish translations which were published by Finnish Workers Federation and
Finnish Federation, Inc., respectively. Exhibit 71 contains the report of the Central Committee to the Eighth Convention of the

23

Communist Party of the United States in 1934 as delivered by Earl
Browder. Exhibit 72 is a pamphlet entitled "Toward Revolutionary
Mass Work" which was issued by the Central Committee of the
Communist Party in 1932. Exhibit 25 is a document published by
Finnish Federation, Inc., about 1935 containing the Finnish version
of Dimitrov's closing speech to the Seventh Congress of the Third
Internationale in 1935 and including also the resolution adopted by
the Congress.
A pamphlet (exh. 26) was published by "Eteenpain" at Worcester,
Massachusetts, about April 1930 to commemorate its tenth anniversary. It contains two poems by the respondent and an article by
him entitled "The Eteenpain on the Cooperative Front." In this
article it was stated that the newspaper "stands for an ironclad and
uncompromising class struggle viewpoint, the Marxist-Lenin cooperative line * *" ; that the paper bears witness to the truth of
the teachings "of our great leader, Lenin"; and that, after the revolution of the proletariat, workers' cooperatives shall be the first
socialist institutions. The same exhibit also contains an article by
Richard Pesola, then editor of "Eteenpain," in which he referred to
the dismissal of two "Eteenpain" officials on December 30, 1928,
and said: "Since then there has been but one staff on the 'Eteenpain,'
whose highest ambition has been to advance the principles and
wishes of the Commtmist Party among the Finnish workers_"

Exhibit 24 is a magazine celebrating the 15th anniversary of Soviet Karelia. It was published in 1935 by the Finnish Federation,
Inc. On page 96 of the magazine appears an advertisement concerning the Finnish Workers Federation's newspapers and literature
which reads, in part, as follows: "It has fallen to the lot of our
Federation's newspaper businesses to provide our Finnish American
people with Marxist - Lenin literature * * *. Our newspaper publishing activity is widespread. We distribute from 100,000 to 200,000
books and articles annually. * * * Books by Marx, Engels, Lenin,
Stalin, Kuusiuen, Browder, and by our other great leaders for
worker reading and study clubs." The advertisement also contains
the statement that "Eteenpain" and "Tyomies" are its newspapers
and that "Eteenpain" is the chief spokesman for the Finnish Workers Federation.
As we indicated above, the two remaining daily papers of the Finnish Workers Federation were merged in 1950 under the name of
"Tyymies - Eteenpain." A 60 - year - history of the "Tyomies" was published in 1953. The title page shows that it 'was edited by W—L
and his photographs on pages 222 and 240 indicate that he was then
one of the editors of "Tyomies-Eteenpain." The special inquiry officer identified these photographs as relating to the respondent, and
counsel also refers to the fact that this book was edited by the re24

spondent (brief, p. 17). This book, in Finnish, and an English
translation comprise exhibit 39.
In his brief, counsel quoted parts of two paragraphs from the book
mentioned above, and counsel claims that this shows the respondent's
understanding of the democratic character of the Finnish Workers
Federation and "Eteenpain." The quotation begins with the statement: "One of the guiding principles of our paper and our Federa-

tion along its 50-year journey has been and will continue to be the
fight in behalf of democracy." Between the two excerpts quoted by
counsel, there appears the statement that while the Federation was
part of the Socialist Party the leadership represented a typically
middle-class form of democracy; that the Federation's papers published many articles on Lenin's theoretical articles; and that from
the days of the Russian October Revolution an internal dispute
commenced in the Socialist Party and the Federation "which confirmed our membership and our papers' reading public in their conception of Marxist democracy." Hence, we are satisfied that, when
the respondent speaks of democracy, he refers to that which Soviet
Russia regards as democracy. and not to democracy as it is understood in this country or other countries of the Free World.
From a consideration of exhibit 39 in its entirety, we believe the
conclusion is inescapable that "Eteenpain," "Tyomies," the merged
paper, and the Finnish Workers Federation have consistently supported the Communist Party and that they have published printed
matter advocating the doctrines of world communism. For example,
on pages 236 and 237 it was stated that after World War II a new
force appeared whose objective was the downfall of the Soviet
Union; that the World was divided into two camps, on one side
being the Soviet Union, "the people's democracy countries" and
independence-seeking colonies, and on the other side being the "Wall
Street-led imperialists"; and that "Tyomies" held fast to the principles of the international labor movement. At pages 251-252 there
is a reference to the books which the Federation and its newspapers
had published, including the "Communist Manifesto" and classics
on the fundamentals of Marxism. On pages 253 to 255 it was stated
that those who dared to hold that the Korean war was unnecessary
were taken to a place of deportation, and that speaking in behalf
of peace and presentation of true facts was "working in behalf of
the enemy." The following statement (p. 255) is also significant:
"During the election campaign [presumably the campaign in the
fall of 1962J, both major party presidential candidates ---ied with
each other as to who could best assure reactionaries that he was the
better opponent of comunism—in other words, the better qualified
to defeat democracy and to destroy our Constitution."
In his brief, counsel contended that the respondent's membership

