Interim Decision #2304

MATTER OF LENNON

In Deportation Proceedings
A-17595321
Decided by Board July 10, 1974

(1) Motion to defer decision on appeal in deportation proceedings pending outcome of
court actions by respondent the issues of which relate to his attempt to challenge the
district director's decision to issue order to show cause in his case, is denied since a
determination as to the institution of deportation proceedings against a deportable alien
is a matter outside the scope of jurisdiction of the Board. Further, the pursuit of
collateral remedies in the courts does not require the delay of deportation proceedings
against him (Matter of Agarwal, 13 I. & N. Dec. 171).
(2) Since respondent was found to be ineligible for adjustment of status under section 245
of the Immigration and Nationality Act as a matter of law, there was no opportunity for
exercise of discretion with respect to his application. Therefore, the claim of prejudgment advanced by respondent must necessarily be rejected.
(3) The decision whether or not to grant voluntary departure under 8 CFR 242.5, or to
revoke such privilege once granted, is a matter within the sole discretion of the district
director.
(4) Since "marilmana" includes "cannabis resin" within the meaning of section 212(a)(23)
of the Act, and since a conviction for possession of cannabis resin under the Dangerous
Drugs Act of 1965 of England required that the defendant have had knowledge that he
possessed an illicit substance which proved to be cannabis resin, respondent's conviction, upon a plea of guilty, to the charge of possession of cannabis resin in violation of the
Dangerous Drugs Act of 1965 of England is a conviction of a law relating to the illicit
possession of marihuana within the meaning of section 212(a)(23) of the Act. Therefore,
he is statutorily ineligible for adjustment of status under section 245 of the Act.
CHAROrs:

Order: Act of 1952—Section 241(a)(9) [8 U.S.C. 1251(a)(9)]—Non-immigrant visitor—
failed to comply with conditions of such status.
Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)—Non-immigrant,--remained
longer than permitted.
ON BEHALF OF RESPONDENT:
Leon Wildes, Esquire '
515 Madison Avenue
New York, New York 10022
H. Miles Jaffe and
Eve Cary, Esquires
New York Civil Liberties Union
84 Fifth Avenue
New York, New York 10011
(Amicus Curiae)

ON BEHALF OF SERVICE:
Vincent A. Schiano
Thal Attorney

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• Interim Decision #2304
Of counsel:
Burt Neuborne, Esquire
American Civil Liberties Union
22 East 40th Stieet
New York, New York 10016

The respondent is a male alien who is a native and citizen of the
United Kingdom. In 1971 he applied for a nonimmigrant visa and was
found by a consular officer to be ineligible for such a visa under section
212(a)(23) of the Immigration and Nationality Act because he had been

convicted of possession of marihuana. However, he applied for and
received a waiver of inadmissibility under section 212(d)(3)(A) of the
Act, which permitted him to be temporarily admitted to the United
States as a nonimmigrant.
The respondent entered the United States with his wife, a native and
citizen of Japan, on August 13, 1971. They were authorized to remain
until February 29, 1972, but they did not depart from the United States
by that date. They received a letter from the district director, dated
March 1, 1972, informing them that their authorized stay had expired,

that the Service expected them to depart from the United States by
March 15, 1972; and that failure to depart would result in the institution
of deportation proceedings_ On March 2, 1972, the respondents filed
petitions for preferred immigration status under section 203(a)(3) of the
Act.'
In a letter dated March 6, 1972, the district director informed the
respondent and his wife that the privilege of voluntary departure from
the United States had been revoked pursuant to 8 CFR 242.5(c) because
the district director had learned that they had no intention of departing
from the Unitel States by March 15, 1972. Orders to show cause were

issued on March 6, 1972 charging the respondent and his wife with being
deportable under section 241(a)(2) of the Act for having remained in the
United States after their authorized stay had expired on February 29,
1972. Superseding orders to show cause were issued the next day
repeating the charge of remaining longer than authorized and adding a
charge which alleged failure to comply with the conditions of nonimmigrant status under section 241(a)(9). The latter charge was not pursued
further by the Service.
A deportation hearing was held. In a decision dated March 23, 1973,
the immigration judge found (1) that the respondent and his wife were
nonimmigrants who had stayed longer than authorized and were there-

1

These petitions were approved on May 2, 1972.

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Interim Decision #2304
fore deportable under section 241(a)(2) of the Act; (2) that the respondent's wife was statutorily eligible for adjustment of status under section
245 of the Act, and that this relief should be granted in the exercise of
discretion; (3) that the respondent was statutorily ineligible for adjustment of status because he was inadmissible to the United States under
section 212(a)(23); and (4) that the respondent was statutorily eligible
for the privilege of voluntary departure and that he should be granted
this privilege in lieu of deportation. The immigration judge ordered the
respondent's wife's status adjusted to that of a permanent resident. He
denied the respondent's application for adjustment of status and

granted the respondent 60 days in which to depart voluntarily from the
United States. An alternate order of deportation to England was entered. 2 The respondent has appealed from that decision.
I. MOTION TO DEFER

On appeal, counsel has submitted a motion that we defer the decision
in this case pending the outcome of two court actions filed by the
respondent in the United States District Court for the Southern District
of New York. These suits involve three basic claims by the respondent.
Initially, the respondent is seeking pursuant to 5 U.S.C. 552(a)(3) to
compel production by the Service of certain data regarding "nonpriority" cases. 3 Counsel believes that the records relating to "nonpriority"
cases may show that the normal practice of the District Director is not
to institute deportation proceedings in circumstances similar to the
respondent's, and that therefore the District Director abused his discretion by issuing an order to show cause in the present case.
Similar claims have been made that a discretionary Service policy,
which permits certain deportable aliens who are beneficiaries of approved visa petitions to remain here until a visa becomes available, may
confer an enforceable right to remain in the United States. Such claims
have been consistently rejected. Vassiliou v. INS, 461 F.2d 1193 (C.A.
10, 1972); Spata v. INS, 442 F.2d 1013 (C.A. 2, 1971), cert. denied, 404
U.S. 857 (1971); Armstrong v. INS, 445 F.2d 1395 (C.A. 9, 1971); Bowes
v. District Director, 443 F.2d 30 (C.A. 9, 1971); Manantan v. INS, 425
F.2d 693 (C.A. 7, 1970); Lumargue v. INS, Civil No. 71-1886 (C.A. 7,
June 12, 1972); Discaya v. INS, 339 F. Supp. 1034 (N.D. DL, 1972);
Matter of Merced, 14 I. & N. Dec. 644 (BIA 1974); Matter of Gallares,
14 I. & N. Dec. 250 (BIA 1972); Matter of Geronimo, 13 L & N. Dec. 680
(BIA 1971); Matter of Li, 13 I. & N. Dec. 629 (BIA 1970). We have held
The respondent declined to designate a country to which he would prefer to be sent.
"Nonpriority" cases are those involving deportable aliens where the government, for
humanitarian or other reasons, chooses not to proceed with deportation proceedings or not
to execute a deportation order.
2
3