25

in the Finnish Workers Federation was not a "meaningful association" under the decision in Rowoldt v. Perfetto, 355 U.S. 115 (1957),
and that he was not aware of the alleged affiliation between the Federation and the Communist Party. Counsel stated that the special
inquiry officer, in his opinion, conceded in effect that there is only
circumstantial evidence that the respondent was aware of the alleged
affiliation between the Finnish Workers Federation and the Communist Party. We have found no basis for this assertion; on the
contrary, the special inquiry officer specifically found that the
respondent's knowledge of the affiliation had been established.
Counsel asserts that the local clubs of the Finnish Workers Federation were engaged in such activities as sports, drama and social
affairs and he has referred to the testimony of Government witness
J—W— who stated that the majority of the local club members were
interested in such activities. Counsel also cited our decision in
Mattar of C

,6

oupra.

There it was held that an alien charged

with membership in a Communist front organization (the International Workers Order) was not deportable if he, in fact, did not have
knowledge of the relationship of the organization to the Communist
Party, and the respondent's case must, of course, be decided in accordance with that principle.
The respondent failed to testify during the immigration hearing
as to whether he did or did not have knowledge of the affiliation between the Finnish Workers Federation and the Communist Party,

and we will later discuss his reasons for not testifying. Counsel's
claim that the respondent had denied the affiliation was apparently
predicated on information appearing in the respondent's 1944 and
1945 statements (part of exh. 2). It is true that at that time the
respondent had testified that the organizations of which he was a
member were not affiliated in any way with the communist movement. Counsel says that this testimony is entitled to great weight
because it was given long before the immigration proceeding was
instituted. However, the respondent was then an applicant for
naturalization and section 305 of the Nationality Act of 1940 [8
U.S.C. 705, 1946 ed.] provided for the denial of a naturalization
petition if the alien had been a member of a subversive organization
during the preceding ten years. Under these circumstances, we believe it would be extremely naive to assume that the respondent
would have disclosed that he was a member of an organization affiliated with the Communist Party.
The respondent was one of the editors of "Eteenpain," an official
organ of the Finnish Workers Federation, as early as 1930. We
have previously mentioned a document published by "Eteenpain"
about April 1930 which contains an article by the respondent showing that he was already aware that, in the cooperative field, "Eteen26

pain" "stands for an ironclad and uncompromising class struggle
viewpoint, the Marxist-Lenin cooperative line." As late as 1952,
he was a member of the editorial staff of the Federation's piper,
"Tyomies-Eteenpain." The book edited by him in 1953 (exh. 39)
also shows that he had full knowledge of the affiliation between the
Finnish Workers Federation and the Communist Party and that he
was aware that the Finnish Workers Federation distributed and
published printed matter advocating the doctrines of world communism. In view of the respondent's employment with the Federation's newspapers in an editorial capacity for many years, and taking
cognizance of his writings previously referred to in this decision, it
is our considered opinion that the Government has established by
reasonable, substantial and probative evidence that the respondent's
membership in the Finnish Workers Federation was a "meaningful
association"; that he was a "member" of that organization as the
term "member" has been judicially defined; and that this organization was an affiliate of the Communist Party. Upon the basis of
the various documents previously mentioned which were disseminated by the Finnish Workers Federation, we also conclude that
this organization printed, published, circulated and distributed
printed matter advocating and teaching the economic, international
and governmental doctrines of world communism.
In Point V of his brief, counsel asserts that the respondent's heart
condition would maim it hazardous for him to testify. At the beginning of the hearing, the respondent was sworn and gave some

testimony but he refused to answer when asked whether he had ever
been a member of the Finnish Workers Federation. During that
part of the hearing which took place from June 5 to June 17, 1958,
the respondent was asked many questions but he refused to answer
theni at that time on the ground that the Government had the burden
of establishing its case. On June 17, 1958, the examining officer

stated that the Government rested and there was an adjournment of
the hearing to permit translation of various exhibits.
Before the hearing reconvened on October 9, 1958, the respondent
had suffered a heart attack. A letter dated July 10, 1959 (exh. 76),
by the respondent's physician is to the effect that the strain of testifying might bring on another heart attack. Counsel took exception
to a statement of the Special inquiry officer (decision, p. 18) reading
as follows : "Assuming arguendo, that an act of God thereafter prevented him from fully testifying, the respondent - Must nevertheless
be held responsible for whatever consequence flow from the fact that
he failed to answer questions which he should have answered." The
special inquiry officer steed that he had not drawn any aaverse
inferences from the respondent's silence although he indicated that
he would have done so if there had been a failure of proof in any
27

element of the Government's case. We disapprove the special inquiry officer's statement as to the conditions under which he might
have drawn an inference. Under the circumstances of this case, we
do not believe that any unfavorable inference should be drawn because of the respondent's refusal to testify and no such inference
has been drawn by this Board.
In Point VII of his brief, counsel urges that the hearing should
be reopened to permit further cross-examination of the Government
witnesses although he did not indicate what facts he would expect
to establish if he were permitted additional cross-examination. He
relied on Jencks. v. United States, 353 U.S. 657, decided June 3, 1957,
and Carlisle v. Rogers, 262 F.2d 19 (C.A. D.C., 1958). The Jencks

case was decided long before the commencement of the respondent's
immigration hearing and any request for production of previous
statements of the witnesses should have been made prior to the completion of counsel's cross-examination of them. As a matter of fact,
this procedure was followed with respect to witness E—S— who

examined on March 26, 1958. Counsel requested a statement the
witness had made in 1954; it was furnished to him by the examining
officer at that time and counsel used it in cross-examining the witness.
While counsel's brief does not show the names of the witnesses he
desires to have recalled, it appears from the record that he refers
to witnesses H—M— and W— who had made previous statements
to officers of the Service. When these witnesses appeared at the
hearing during March and April 1958, they disclosed the fact that
they had previously been questioned by officers of the Service but
counsel made no request that their prior statements be produced.
The witnesses were then dismissed after counsel stated that he had
no further cross-examination.
On June 10, 1959, over one year later, counsel requested that the
previous statements made by H—M-- and W— be produced and that
these witnesses be recalled. Thereafter, without conceding that counsel was entitled to these statements, they were submitted to him and
he offered in evidence four statements of W—M— and H—'s statement which were made part of the record as exhibits 77 and 79. The
Government offered the remaining M— statement which was admitted in evidence without objection as exhibit 78. The special
inquiry officer denied counsel's motion for the recall of these witnesses. Counsel takes the position that when these statements were
admitted in evidence he then acquired the right to cross-examine
the witnesses again. We do not perceive that the admission of these
exhibits served any useful purpose.. It any event, we have disregarded them and we hold that counsel was not entitled to again
cross-examine the witnesses merely because their statements were
introduced in evidence, particularly in view of the fact that it was
was

28

counsel himself who had requested the production of the statements
and who offered all but one in evidence.
Counsel also asserts that the exhibits of the Service commencing
with exhibit 34 were introduced after the witnesses of the Service
had completed their testimony and he contends that he should have
the right to cross-examine the witnesses on these exhibits since they
contain various references to the witnesses. It is obvious that there
could have been no direct examination of the witnesses on these
exhibits and it follows that counsel was not entitled to cross-examination of the witnesses on the exhibits introduced subsequent to the
completion of their testimony. If counsel desired the opportunity
to examine the witnesses concerning such exhibits, his remedy would
have been to call these persons as his own witnesses or request that
they be subpoenaed. Accordingly, we reject counsel's contentions
contained in Point VII.
The remaining contentions of counsel are without merit and do not
require specific discussion. Counsel stated that an application for
discretionary relief would not be made at the hearing. For the
reasons stated above, both charges are sustained and the respondent's
appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

29


Interim Decision #2147

MATTER OF NG

In Visa Petition Proceedings
A-20029181

Decided by Board April 28, 1972
The validity of the simple adoption of beneficiary under Chinese law and custom
(Tsing Code) in Hong Kong in 1954 is not vitiated by the fact beneficiary is a
female. The Tsing Code provided for two different kinds of adoptions: (1) a
"ritual adoption", an adoption of a male to act in the ritual capacity of an heir
to the ancestral cult associated with the agnatic lineage of the adopted father,
and (2) a "simple adoption", an adoption of a male or female to stand in the
relationship of son or daughter of the adoptive parent, but without acting in
the capacity of an heir to the ancestral cult or lineage. [Matter of Yiu, 13 I. &
N. Dee_ 624, overruled.]

ON BEHALF OF PETITIONER:

ON BEHALF OF SERVICE:

Charles J. Wong, Esquire
250 Columbus Avenue, Room 200
San Francisco, California 94133
(Brief filed)

R. A. Vielhaber
Appellate Trial Attorney
(Brief filed)

The lawful permanent resident petitioner applied for preference
status for the beneficiary as his Unmarried daughter under section
203(a)(2) of the Immigration and Nationality Act. The District
Director denied the petition in an order dated April 29, 1971, and

the petitioner appeals. The appeal will be sustained.
The beneficiary is an unmarried female, born July 1, 1949 in
Hong Kong, evidently of Chinese ancestry, who presently resides

in Hong Kong. The file contains an adoption agreement stating
that the beneficiary was adopted by the petitioner's wife on June
17, 1954. The petitioner, who was married to his spouse in Hong
Kong in 1938, stated in his petition that he had last resided
together with his wife in Hong Kong in 1948.
Section 203(aX2) provides for visa preference for qualified immigrants who are the unmarried sons or unmarried daughters of an
alien lawfully admitted for permanent residence. The beneficiary
is unmarried and the petitioner is an alien lawfully admitted for
permanent residence. There is no definition of "son" or "daughter"