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Interim Decision #2304
that the decision to issue an order to show cause is a matter solely
within the scope of the district director's prosecutorial discretion. Matter of Merced, supra; Matter of Geronimo, supra; Matter of Gallares,
supra; cf. Matter of Anaya, 14 I. & N. Dec. 488 (BIA 1973). Our
function is not to review the district director's judgment in instituting
deportation proceedings, but to determine whether the deportation
charge is sustained by the requisite evidence. Since the information
regarding "nanpriority" cases relates to the matter beyond our scope of
inquiry, we see no reason to defer our decision pending the outcome of
court litigation which could take years, as counsel has admitted.
The respondent is also seeking an order compelling the Attorney
General and certain Service officials to perform their statutory duty
under 18 U.S.C. 3504 to affirm or deny the occurrence of illegal acts
allegedly committed against the respondent, including wiretap and electronic surveillance. In addition, a hearing is requested pursuant to 18
U.S.C.- 3504 to determine whether, and to what extent, unlawful acts
have influended the determinations made by the Service in the respondent's case. The respondent's request for ari order enjoining deportation
proceedings pending the outcome of his court actions was denied by a
judge or the United States District Court for the Southern District of
New York in a decision dated May 1, 1974.
Counsel claims that a court is the only forum in which evidentiary
hearings under 18 U.S.C. 3504 can be conducted. We reject this contention. By its very terms, 18 U:S.C. 3504 is applicable to administrative

hearings, and motions to suppress'evidence have heretofore been made
and adjudicated in deportation proceedings before immigration judges.
See Matter of An, Yim and Lam, 13 I. & N., Dec. 294 (BIA 1969), aff'd,
Au Yi Lau ,t. INS, 445 F.2d 217 (D.C. Cir., 1971), cert. denied, 404
U.S. 864 (1971); Matter of Wong, 13 I. & N. Dec. 820 (BIA 1971); Matter
of Perez Lopez, 14 I. & N. Dec. 79 (BIA 1972). '
-

Counsel did not present his motion under section 3504 at the hearing
before the immigration judge. In an appropriate case, we can remand
the proceedings to the immigration judge for a hearing on a motion
under section 3504. Before we remand, however, 'we must be satisfied
that a useful purpose would be served by such a remand, and that there
was a valid reason why the motion was not presented to the immigration
judge at the time of the hearing.
It is unclear exactly how much evidence of surveillance must be
presented for a party to show that he or 'She is "aggrieved" within the
meaning of section 3504(a)(1). Compare In re Evans; 452 F.2d 1239 (D.C.
Cir., 1971), cert. denied, 408 U.S. 930 (1972), with United States v. Doe,
460 F.2d 328 C.A. 1, 1972). However, it is not necessary for us to reach
that issue.
In the present case, all counsel has presented is a photocopy of an
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Interim Decision #2304
undated memorandum indicating that some unknown party wished the
respondent to be placed under surveillance. Counsel has refused to
divulge how, when, and from whom that memorandum was obtained
(Transcript of oral argument, pp. 25-31). We need more information
than has been presented to warrant a remand for further hearing before
the immigration judge.

Moreover, the thrust of the material offered seems to be in the
direction of showing that someone improperly influenced the district
director to institute deportation proceedings. As we have already
stated, this is a matter outside the scope of our jurisdiction. Section 3504
relates to evidence. Counsel has not claimed that any evidence relating
to deportability or ineligibility for adjustment of status may have been
illegally obtained. In fact, since the evidence in the case consisted solely
of the respondent's admitted presence in the United States after February 29, 1972, and the record of his conviction which he readily admitted, we have great difficulty in ascertaining what evidence the respondent may hope to have suppressed.
Finally, the respondent claims that his case has been prejudged by
the Service. Counsel has cited Accardi v. Shaughnessy, 347 U.S. 260
(1954), and Bufalino v. Kennedy, 322 F.2d 1016 (D.C. Cir., 1903), as
authority for this contention. Both of those cases involved aliens who
were concededly deportable and were denied discretionary relief from
deportation. Both aliens challenged the denial of discretionary relief on
the ground that statements by the Attorney General had prevented the
Board (or, in Bufalino, the Service) from making an independent discretionary determination as required by the applicable regulations. On
appeal it was held that the district court should have given the aliens an
opportunity to prove their allegations of prejudgment.
The present case, however, is distinguishable from Bufalino and
Accardi. The respondent was found to be statutorily ineligible for
adjustment of status. Since the immigration judge ruled the respondent
ineligible as a matter of law, he never had an opportunity to exercise his
discretion with regard to the application for adjustment of status.
Therefore, he cannot be considered to have prejudged the respondent's
application. See Marcello v. Bonds, 349 U.S 302, 313 (1954). The only
discretionary relief for which the respondent was found to be statutorily
eligible was voluntary departure, and with respect to this relief the
immigration judge exercised his descretion in favor of the respondent.
Coimsel has characterized the immigration judge's refusal to terminate proceedings as improvidently begun, and his refusal to issue subpoenas, as instances where applications for "discretionary relief" were
prejudged. Counsel's characterization is incorrect. Those requests related to matters outside the scope of the immigration judge's jurisdiction, and therefore his denials were proper as a matter of law.
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Interim Decision #2304
The power to terminate proceedings as improvidently begun belongs
to the district director, who is an enforcement officer. The district
director declined to move for termination of the present proceedings
(Transcript of hearing, p. 1). As a quasi-judicial officer, the immigration
judge had no power to grant the relief sought by counsel except upon
the motion of the district director. 8 CFR 242.7; Matter of Wong, 13 I. &
N. Dec. 701, 703 (BIA 1971); cf. Matter of Vizearra-Delgadillo, 13 I. &
N. Dec. 51 (BIA 1968).
On June 27, 1972, after the hearing had been completed, counsel
moved that the immigration judge issue subpoenas pursuant to 8 CFR
287.4(a)(2). The subpoenas were sought in order to obtain evidence in

support of the respondent's motion to terminate the proceedings as
improvidently begun. Since the subpoenas related to a motion that the
immigration judge had no power to consider, his refusal to issue the
subpoenas was proper. See Kahook v. Johnson, 273 F.2d 413 (C.A. 5,
1960); Matter of Anttalainen, 13 I. & N. Dec. 349 (BIA 1969).
If the respondent had made a sufficient showing that illegal acts took
place which might have tainted evidence used at the hearing, or if he
had establiEhed a prima facie case of prejudgment, we would not have
to defer to a court, but rather could remand the proceedings to an

immigration judge for further hearing. In essence, however, the issues
in both of the respondent's court actions relate to his attempt to challenge the district director's decision to issue an order to show cause.
Determinations relating to the district director's decision to institute
deportation proceedings are not germane to our function.
We are not required to delay deportation proceedings to allow the
respondent to pursue collateral remedies in the courts. Matter of
Agarwal, 13 I. & N. Dec. 171 (BIA 1969). The ends of justice are best
served by insisting upon a speedy resolution of the administrative
deportation proceedings. Should the collateral challenge remain undecided upon the conclusion of the deportation proceedings, the alien could