in the Immigration and Natidnality Act, but "child" is defined in
135

Interim Decision #2147
section 101(b)(1). Subsection (E) defines "child" to include a child
adopted while under the age of fourteen years if the child has
thereafter been in the legal custody of, and has resided with, the
adopting parent or parents for at least two years. We have
previously held that a child adopted in compliance with section
101(b)(1XE) of the Act qualified as a "son" or "daughter" for
purposes of receiving preference status, Matter of Yue, 12 I. & N.
Dec. 747 (BIA, 1968).
We note that the two-year legal custody and residence requirement may be satisfied when custody and residence have been with
only one of the adoptive parents, Matter of Y ni"--W , 9 I. & N.
Dec. 176 (A.G., 1961). The file contains evidence that the petitioner's spouse has resided at her present address since at least
1961, and that the beneficiary resides at the same address. On the
basis of this we presume that the residence and custody requirement has been met. The adoption in the present case took place
before the beneficiary attained the age of fourteen years.
The District Director denied the petition because he was of the
opinion that the beneficiary could not be considered an adopted
child for purposes of section 101(b)(1XE) because she is a female.
—

—

He found that the validity of the adoption must be determined by

Chinese law and custom, or the Tsing.Code. The District Director
cited this Board's decision in Matter of Yiu, 13 I. & N. Dec. 624
(BIA, 1970), as authority for the proposition that the adoption of a
female is precluded under the Tsing Code. He accordingly denied
the petition.
It is well settled that the validity of an adoption upon which an
immigration status is grounded is governed by the law of the place
where the adoption status was created, Matter of 1?—, 6 I. & N.
Dec. 760 (BIA, 1961). In Matter of Yue, 12 I. & N. Dec. 747 (BIA,
1968), we held that the law of adoption applicable to Chinese
domiciled in Hong Kong is Chinese law and custom.
Counsel has furnished us with an expert opinion prepared by
Anthony Richard Dicks, a Barrister-at-Law in Hong Kong, who is
also a Lecturer in Oriental Law at the University of London. Mr.
Dicks defines "Chinese law and custom" as relating to Hong Kong
to mean "the rules of law which were generally in force in the
Chinese Empire on, 5th April 1848 together with and subject to

such rules of custom as were at that date and/or have thereafter
been applied in China or any part thereof or in Hong Kong with
the force of law." Chinese law and custom was described as "the
common law of China" in a decision of the Supreme Court of Hong
Kong, Ho Tsz-Tsun v. Ho Au-Siti, 10 H.K.L.R. 69 (1915). According
to Mr. Dicks, this definition has been adhered to and applied by
the courts of Hong Kong as denoting the customary law of China
136

Interim Decision #2147
"as partly evidenced by, but not necessarily as wholly defined by
or confined to, the provisions of the statutory law of the late
Ch'ing (Tsing) imperial dynasty as they were in force on 5th April
1843." We accept the expert opinion of Mr. Dicks on this point.
We agree with counsel that part of the confusion regarding
Chinese adoption stems from the use of the words "formal" and
"informal" to refer to the two kinds of adoption possible under the
Tsing Code. In Matter of Chin, 12 I. & N. Dee. 240 (BIA, 1967), we
endorsed the view that the Tsing (or Ching) Code provided for two
kinds of adoption, each with different legal implications: (1) adoption of a male child for the purpose of instituting him as an heir for
perpetuation of the ancestral cult, and (2) the adoption of a child,
whether male or female, without intending to institute it as an
heir. In Matter of Yue, supra, we referred to these two kinds of
adoption as (1) a formal adoption, and (2) an informal adoption.
We agree that it would be better to distinguish between "ritual
adoptions" and "simple adoption." Counsel would describe the first.
as "an adoption by a childless married man or his widow of a male
to act in the ritual capacity of an heir to the ancestral cult
associated with the agnatic lineage of the adopted father," and the
other as "the adoption of a male or female to stand in the
relationship of son or daughter of the adoptive parent, but without
acting in the capacity of an heir to the ancestral cult or lineage."
This definition agrees with the classification used by the noted
Dutch authority on Chinese law, Professor M. H. Van Der Valk, in
his text, An Outline of Modern, Chinese Family Law (Peking, 1939),
at page 134. Van Der Valk refers to the simple or "informal"
adoption simply as "an adoption."
This Board has on several occasions recognized the second kind
of adoption as valid for immigration purposes, Matter of Dung
Chan, VP3-I-123920 (BIA, unreported, April 30, 1962); Matter of
Chin, 12 I. & N. Dec. 240, supra. The cases of Matter of Yue, 12 I. &
N. Dee. '747 (BIA, 196k); and Matter of Lung Chart, VP2-I-123920
(BIA, unreported, April 30, 1962), both involved simple adoptions of
a female in Hong Kong. In both cases we approved the petition.
The provisions of the Tsing Code dealing with adoption were
construed by the Supreme Court of the Republic of China in 1918
to permit the adoption of a female child. See the reference to
Appeal Case No. 195 found in Matter of Yue, supra, at page 748.
Our decision in Matter of Yiu, supra, was in conflict with these
decisions recognizing simple adoptions. In Yiu, we held that
"Chinese customary law jin Hong Kong] permits adoption only for
purposes of succession to the family and is limited to males." The