then apply to the district director for a stay of deportation pending the
outcome of his other litigation, and he could seek review of a denial of
such a stay in the federal courts. This approach should afford an opportunity for any respondent with a meritorious claim to preserve his
rights, while not providing an extra measure of delay for those who in
reality seek nothing more. We must, therefore, deny the respondent's
motion that we defer our decision.
In a letter to the Chairman of the Board of Immigration Appeals
dated November 16, 1973, counsel expressed his understanding that we
had agreed to inform him of our decision on his motion to defer prior to
rendering a decision on the merits. Counsel was informed by a letter
dated November 20, 1973 that such an understanding was incorrect.
Counsel had more than seven months in which to prepare for oral
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Interim Decision #2304
argument on the merits of the case. He was informed in advance of oral
argument by telephone and letter, and again at oral argument, that we
believed he had sufficient time to prepare and that we expected argument on the merits. It was made clear to counsel at oral argument that
by not arguing on the merits he was taking the risk, if the decision on his
motion was adverse, that he would not have a further opportunity to
argue. Counsel indicated that he fully understood our position (Transcript of oral argument, p. 13). He declined argument on the merits and
stated that he would rely instead on his extensive brief (Transcript of
oral argument, p. 47).
IL DEPORTABILITY

The respondent is charged under section 241(a)(2) with having remained in the United States after the expiration of his authorized stay
as a nonimmigrant. The respondent's authorization to remain in the
United States ended on February 29, 1972, but the district director, in
the exercise of discretion pursuant to 8 CFR 242.5, granted the
respondent the privilege of departing voluntarily on or before March 15,
1972. The district director's discretionary action did not extend the
period of the respondent's authorized stay, nor did it restore him to a
lawful nonimmigrant status; the respondent remained here merely at
the sufferance of the district director. Matter of Merced, 14 I. & N. Dec.
644 (BIA 1974); Matter of Gallares, 14 I. & N. Dec. 250 (BIA 1972). 4
On March 6, 1972, the district director revoked the respondent's
privilege of voluntary departure pursuant to 8 CFR 242.5(c). This
regulation allows a district director to revoke voluntary departure
granted under 8 CFR 242.5 without notice if he ascertains that the
application for voluntary departure should not have been granted. The
regulations vest no authority in the Board to review such a revocation.
See 8 CFR 242.5(c); 8 CFR 3.1(b). The decision to revoke a grant of
voluntary departure and institute deportation proceedings is a matter of
prosecutorial discretion which is outside the Board's jurisdiction. Matter
of Merced, supra; see Matter of Geronimo, 13 I. & N. Dec. 680 (BIA
1971); Matter of Gallares, supra. The respondent cannot claim that he
was induced to remain past February 29, 1972 by the grant of voluntary
departure, since at the time the district director granted that privilege,
on March 1, 1972, the respondent had already remained longer of his
own volition.
•
4 The discretionary grant of voluntary departure under 8 CFR 242.5(b) should not be
confused with action that a district director may take under 8 CFR 214.1(a) to extend the
period of a nonimmigrant's authorized stay pursuant to an application made by a nonimmigrant whose authorized stay has not yet expired. We cannot agree with language on
page 3 of the immigration judge's opinion which indicates that the granting of the privilege
of voluntary departure by the district director extended the period of the respondent's
authorized stay.

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Interim Decision #2304
The present case can be distinguished from Matter of Siffre, 14
I. & N. Dec. 144 (BIA. 1973). That case dealt with an alien who had been
admitted as a nonimmigrant student for- a fixed period of time.. Before
the authorized stay had 'expired, the district director attempted to
"revoke" the •lien's nonimmigrant student status and to charge him
under section 241(a)(2) as a nonimmigrant who remained longer than
permitted. We held, that the district director had no authority to "revoke" a nonimmigrant status. If the district director believed that the
alien was violating the , conditions of nonimmigrant status, he. shouk
have instituted deportation proceedings under section 241(a)(9) for fail
ure to maintain nonimmigrant status. The district director's other op
tion was to wait until the alien's authorized stay had expired and then, i
the alien failed to depart, to- institute deportation proceedings uncle
section 241(a',.(2) , based upon the alien's having remained longer the.]
permitted. . ,
The respondent's . situation,• however, is quite ;different. His au
thorized stay expired on February ,29, 1972. At that point he lost hi:
lawful nonimmigrant status. He remained in the, United States merel;
as a deportable alien who had been granted the discretionary privilege
of departing voluntarily pursuant to 8 CFR 242:5. The decision whether
or not- to grant voluntary departure under 8 CFR 242.5, or to revoke
such privilege once granted, is a matter, within the sole discretion of thE
district director. We conelmle that deportahility under section 241(a)(2'
of the Act has been- established by evidence that is clear, convincing ant
unequivocal.
DI. ELIGIBILITY FOR ADJUSTMENT OF STATUS

The respondent applied for adjustment of status under 'section 245 of
the Act. In order to show eligibility for adjustment of status; an alien
must establish that he was inspected` and 'admitted or paroled into the
United States, that he is eligible to receive an immigrant visa, that he is
admissible to the United States for permanent residence, and that an
immigrant visa is immediately available. sfile adjustment of 'status is a
privilege, the alien has the burden of establishing his eligibility. 8 CFR
242.17(d); Montemvrro v. INS, 409 F.2d 832 (C.A. 9, 1969); Cabrera v.
INS, 415 F.2d 1096 (C.A. 9,' 1969).
The immigration judge found that the respondent was not admissible
to the United States for permanent residence because he was excludable
under section 212(a)(23) of the Act as one who had been convicted of
violating a law relating to the illicit possession of marihuana. Section 212
(a)(23) provides for the exclusion of:
Any alien who has been convicted of a violation of, or a conspiracy to violate, any law
or regulation relating to the illicit possession of or traffic in narcotic drugs of
marihuana ..

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Interim Decision #2304
A certified copy of a record of conviction was placed in evidence,
showing that on November 28, 1968, the respondent pleaded guilty in
the Marylebone Magistrates' Court (England) to a charge of having a
dangerous drug, cannabis resin, in his possession without being duly
authorized (Ex. 10). The British statute which he violated was Regulation 3, Dangerous Drugs (No. 2) Regulations, Dangerous Drugs Act of
1965. Copies of the British statute and regulations were introduced as
Exhibit 11. The pertinent statutory provisions are:
Dangerous Drugs Act 1965, section 1:
The drugs to which this Part of this Act applies are raw opium, coca leaves,
poppy-straw, cannabis, cannabis resin and all preparations of which cannabis resin
forms the base
Regulation 3, Dangerous Drugs (No. 2) Regulations 1964:
A person shall not be in possession of a drug unless he is generally so authorised or,
under this Regulation, so licensed or authorised as a member of a group, nor otherwise than in accordance with the provisions of these Regulations and, in the case of a
person licensed or authorised as a member of a group, with the terms and conditions
of his licence or group authority.
The respondent has admitted that the record of conviction relates to
him (Transcript of hearing, p. 30). Nevertheless, the respondent contends that his conviction does not place him within the exclusion provision of section 212(0(23) because (1) the British statute under which he
was convicted did not require mans rea, and (2) cannabis resin is not
"marihuana" within the meaning of section 212(a)(23).
As to the contention regarding mans rea, it is maintained by counsel
in his brief that a binoculars case containing cannabis resin was found in
the respondent's house, but that the respondent had no knowledge of
the presence of the drug (Respondent's brief on appeal, p. 54; Transcript
of hearing, p. 81). He pleaded guilty, counsel alleges, because lack of
knowledge was not a defense to a prosecution under the Dangerous
Drugs Act of 1965 (Transcript of oral argument, p. 46). Therefore,
counsel claims, the respondent's plea of guilty was an admission only of
physical control of a binoculars case which proved to contain a dangerous drug (Respondent's brief on appeal, p. 62). Counsel argues that the
respondent did not admit any knowledge of the drug's presence, and
that he therefore would not come within the class of persons whom
Congress wished to exclude under section 212(a)(23).
The provisions of section 212(a)(23) were intended to deal with foreign
as well as domestic convictions. See Matter of Gardos, 10 1. & N. Dec.
261 (BIA 1963, aff'd Gardos v. INS, 324 F.2d 179 (C.A. 2, 1963); cf. S.
Rep. No. 1515, 81st Cong., 2d Sess. 410 (1950). However, under federal
law, in order to be convicted of the crime of possession of marihuana one
must have knowledge or intent to possess. 21 U.S.C. 844. The same is

17

Interim Decision #2304
true under the law of the District of Columbia, United States v. Weaver,
458 F.2d 825 (D.C. Cir., 1972), as well as the law of the vast majority of
states. See Annot., 91 A.L.R. 2d 810, 821 et seq. (1963) and supplements. Therefore, it is fair to state that in enacting section 212(a)(23),
Congress did not intend to exclude persons who were entirely unaware
that a prohibited substance was in their possession. Cf. Varga v. Rosenberg, 237 11 . iSupp. 282 (.D. Cal., 1964); Matter of Sum, 13 I. & N. Dec.
569 (BIA 19'70). Since the respondent has raised a significant question
regarding the knowledge requirement of the British statute, we believe
that an in-depth discussion of the British law is warranted.
A. Knowledge Requirement of British Statute.

The history of the British laws relating to illegal possession of drugs is
quite involved. 5 The earliest reported decision relating to possession of
drugs is R. v. Carpenter, [1960] Crim. L. Rev. 633. In that case, drugs
were found fn the trunk of a car parked outside a house in which the
defendant was arrested. The defense was that he had borrowed the car
from a friend some 24 hours earlier and was unaware of the presence of
the drugs. The trial court convicted the defendant, but the Court of
Criminal Appeal reversed, holding that there was not sufficient evidence of conscious possession of the drug to go to the jury. Since it was
conceded by the prosecution at trial that knowledge was a necessary
element of the crime, this case does not help greatly in clarifying the
legal definition of possession. However, one commentator has noted that
"as the law tends to work rather by description than by definition the
case is important as an illustration of a fact-situation where a person was
held not to be in possession." A. Owen, Dangerous Drugs—Possession,
The New Law Journal, September 28, 1972, at 844.
In Lockyer v. Gibb, [1966] 2 All E.R. 653 (Q.B.), the first fully
reported case, a bottle containing tablets was discovered in the hold -all
which the defendant was carrying. The tablets were found to be a
prohibited drug. The defendant admittedly was aware that she was in
possession of the bottle and that the bottle contained tablets; however,
she claimed that a friend had given the bottle to her to look after and
that she did not know what the tablets were. The trial court concluded
that she was in unauthorized possession of a prohibited drug, notwithstanding the fact that she might not have known that the tablets
she had were such a prohibited drug. The defendant was given leave to
appeal her conviction.
On appeal; the Queen's Bench Division sustained the conviction, holding that while it was necessary for the prosecution to show that the
There were several predecessors to the Dangerous Drugs Act of 1965. However, since
will
be made in the following discussion.
3

the provisions relating to possession are nearly identical, no distinrtion between them

18

Interim Decision #2304
defendant knew that she had the articles which turned out to be a drug,
it was not necessary that she should know in fact that the articles were a
drug and a drug of a particular character. In the course of his opinion,
Lord Parker rendered the following notable dictum:
,

In my judgment, before one comes to a consideration of a necessity formers rea or, as
it is sometimes said, a consideration of whether the regulation imposed an absohite
liability, it is of course necessary to consider possession itself. In my judgment, it is
quite clear that a person cannot be said to be in possession of some article which he or
she does not realise is, or may be, in her handbag, in her room, or in some other place
over which she has control. That, I should have thought, is elementary; if something
were tipped into one's basket and one had not the vaguest notion it was there at all, one
could not possibly be said to be in possession of it. 6

Lord Parker also referred to the Canadian case of Beaver v. R., [1957]
S.C.R. 531, in which the majority of the Supreme Court of Canada
concluded under a similar statute that one who has physical possession
of a package which he believes to contain a harmless substance, but
which in fact contains a narcotic drug, cannot be convicted of being in
possession of the drug. Lord Parker expressed disagreement with this
view and agreed instead with the dissenting justices in Beaver.
In R. v. Smith, [1966] Crim _ T,. Rev. 558, the defendant was convicted of possessing a drug found in a room at a house where she was
living. The trial judge had instructed the jury that it was necessary for
the prosecution to show that the defendant lived in the room and "had 'a
common interest, in it so that she controlled all the things that were in it
of any significance." The conviction was quashed by the Court of Criminal Appeal, which held that the jury should have been directed to decide
whether the defendant knew of the drug and if so whether she had
possession or control of it.
In the case of Dalas, [1967] Crim. L. Rev. 125, the defendant appealed from a conviction for possession of cannabis and the imposition of
a three-year sentence. He claimed a belief that the substance he possessed was an Indian culinary herb rather than a dangerous drug. The
Court of Criminal Appeal accepted the idea that for the sentence to have
a rational foundation there must be convincing evidence that the defendant knew he was carrying cannabis rather than curry powder. The
court concluded, however, that the evidence fully justified the trial
judge's rejection of the defendant's explanation of innocence and also

justified the imposition of the severe sentence,
The House of Lords considered for the first time the type of knowledge required for conviction of the statutory offense of drug possession
in Warner v. Metropolitan Police Commissioner, [1968] 2 All E.R. 356
(ILL.). In that case, the defendant's van was stopped by police and two
parcels were found, one containing bottles of perfume and the other
(1966] 2 All E.R. at 655.