authority cited in support of our holding was the. Report of the
137

Interim Decision #2147
Governor's Committee on Chinese Law and Custom in Hong .17cmg,
p. 200 (Hong Kong, 1948).
Petitioner's counsel asks that we reconsider and overrule our
precedent decision in Matter of Yiu, supra, on the basis of new
material not previously available to us. He points out that the
authorities cited in the Yin decision actually do not preclude the
adoption of females under the Tsing Code.
For instance, Appendix 9 of the Report of the Governor's Committee on Chinese Law and Custom in Hong :long was cited in
footnote 2 to support the proposition that only the formal institution of a male child as an heir was permitted in Hong Kong. The
expert opinions furnished by counsel support his position that the
writer of the appendix was not expressing the official view of the
Governor's Committee, but was merely stating his own personal
opinion. Further, it appears that his remarks were confined to the
subject of the formal institution of an heir.
An extract from a statement by Judge Russell of the Supreme
Court of Hong Kong, appearing in the report of the Governor's
Committee, was cited in footnote 3 in Yin. Counsel calls to our
attention the fact that the report of the Governor's Committee did
not contain the full text of Justice Russell's Report on Child
Adoption and Domestic Service Among Chinese. In fact, on page
two of the report, discussing the legal effect of the simple adoption
of females in Hong Kong, Justice Russell wrote the following:
They have equal rights with natural-born daughters. They are provided
with a dowry when married, but, like natural-born daughters, they have no
other claim on the inheritance.

Based upon the foregoing, we conclude that counsel is correct in
his contention that our decision in Matter of Yin, supra, was in
error. We accordingly overrule that decision on the basis of the
new material before us that was unavailable when we decided Yin.
Once our prior holding in the Yiu, case is overruled, the legal
basis for the District Director's denial of the present petition is
gone. We reaffirm our earlier holding in Matter of Yne, wpm,
which recognized the possibility of the simple adoption of a female
in Hong Kong. We shall proceed to resolve the present appeal on
the basis of the legal principles set forth in Matter of Yue, supra,
which antedated our decision in Yiu.
The evidence in the record establishes that a valid simple
adoption of a female child took place in Hong Kong in 1949. The
Service does not claim that there is no bona fide family unit. We
hold that such an adoption meets the requirements of section
101(bX1)(E) of the Act. We.accordingly overrule the District Director and hold that the beneficiary is entitled to preference status
under the provisions of section 203(a)(2) of the Immigration and
138

Interim Decision #2147
Nationality Act as the child of the petitioner. The following order
shall be entered.
ORDER: It is ordered that the appeal be and the same is hereby
sustained.

It is further ordered that the petition for preference classification filed by the petitioner pursuant to section 203(a)(2) of the
Immigration and Nationality Act be and the same is hereby

approved.

139


Interim Decision #1690

IAA rraw

OP IZAPBSICA

In Visa Petition Proceedings
A-14744930

Decided by Regional Coninaissioner December 80,1966
(a)
(6), Immigration and Nationality Act, as amended by P.L. 89-226, as a
general (live-in) maid, to assist petitioner's ailing wife in the performance of
household duties, is denied for failure to establish that he actually desires
and intends to so employ beneficiary since the only previous domestic help
engaged by him has been on a once-a-month basis, despite his wife's illness;
it has not been established that the situation, nature, or volume of work to be
performed have substantially changed to now require an individual in such
capacity; farther, petitioner states that beneficiary will go to school during the
day and will assist his wife when not attending classes which is not in accord
with the position specification of full-time domestic set forth in the Department
of Labor certification.

Visa petition to accord beneficiary preference classification under section 202

This matter is before the Regional Commissioner on. appeal from the
denial of the visa petition to accord the beneficiary preference classification under section 203(a) (6) of the Immigration and Nationality
Act, as amended.
The petitioner seeks the services of a general maid to clean house,
cook and do some ironing. Form ES 575B, "Job Offer for Alien
Employment", which has been submitted in this case contains the required certification of the Department of Labor as to the unavailability
of workers in the United States to perform such labor. It is further
reflected therein that the job does not call for any special education,
training or experience; that the alien will assist the petitioner's wife,
who has been ill, in the performance of household duties; that the rate
of pay for the position is $45 per forty-hour week, plus room and
board; that she would work daily from 8:00 a.m. to 6:00 p.m.
The beneficiary is an unmarried Polish citizen, born October 29,
1948 at Niwbiessczany, Poland. The petition shows her occupation as
"student and domestic" and states that "she is a young girl who will
attend school and do housework". Form ES-575A, "Statement of Qualifications of Alien", ieflecte that the beneficiary has attended school
-