19

Interim Decision #2304
containing 20,000 amphetamine sulphate tablets. The defendant claimed
that he sold perfume as a sideline and that he believed both packages,
which had been left for him at a cafe, contained perfume. The jury was
instructed that the defendant was guilty if he had control of the box
which in fact turned out to be full of amphetamines, and that his claim of
lack of knowledge was to be considered only in mitigation of sentence.
Both the trial judge and the jury expressed the opinion that the defendant knew that the parcel contained the drugs, although this finding was
not necessary for conviction. The defendant was convicted and the
Court of Appeal affirmed. R. v. Warner, [1967] 3 All E.R., 93 (C.A.).
On appeal to the House of Lords, there were only two points on which
the five justices could agree: (1) that as per Lord Parker's dictum in
Lockyer, a person does not pdssess something which is slipped into his
control entirely without his knowledge; and (2) that the appeal in
Warner should be dismissed. As to the mental element necessary to
convict a man- of possession, the individual justices took diverse approaches. '
Lord Guest felt that the prosecution must show that the accused had
knowledge that he possessed the package or bottle which contained the
drugs. According to this view, a person shown to be in possession of a
package will be deemed to also possess its contents.?
'
Lord Morris expressed the opinion that a person posseises the contents of a container when he is knowingliin control of thnh'eentaineil in
circumstances in which he had the opportunity, ithether availed of or
not, to discoier the contents. 8
On the other hand, Lord Pearce and Lord Wilberforce both thought
that a person could not be said te be in possessidn of the contents of a
package if he was entirely unaware of those contents. These two justices
concluded that proof that a person knowingly possessed a package
raised a strong inference that he also knew the contents; however, the

defendant should be allowed to assert in his defense that he had no
knowledge of, or was genuinely mistaken as to, the actual contents or
their illicit nature, and received them innocently, and that he had no
reasonable opportunity since acquiring the package to acquaint himself
with its contents. 8
'T [1968] 2 All.E.R. at 884-85.

a Id., at 375.
°Id., at 388 90, 393 94. Lord Pearce further stated that "the term 'possession' is
-

-

satisfied by a knowledge only of the existence of the thing itself and not its qualities, and
that ignorance Or mistake as to its qualities is not an excuse." Id., at 388. The introduction
of this somewhat metaphysical distinction between "kind" and "qualities" was the subject
of criticism by commentators. See, e.g., D. Miers, The Mental Element In Drug Offences,
20 Nor. Ir.L.Q. 370, 380 (1969); A. Owen, Dangerous Drags—Possession, The New Law
Journal, September 28, 1972, at 844, 845. however, it should be noted that Lord Pearce
felt the questior of whether a difference in qualities amounts to a difference in kind "is a

20

Interim Decision #2304
Finally, Lord Reid took the view that the statute required the prosecution to prove facts from which the jury could infer that the defendant knew that he had a prohibited drug in his possession." Lord Reid
also suggested that: "In a case like this Parliament, if consulted, might
think it right to transfer the onus of proof so that an accused would have
to prove that he neither knew nor had any reason to suspect that he had
the prohibited drug in his possession. . . ." " Lord Pearce put forth a
similar suggestion." •
With the exception of Lord Guest, the justices expressed the opinion
that the direction to the jury given by the trial court had been defective." Nevertheless, Lords Reid, Pearce, and Wilberforce believed that
the defendant's story regarding lack of knowledge was so preposterous
that no reasonable jury could have acquitted him,. and that therefore no
injustice had been done."
From the foregoing discussion, it is evident that a majority of the
court, consisting of Lords Reid, Pearce, and Wilberforce, believed
that there was a substantial knowledge requirement for conviction df
possession of a dangerous drug. The inference that possession of a
package meant possession of its contents could be rebutted by the
defendant if he raised substantial doubt that he knew the contents; this
could be done either by showing that he had no right to open the
package and no reason to suspect its contents to be illicit, or by showing
that he was genuinely mistaken as to the contents and had no reasonable
opportunity to ascertain what they were. See D. Miers, The Mental
Element In Drug Offences, 20 Nor. Ir.L.Q. 370, 389-90 (1969). The
majority view in Warner, then, was the prevailing interpretation at the
time of the respondent's. conviction in 1968.
The cases which were decided after Warner confirm the existence of a
substantial knowledge requirement for conviction of possession. InR. v.
Marriott, (1971], 1 All E.R. 595 , (C.A.), the defendant possessed a
penknife with some traces of cannabis on the blade. On appeal from the

defendant's conviction, the Court of Appeal held that, in order to establish unlawful possession of cannabis, the prosecution had to show that
the defendant knew or had reason to know that -a foreign substance was
matter for ajury who would probably decide it sensibly in favour of the genuinely innocent

but against the guilty."

[1968] 2 All E.R. at 388.

Id., at 367.
"Id., at 367.
12 "It would, I think, be an improvement of a difficult position if Parliament were to
enact that when a person has ownership or -physical possession of drugs he shall be guilty
unless he proves on a balance of the probabilities Xhat he was unaware of their nature or
had reasonable excuse for their possession. . . ." Id., at 390.

"Id., at 370, 375, 391, 395.
" Id.,

at 370, 391,395. See section 4, CI. huinal Appeal Act of 1066. Lord Morris took the

view that although the jury instruction was faulty, the admitted facts brought the
21

Interim Decision #2304
on the knife. The court noted that nothing said in Warner negated the
necessity for such proof of knowledge. The conviction was quashed.
In R. v. Irving, [19701 Crim. L. Rev. 642, the defendant had a bottle
in his possession which contained his stomach pills along with some
amphetamines, the latter being a prohibited drug. He defended on the
ground that the amphetamines had been prescribed for his wife, and
that she must have put them in his bottle by mistake; consequently, he
claimed, he had no knowledge that the amphetamines were there. The
trial judge directed that if the defendant knowingly possessed the bottle
he also possessed the contents, and the jury returned a guilty verdict.
The Court of Appeal sustained the appeal, stating that the jury direction was wrong because the circumstances were comparable to those
where a drug was slipped into a person's pocket or bag without his
knowledge.
In R. v. Fernandez, [1970] Crim. L. Rev. 277, the defendant was
convicted of possession of cannabis. The facts adduced at trial showed
that the respondent had reason to believe that the package he was
carrying contained a prohibited substance. The trial judge directed that
"if the person were to receive the package under circumstances
whereby it would be clear to any person of ordinary common sense that

it might well contain either drugs or some other article which ought not
to be in distribution the mere fact that it could not be shown that the
carrier knew the exact contents would not prevent him from being
guilty . . . the mere fact that the prosecution cannot show that he knew

the exact nature of the drug would not matter if he did know that the
package might well contain some prohibited article and if in fact it did
contain a prohibited drug." On appeal it was held that, on the facts of the
case, the direction was adequate. The Court of Appeal observed that:
"The majority view in Warner was that one could not safely regard the
offence as absolute: some mental element, or subjective test, might have

to be applied."
In Sweet v. Parsley, [1969] 1 All E.R. 347 (H.L.), the House of Lords
considered the question of whether a landlord who had no knowledge
that cannabis. was being smoked on his premises could be convicted for
being concerned in the management of premises used for the smoking of
cannabis under section 5(b) of the Dangerous Drugs Act of 1965. The
court's holding that the conviction should be quashed hinged on the
wording of section 5(b) and prior enactments. However, in the course of
the opinion all of the justices agreed that knowledge is normally a
requirement for conviction and that such requirement should not be
lightly dispersed with. More important for the present case, several
defendant within his definition of possession, thereby justifying dismissal of the appeal.
(1968] 2 All E.E. at 375.