54

Interim Decision #1690
through the eighth grade and has assisted her mother with household
duties.
The petitioner was interviewed at the Boston Office of this Service
at which time he stated that he and his wife occupy an eight-room
apartment in the six-family house which he owns • that he earns approximately $10,000 a year, such income being derived from house
rentals and from operation of his secondhand furniture store; that the
beneficiary (who is his niece) will go to school days, primarily to learn
English, and will assist with the housework; that he and his wife have
not previously employed a live-in domestic but have hired a person
once a month to help with the cleaning. It has been further asserted
on appeal that the petitioner's spouse is sixty -three years old and has
not been well since she had a gall bladder operation about three years
ago; that, in addition, she has three ruptures and can hardly walk;
that she will need constant help for the rest of her life.
The entire record in this case has been very carefully considered in
the light of the representations made on appeal. It is noted that the
only domestic help which the petitioner has engaged heretofore has
been on a once-a-month basis despite his wife's illness. It has not been
substantiated that the situation has changed to the extent that the
services of a sleep-in maid are now required, or that the nature and
volume of the work to be performed justifies the employment of an
individual in such capacity. We further find that the labor certification submitted in this matter reflects that the position calls for a fulltime domestic worker during daylight hours: The petitioner has
advised on interview, however, that the beneficiary will go to school
during the day and will assisthis wife with household duties when she
is not attending classes.
In view of the foregoing, we do not find it has been satisfactorily
established that the petitioner' actually desires and intends to engage
his niece as a general maid and that such employment will be in accordance with the conditions set forth in the Department of Labor certification. The decision of the District Director, therefore, will be affirmed.
It is ordered that the denial of the visa petition be and same is hereby
affirmed.

55


Interim Decision #2388

MATTER OF AH SAN
In' Exclusion Proceedings
A-20968308
Decided by Immigration Judge January 31, 1975
Affirmed (with qualification) by Board May 13, 1975
The applicant for admission is a native and citizen of Western Samoa. She•s the child of a
non citizen national born in American Samoa. She seeks admission as the daughter of an
alien lawfully admitted for permanent residence as the beneficiary of a second preference visa petition filed under section 203(a)(2) of the Immigration and Nationality Act.
Applicant's mother never resided in the United States, having only visited the United
States for three weeks. However, as a national of the United States, she need not have
resided in the United States to have,at least the rights of an alien lawfully admitted for
permanent residence. A national of the United States does not lose.such status unless he
does so by voluntary relinquishnient of Congress changes such status by legislation. The
immigration judge's order admitting the applicant for permanent residence is approved.
EXCLUDABLE:

Act of 1952—Section 212(a)(20) U.S.C. 1182(x)(20))---Immigrant—no

ON BEHALF

SERVICE: RobereT. Griffin, Esquire,
Thal Attorney
Los Angeles, California

valid immigrant visa.

OF

BEFORE THE IMMIGRATION JUDGE
(January 31, 1975)

The applicant herein is a single female alien 14 years of age, a native
and citizen of Western Samoa. The applicant arrived in the United
States on September 3, 1974, at Honolulu, Hawaii and at that time
presented an immigrant visa and a Western Samoan passport. The
immigrant visa which is Exhibit No. 3 in evidence discloses that it was
issued to the applicant on the basis of her having a second preference.
Attached to the visa is a visa petition which was filed by the applicant's
mother in her behalf and which was approved by the district director at
Honolulu, Hawaii On June 23, 1974, granting to the applicant preference
quota status under Section 203(a)(2) of the Immigration and Nationality
Act. The petition discloses that the applicant's mother is a national of
the United States by reason of birth at Malaeloa, American Samoa on
March 8, 1941. The Immigration Service presents the Issue that since
315

Interim Decision #2388
the mother Las not resided in the United States the applicant is not
entitled to a second preference.
The applicant testified that her mother has always resided in American Samoa except for a visit which she made to the United States in
1974, for three weeks, when she stayed at San Francisco, California and
then returned to American Samoa. She testified that this was the only
time that her mother has been in the continental United States. There is
no issue concerning the maintenance of the applicant. Although she is
only 14 years. of age the applicant will be in the custody of Reverend
Allan E. Williams, the father of a cousin of the applicant, and assurances
have been given by Reverend Williams that the applicant will be taken

care of in the United States. The only issue presented is the legal issue
concerning the rights of a national of the United States in 'conferring
preferences on the basis of their being considered to be permanent
residents of the United States. • .
There is little byway of legal authority with respect to the rights of
nationals of the United States. The only case -which has any analogy to
the facts in the instant easels Matter of B—, 6 I. & N. Dec. 555 where
the Board of mmigration Appeals considered the legal rights possessed
by nationals of the -United States with respect to filing petitions .for
relatives. The, Board there stated as follows at page 556 "Section 203(a)(3) provides a preference for children of aliens lawfully admitted for
permanent residence. The term "lawfully admitted for permanent residence" is defined in Section 101(a)(20) as the status of having been