22

Interim Decision #2304
justices commented as to what they thought Warner held in regard to
the mental element required for conviction of possession.
Lord Reid stated that he had no reason to alter the view which he
expressed in Warner, that knowledge is an element of the crime." Lord
Pearce, Lord Wilberforce, and Lord Diplock all expressed the view that
the term "possession" as used in Warner imported a mental element."
One commentator has stated that prior to tlip enactment of the Misuse
of Drugs Act of 1971, the mental element required for conviction for
drug possession consisted of two states:
First, it had to be proved that an accused knew that he had actual or constructive
possession of the article which contained the drugs. Secondly, although it could not be
proved that the accused knew the exact nature of what he had, it had to be proved that
there were facts from which it could be inferred that he knew he had a substance of an
illicit nature, though not necessarily what kind of illicit substance it was.
L McClean & P. Morrish, Harris's Criminal Law 269 (22d ed. 1973). 17

We conclude that the statute under which the respondent was convicted contained a sufficient knowledge requirement to ensure that
persons whose possession was entirely innocent would not be convicted.
In this respect, cases such as Irving, Marriott, Smith., and Carpenter
(19691 1 All E.R. at 349.
Id., at 358, 360, 361.
" The Misuse of Drugs Act of 1971 attempted to clarify the law pertaining to possession
of dangerous drugs. The Dangerous Drugs Act of 1965, under which the respondent was
convicted, was repealed. Section 28 (3)(b) of the new Act specifically provided that a
defendant shall be acquitted of various drug offenses, including possession:
(i)if he proves that he neither believed nor suspected nor had reason to suspect that
the substance or product in question was a controlled drug; or
(ii) if he proves that he believed the substance or product in question to be a
controlled drug, or a controlled drug of a description, such that, if it had in fact been
that controlled drug or a controlled drug of that description, he would not at the
material time have been committing any offence to which this section applies.
By the enactment of this section, Parliament appears to have been taking the course
suggested by Lord Reid and Lord Pearce in Warner, and thereby placing the burden on
the defendant who has been shown to be in the physical control to prove that his
possession was innocent.
There are several statements in the legislative history of the Misuse of Drugs Act of
1971 which indicate that at least one member of Parliament believed that as a result of
Warner the crime of possession under the Dangerous Drugs Act of 1965 was "absolute"
and did not require any mens rea. 808 Parl. Deb., H.C. (5th aer.) 617 18 (1970). This view
ignores the fact that there was a substantial knowledge requirement before one could even
be said to be in "possession" of a drug. To say that possession is an "absolute" offense begs
the question. The term "absolute" is very imprecise. As was pointed out by Lord Pearce in
Sweet v. Parsley, [19693 1 All E.R. 347, 358 (ILL.), the term "absolute" may describe "an
offence to which the normal assumption of was rat does not apply, but in which the actual
wards of the offence (without any additional implication of mensrea)may well import some
degree of knowledge, e.g., the word `possession' as in Warner's case." We believe that the
cases, not the Parliamentary Debates, are the moat accurate course of information as to the
15
16

-

state of English law at the time of the respondent's conviction.

23

Interim Decision #2304
establish that • persons asserting plausible defenses based on lack of
knowledge were not convicted. On the other hand, in cases such as
Warner, Lockyer, Fernandez, and Dalas, where the defenses advanced
were quite incredible, the courts sustained the convictions. '
It is true that some of the formulations of the knowledge requirement
in the British cases seem obtude. It has been suggested that this may be
due, in part, to judicial overreaction to the fear that juries would abuse
a liberal formulation of the knowledge requirement and be too eager to
allow drug peddlers to escape for lack of proof of knowledge. D. Miers,
The Mental Element In Drug Offences, 20 Nor. Ir.L.Q. 370, 376-77, 383
(1969). See the commentary on the Dalas ease in [1967] Crim. L. Rev.
125. This fear may have been misplaced; however, we do not believe
that the Dangerous Drugs Act of 1965 created an offense which permitted the conviction of persons whose possession was innocent and readily
explainable.
Conviction for possession of cannabis resin under the Dangerous
Drugs Ace of 1965 required that the defendant have had knowledge that
he possessed an illicit substance which proved to be cannabis resin. A
person who was entirely unaware that he possessed any illicit substance
would not have been convicted under the Dangerous Drugs Act of 1965.
The respondent's plea of guilty to the charge of possession of cannabis
resin under the Dangerous Drugs Act of 1965 is a conviction• of a law
relating to the illicit possessiOn of marihuana within the meaning of

section 212(a)(23) of the Immigration and Nationality Act.
Furthermore, counsel's intimation that the respondent pleaded guilty
on the advice of British counsel that British law did not permit a defense
of lack of knowledge is not reflected in the record. In a letter dated
March 14, 1972, British counsel retained by the respondent at the time
of his conviction stated that he believed the respondent had a good
defense on the facts of the ,case." However, the respondent allegedly
expressed a concern for the welfare of his wife, who was then pregnant
and suffering physical and emotional difficulties, if she were Called upon
to testify. British counsel stated that he "was obliged to explain to him
[the respondent] that the only course open that would obviate the need
for her [his wife's] appearance would be for him to plead guilty." The
letter implies that the respondent pleaded guilty to obviate the necessity for his wife's appearance as a witness. British counsel does not state
that his advice to the respondent, or the respondent's decision to plead
guilty, had anything to do with the unavailability of a defense based on
lack of knowledge under the British statute.
The respondent had an opportunity to obtain advice of competent
" A copy of thie letter la appended to the respondent's inution to tersninate dated March

24, 1972.
24

Interim Decision #2304

instead to
take a calculated risk by pleading guilty to the charge. Deportation
proceedings are not a forum for redetermining the question of guilt,
which has already been established by the respondent's plea. See Rassano v. INS, 377 F.2d 971, 974 (C.A. 7, 1966), vacated and remanded on
other grounds 377 F.2d 975 (C.A. 7, 1967); Giammario v. Hurney, 311
F.2d 285, 287 (C.A. 3, 1962); Matter of Gutierrez, 14 I. & N. Dec. 457
(BIA 1973). Although counsel indicated at oral argument that a challenge to the British conviction was being contemplated, we have received no information that such a challenge has actually been undertaken (Transcript of oral argument, pp. 45-6).
counsel and to fully litigate all possible defenses_ He chose

B. Is Cannabis Resin Marihuana Within the Meaning of Section 212(aX23)?

The respondent asserts that the term "marihuana" as used in section
212(a)(23) does not include cannabis resin. Counsel introduced expert
testimony by Lester Grinspoon, M.D., and a book written by Dr.
Grinspoon, to show that cannabis resin is not marihuana (Transcript of
hearing, pp. 35-43; Exh. 13).
According to Dr. Grinspoon, there are three grades of intoxicating
drug which are prepared in India from the plant Cannabis sativa (L.),
and which serve as standards against which preparations produced in
other parts of the world are compared for potency_ Bhang consists of