accorded the privilege of residing in the United States as an immigrant.
The petitioner is a national in possession of a United States passport and
thus appears to have been lawfully accorded the privilege of residing
permanently in the United States. She will be regarded as elegible to
file a petition for a preference under Section 203(a)(3) and the visa
petition will be approved for third preference status for the minor
beneficiary." This decision would appear to hold that a national of the
United States may be considered to have the rights of a permanent
resident of the United States. I.would, however,, state this even more
broadly. A national of the United States does not have the rights of a
citizen of the United States. However, as ,a national he is accorded

certain rights and privileges by reason of being a national which should
be at least equal to those of an alien who has been admitted to the
United States. for permanent residence. In fact, the rights will be even

larger than those of an alien who has been admitted for permanent
residence because a national would not have. to comply with the requirements al the definition of a permanent resident as contained in
Section 101(a)(20) of the Immigration and Nationality Act, nor would
any strictures which may be contained in Section 212(a)(20) of the Act
apply. IL is noted that,in the report of the Committee on the Judiciary
316,

Interim Decision #2388
pursuant to Senate Resolution 137, dated April 20, 1950, it was stated at
pages 663 and 664 of the report with respect to natives of Guam and
American Samoa "Most of the native inhabitants of these possessions
are nationals of the United States and as such they are not subject to the
exclusion provisions of our immigration laws." (Report No. 1515).
This is similarly stated in Gordon and Rosenfeld – Immigration Law
and Procedure in Section 2.8(c) "But there are still some persons who

are noncitizen nationals. As such they are not aliens and consequently
have never been subject to the immigration laws. They can enter and
leave the United States at will, in the same manner as citizens." See also
Section 4.5(c) of the same volume.
The decisions of the Board of Immigration Appeals as they have been
rendered with respect to nationals of the United States and particularly
with respect to natives of American Samoa are not too clear insofar as
the issue in the present case is concerned. Those decisions are as
follows: Matter of S—,3 L & N. Dee. 589; Matter of B—,3 I. & N. Dec.
729; Matter of A—,5 I. & N. Dec. 144; Matter of T—,5 I. & N. Dec. 380.
The only recent reported decision by the Board of Immigration Appeals
relating to American Samoa is in Matter of Tuitasi rendered on September 26, 1674. This decision has been scheduled for publication.
As I have stated the published decisions are not too helpful in determining the rights of nationals of the United States. I consider that a
national while he does not have the rights of a citizen of the United
States has at least the rights of a permanent resident of the United
States, and that he has these rights regardless of whether he complies
with the usual requirements relating to permanent residence. In other
words, I do not believe that a national of the United States can ever
forfeit his right to enter the United States or to be considered as a
permanent resident of the United States unless he voluntarily renounces
his allegiance to the United States as a national of the United States. So
long as he retains his status as a national of the United States he should be
considered to have the rights of a lawful p ermanent resident of the United
States. It would, therefore not be necessary that he comply with such
matters as maintaining a residence in the United States or having
intention of returning to the United States or in connection with the filing
of a visa petition that he establish that he is a resident of the United
States. Apparently the theory of the Government is that the preference

prescribed by Section 203(a) of the Immigration and Nationality Act as
also in connection with the status as an immediate relative of the. nited
States under Section 201(b) of the Act was enacted by Congress for the
purpose of combining families and that it is to be used in that fashion.
Actually neither the Act nor the Regulations require that it be established that the beneficiary is accompanying or coming to join a permanent
resident of the United States. I do not believe that that is one of the
317

Interim Deasion #2388
requirements in connection with preferences or immediate relative
status, but even if it were to be taken to be so, I do not consider that it is
applicable where a national of the United States is involved. The national
is residing in a territory of the United States, being American Samoa, and
I see no reason why he should have to establish that he is residing within
the geographical United States for the purpose of conferring preference
upon a child.

will resolve the legal issue in this case in favor of the applicant. The
Immigration Service has, however, requested that because of the importance of the issue involved herein and for the purpose of getting a
specific adjudication of the question that I certify this case to the Board
of Immigration Appeals. I will do so.
ORDER: It is ordered that the applicant be admitted to the United
States for permanent residence.
IT- IS FURTHER ORDERED that this case be certified to the Board
of Immigration Appeals for final decision.

BEFORE THE BOARD
(May 13, 1975)
In a decision dated January 31, 1975, the immigration judge ordered

the alien applicant admitted to the United States for permanent residence, and he certified his decision to us at the request of the Service
because of the importance of the issue involved.
Our review of the record satisfies us that the decision of the immigration judge correctly sets forth the facts and properly applies the pertinent legal principles. We agree with his conclusion that Matter of B—, 6
I. Si N. Dec. 555 (BIA 1955), stands for the proposition that, although a
noncitizen national of the United States does not have the rights of a
citizen, he or she is accorded certain rights and privileges by reason of
being a national which are at least equal to those of an alien who has
been lawfully admitted to the United States for permanent residence.
We also concur in his observation that the rights of a noncitizen national
are greater than those of a lawful permanent resident because a noncitizen national is not subject to the definition of "lawfully admitted for
permanent residence" contained in section 101(a)(20) of the Immigration
and Nationality Act, nor is a national subject to the exclusion and
deportation provisions of the Act. •