Cannabis sativa leaves dried and then crushed into a coarse powder and
perhaps mixed with seeds and chopped up stems of the plant. Ganja, the

second strongest preparation, is made from the tops of cultivated female
plants and is estimated as being two or three times as strong as bhang.
Pure resin of the pistillate flowers is called Charras and is the most ,
potent of the intoxicants, being five to eight times more potent than
bhang. Charras, or cannabis resin, is called hashish in some places.
Dr. Grinspoon has stated that the chemical compounds responsible for
the intoxicating effect of cannabis are commonly found in the resin.
Although it is generally believed that the plant's active agents are found

solely in the resin, there is insufficient evidence to support this
hypothesis. It is possible that other parts of the female and male plants
may contain active substances.
The gist of Dr. Grinspoon's testimony is that, as used in the United
States, the term "marihuana" refers only to a preparation comparable to
Indian Mang, and should be distinguished from cannabis resin which is
comparable to Indian Charras (or hashish) (Transcript of hearing, p. 37).
While this argument has some technical appeal, we are not persuaded
by it.
The term "marihuana" is not defined in the Act, nor is the legislative

history explicit as

to the meaning to be given to the term. In the absence
25

Interim Decision #2304
of explicit legislative guidance, we must strive to interpret the Act in a
manner consistent with the congressional purpose.
The provisions for the exclusion and deportation of persons convicted
of possession of marihuana were part of a congressional scheme to deal
with the evils of drug abuse. S. Rep. No. 1651, 86th Cong., 2d Sess.,
U.S. Code Cong. & Ad. News 2134-25 (1960). In other statutes having
the same objective, Congress has treated the term "marihuana" as
including cannabis resin. 21 U.S.C. 802(15); Act of August 16, 1954, ch.
736, 68A Stat. 565; Act of July 18, 1956, ch. 629, §106, 70 Stat. 570; see
United States v. Piercefield, 437 F.2d 1188 (C.A. 5, 1971), cert. denied,
403 U.S. 933 (1971); United States v. Cepelis, 426 F.2d 134 (C.A. 9,
1970), cert. denied, 404 U.S. 846 (1971). In the absence of express
congressional direction to the contrary, we shall not create a distinction
between cannabis resin and marihuana under the Immigration and
Nationality Act.
Several federal courts have noted that hashish (cannabis resin) is
merely a refined form of marihuana. United States v. Piereefield, supra;
see United States v. Cepelis, supra. It would be illogical to construe the
term "marihuana" under section 212(a)(23) as including the cannabis
leaves (possibly mixed with stems and seeds) which contain intoxicating
cannabis resin, while not including the pure form of the resin which has
a much greater intoxicating effect. While it is true that ambiguous
provisions of the immigration laws are often construed in favor of the

alien, this general maxim does not require us to ignore common sense
and legislative objectives in order to reach a construction favoring the
alien. Cf. Chanan Din Khan v. Barber, 253 F.2d 547, 550 (C.A. 9,
1958), cert. denied, 357 U.S. 920 (1958).
Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965), is distinguishable.
That case involved a factual issue concerning the identity of the drug
that the alien was convicted of trafficking in. The record of conviction
referred only to a "narcotic drug" under California law, which included
substances not defined as "narcotic drugs" under the immigration laws
as interpreted by the federal courts. Since the conviction was alleged to
be the ground for deportation under section 241(a)(11), we held that the
factual uncertainty as to what drug was involved had to be resolved
against the Service, the party bearing the burden of proving deportability.
In the present case, however, there is no factual dispute as to what
drug the respondent was convicted of possessing. The issue is a legal
one: Is cannabis resin "marihuana" within the meaning of section
212(a)(23)? We have resolved this legal issue against the respondent.
Counsel has cited Matter of Gray, A-30310271 (IJ September 23,
1971), an unpublished decision by an immigration judge, which held that
hashish is not "marihuana" within the meaning of section 212(a)(23) of
26

Interim Decision #2304
the Act. The Service took an appeal from that decision, but the appeal
was later withdrawn. Such withdrawal, however, does not indicate
Service acquiesence to that decision. Cf. Matter of Mangabat, 14 I. & N.
Dec. 75 aff'd (BIA 1972), on other grounds Cabueo-Flores v. INS, 477
F.2d 108 (9 Cir. 1973). Our decisions are binding precedent on the
immigration judges, rather than vice versa. 8 CFR 3.1(g). The short
answer to counsel's use of Gray is that we disagree with that decision
and decline to adopt its reasoning in the present case.
In his brief, counsel attacks the constitutionality of section
212(a)(23). 15 As he concedes, however, we have no power to consider a
constitutional challenge to the statutes which we administer. Matter of
Santana, 13 I. & N. Dee. 362, 365 (BIA 1969); Matter of Wong, 13 I. & N.
Dec. 820, n. 2 (BIA 1971); Matter of L—, 4 I. & N. Dec. 556, 557 (BIA
1951).
We are not unsympathetic to the plight of the respondent and others
in a similar situation under the immigration laws, who have committed
only one marihuana violation for which a fine was imposed. Nevertheless, arguments for a change in the law must be addressed to the
legislative, rather than the executive, branch of government.
IV. SUMMARY AND CONCLUSION

We have concluded that the respondent's motion to defer our decision
have also concluded that the respondent is deportable under section 241(a)(2) of the Act, and that he is statutorily ineligible
for adjustment of status under section 245 of the Act. The respondent is
not eligible for any relief from deportation except voluntary departure,
which has been granted to him by the immigration judge. The immigration judge reached the correct result; the appeal will therefore be
dismissed.
must be denied. We

ORDER: The appeal is dismissed.

Further order: Pursuant to the immigration judge's order, the re-

spondent is permitted to depart from the United States voluntarily
within 60 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order.

" We have also considered the micas curiae brief submitted in behalf of the respondent by the American Civil Liberties Union. A large portion of that brief is devoted to
arguments concerning the constitutionality of section 212(a)(23). We believe that the other
issues raised in the Cl7ThiLatif brief have been dealt with adequately in the course of our
opinion and need not be reiterated.

27


MATTER
OF BOA4C'PLAXE
'*FLIG~IT
No. 523"
I n F I N E Proceedings
F-0400-821
Decided by Board November 1, 1955

Fine--Section Wl of 1952 act-Not incurred despite absence of immigration inspection when alirsrl n- louted through Fcdelal inspcetion oireo.

Fine will not be imposed against nn airline under section 271 of the 1951 act
for failure to prerent the unauthorized landing of a n alien passenger when
the record estsblishes that the passenger was routed through the Federal
inspection facility at the airport, received Public Health and Customs dearawe, and could not have passed from Public Health to Customs without
having proceeded through the Immigration inspection area.
BEFORE THEBOARD
Discussion: This matter is before us on appeal from a decision of
the District Director at Philadelphia dated Play 6, I v b S , Orderlng
that h e in the sum of $1,000, mitigated to the extent of $500, be
imposed on the British Overseas Airways, he., ownem and/or agents
of BOAC Plane Flight No. 523, which arrived a t the port of Philadelphia, Pennsylvania, from foreign on October 3, 1954, for failure
at a
to prevent the landing of alien passenger W-A-Wtimo and place other t h n n a- rlecignntd hy the immigration officers.
The aircraft in question was diverted from New Pork, its original
destination, to Philadelphia because of venther conditions. At the
latter port, the nine members of the cre-iv and 64 of the 65 passengers
aboard were presented for inspection and were inspected. Subsequent to such inspection, and after the departure from the Philadelphia airport of the passengers inspected, z check of the passenger
lists and the immigration docunlents revealed that the above-~~:?rned
alien had not, according to the records of the Service, ken inspected,
although he had been inspected and cleared by the United States
Public EIenllh Service a d Cuslorns. The aubjcat nlicn a a c presented later the same day at the Idlemild Airport, New Pork,
where he mas inspected by a Service official and admitted as a
visitor (B-2) for a period until October 30, 1954. According to the
record, he departed from the United States in accordance with the
terms of his admission.