We do note; however, that the immigration judge's statement that he
does not believe "that a national of the United States can ever forfeit his
right to enter the United States or to be considered as a permanent
resident of the United States unless he voluntarily relinquishes his
allegiance to the United States as a national of the United States,"
should be qualified with the observation that Congress can undoubtedly
deprive a noneitizen national of his status by legislation without regard
318

Interim Decision #2388
to voluntariness on the noncitizen national's part. Rabang v. Boyd, 353
U.S. 427 (1957); Manlangit v. INS, 488 F.2d 1073 (C.A. 4, 1973).
We shall affirm the decision of the immigration judge with the foregoing qualification.
ORDER: The immigration judge's decision is affirmed.

319


Interim Decision #2670

MATTER OF PATEL
In Deportation Proceedings
A-21093734
A-20915499

Decided by Board September 12, 1978
(1) A mere showing of the minimum statutory period of continuous physical presence
required for relief under section 244(a)(1) of the Immigration and Nationality Act, 8
U.S.C. 1254(a)(1), does not ordinarily, without more, establish the other statutory
prerequisites sufficiently to warrant reopening for a plenary hearing on that relief.
Conclusory assertions of hardship will not suffice to have proceedings reopened.
(2) Where the Board remands a ease to an immigration judge for further proceedings, it
divests itself of jurisdiction of that case unless jurisdiction is expressly retained. Where
jurisdiction is not expressly retained, the Board will deny for lack of jurisdiction
motions made to it after a case has been remanded.
(3) A remand, unless the Board qualifies or limits it for a specific purpose, is effective for
the stated purpose and for consideration of any and all matters which the immigration

judge deems appropriate in the exercise of his administrative discretion or which are
brought to his attention in compliance with the appropriate regulations.
(4) An outstanding order of deportation against a respondent is not disturbed by the fact
that the Board reopens deportation proceedings as to a different respondent whose
hearing was held jointly.
(5) A motion to sever deportation proceedings made in connection with motions to reopen
is moot where proceedings are reopened only as to one respondent.
CHARGE:

Order: Act of 1952—Section 241(a)(2) (8 U.S.C. 1251(a)(2))—Nonimmigrant—remained
longer (both respondents)
ON BEHALF OF RESPONDENTS:
Fred F. Filsoof, Esquire
1416 Gas Light Tower

ON BEHALF OF SERVICE:
Robert J. Bondi
Trial Attorney

225 Peachtree Street, N E

Atlanta, Georgia 30303

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

A motion has been filed to reopen these proceedings so as to allow the
*espondents or one of the respondents to apply for relief under se ctioll.
24.4(a)(1) of the Immigration and Nationality Act, S U.S.C. 1252(s)(1)'The Service has moved that the case of the female respondent be
600

Interim Decision #2670
severed from that of the male respondent. We shall deny the motion to
reopen as to the male respondent. We shall return the record file
without adjudicating the motion as to the female respondent for lack of
jurisdiction. The Service's motion is moot.
This is the third time this case has been before us. On January 18,
1978, we dismissed the respondents' appeal from the decision of an

immigration judge finding them deportable as overstayed nonimmigrants and denying their applications for adjustment of status under
section 245 of the Act, 8 U.S.C. 1255. On April 27, 1978, we denied the
respondents' motion to reopen and reconsider our decision of January
18, 1978. In this last order we ordered the reopening of the proceedings
as to the female respondent in view of the rights she has under the
provisions of 8 C.F.R. 242.17(c). We left undisturbed the outstanding
deportation order against the male respondent.
The male respondent has not made out a prima facie showing of
eligibility for relief under section 244(a)(1) of the Act warranting a
reopening so as to allow him to apply for that relief. Where reopening
for suspension purposes is sought, a mere showing of the minimum
statutory period of continuous physical presence does not ordinarily,
without more, establish the other statutory prerequisites sufficiently to
warrant reopening for a plenary hearing. Matter of Sipus, 14 L & N.
Dec. 229 (BIA 1972). Conclusory assertions of hardship are not sufficient to have proceedings reopened. Matter of Sipus, supra.
We do not have jurisdiction to adjudicate the motion as to the female
respondent. We note that when the Board remands a case to an immigration judge for further proceedings, it divests itself of jurisdiction of
that case unless jurisdiction is expressly retained. Further, when this is
done, unless the Board qualifies or limits the remand for a specific
purpose, the remand is effective for the stated purpose and for consideration of any and all matters which the Service officer deems appropriate in the exercise of his administrative discretion or which are
brought to his attention in compliance with the appropriate regulations.
Our order of April V, 1978, was not limited or qualified.
ORDER: The male respondent's motion to reopen is denied.
FURTHER ORDER: The record file is returned without adjudication of the motion as it relates to the female respondent for lack of
jurisdiction.

GOl