Due notice of the diversion of the flight was given the Service.
Immediately upon the plane's landing, all the crewmembers and passengers were escorted to the area of the airport administration
building desi,pated and set aside for Governmenc inspecclon, Public
Health, Immigration and Customs. The captain of the aircraft remained with the members of his crew and the passengPrs continuously during the inspection period in order to insure that all persons subject to inspection were in fact inspected. The record indicates
that the subject alien received Public Health and Customs inspection
and clearance. Also, according to the record, once the subject had
received Public Health inspection and clearance he could not have
received Customs inspection and clearance without having passed
through the Immigration inspection area where three officers were
on duty. I n this connection, section 235(a) of the Imm~gratlonand
Nationality Act imposes a duty on the Service to conduct the inspection of an alien applicant for admission presented for inspection, as this alien was, according to the record. The record is clear
that the alien did not intentionally and deliberately evade inspection. I n this connection, counsel asserts that the passenger was
probnbly overlooked because of his short statnre and t h height
~
nf
the counter in the inspection area from behind which the officers
apparently conducted their inspection.
The carrier chartered buses t o carw the passengers from Philadelphia to New York, the flight's scheduled termination point. Following inspection by the three Government services mentioned above,
the captain assigned a member of his crew to board each bus to
escort the passengers to New York. I n order to assure that all
Government requirements concerning Immigration and Customs inspection has been complied with fully, the captain personally inquind of the Immigration and Customs officials thcn on duty and

in charge whether all passengers and crewmembers had been duly
inspected and cleared for entry into the United States. These 05cials answered the captain's question in the affirmative and on the
basis of such assurances, and not until their receipt., the captain
permitted the chartered buses t o leave the Philadelphia airport for
the trip to New York. The subject alien was among the passengers
who boarded one of the buses a t Philadelphia, and he continued to
New York on the bus in the custody of the carrier's stewardess.
I n other words, the carrier did not permit the subject to leave the
Philadelphia airport until the Service had assured i t that his inspection had been made. As we see it, such assurance should have been
given by the Service only after the manifest and immigration documents had been checked off against one another. However, according to the record, such a check was not made until after the buses
had departed from the Philadelphia airport.

When the fact that the subject alien had not been inspected was
discovered, the matter n-as brought to the attention of the carrier.
Through its excellent cooperation, the subject alien's inspection was
completed immediately upou his arrival at New York. At all times
until said inspectlon Kas completed iuld t l a~l i w admitted to the
United States, he was in the custody of the carrier.
The foregoing h c t s are established by the affidavits of the alien
passenger involved and five of the carrier's employees, together with
a floor plan of the airport facilities set aside for the Government
inspection by the Public Health, Immigration and Customs services.
None of the facts stated above are denied or controverted in the
decision of the district director, except that said official has apparently discounted the carrier's contention that it was impossible for
the passenger to enter the Customs inspection area without passing
through the Immigration inspectlon area.
On the basis of the foregoing, we find that a violation of section
271 of the Immigration and Nationality Act has not been established in these premises. The reasons are that the alien entered the
inspection area; the Service first reported to the carrier's representstive that all passengers had been inspected; and the carrier has met
the burden of showing complinnre with the statute. Therefore, we
conclude that the appeal must be sustained and no fine imposed.
We will now so order.
Order: I t is ordered that the appeal be and the same is hereby
sustained and that fine be not imposed.


Cite as 27 I&N Dec. 494 (A.G. 2018)

Interim Decision #3946

Matter of L-E-A-, Respondent
Decided by Acting Attorney General December 3, 2018
U.S. Department of Justice
Office of the Attorney General

BEFORE THE ACTING ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer this case to me for review of its decision. The
Board’s decision in this matter is automatically stayed pending my review.
See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist
me in my review, I invite the parties to these proceedings and interested amici
to submit briefs on points relevant to the disposition of this case, including:
Whether, and under what circumstances, an alien may establish persecution on
account of membership in a “particular social group” under 8 U.S.C.
§ 1101(a)(42)(A) based on the alien’s membership in a family unit.

The parties’ briefs shall not exceed 15,000 words and shall be filed on or
before January 4, 2019. Interested amici may submit briefs not exceeding
9,000 words on or before January 18, 2019. The parties may submit reply
briefs not exceeding 6,000 words on or before January 18, 2019. All filings
shall be accompanied by proof of service and shall be submitted
electronically to AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice
Office of the Attorney General, Room 5114
950 Pennsylvania Avenue, NW
Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or before
the pertinent deadlines. Requests for extensions are disfavored.

494


Interim Decision #1350

MATTER OF Lair

In VISA PETITION Proceedings
A-13550221
Decided by Board AZ97,85,1964
Beneficiary's adoption in China by petitioner's mother on behalf of, and without
the knowledge of, the petitioner and without petitioner knowing of the existence of, or personally meeting, beneficiary until latter was over 7 years of age
does not constitute a valid adoption in accordance with Article 1079 of the
Chinese Civil Code since it has not been established the adoption was effected
in writing or the beneficiary was brought up since infancy, meaning under 7
years of age, as a child of the adopter_

The case comes forward pursuant to certification of the order of the
District Director, Honolulu, Hawaii dated January 16, 1964 directing
that the petition be granted.
The petitioner, a native of China, a naturalized citizen of the United
States, 86 years old, male, seeks preference quota status under section
203 (a) (4) of the Immigration and Nationality Act on behalf of his
married adopted son, a native and citizen of China, who is alleged in
the visa petition to have been born on June 16, 1927 at Ha Sa Ping
Village, Toyshan, China.
The petitioner made a sworn statement to a Service officer on May
1, 1963 (Ex. C) . He testified that he was first married in 1930 to Wong
Shee in Ha Sa Ping Village, who gave birth to a son in 1932. His
first wife died in 1933 and their son died in 1934. Then he was
married for the second time in 1936 at the same village to Fong Shee
by whom he had no children. His second wife ran off about 1942
during the war with Japan. He identified the beneficiary as his
adopted son whose date of birth he did not know. He explained that
his mother, an old-fashioned woman, thought she would bring in a male
child to carry on in the household as his son and that she adopted the
beneficiary in 1934 while he was not in China. There was no official
record made of this adoption. He stated that he learned about the
adoption from one of his cousins who came to.Honolulu on his way to
Peru. He first saw the beneficiary on his 1935 trip to China when the
597

Interim Decision #1350
child was about eight years old and was living with his mother and his
nephew's wife, Liu Shee. He remained in China for approximately
nine months during this trip and the child resided with him and his
second wife and that when he left China in 1936 the child remained
with his wife in the same household as Liu Shee, his niece. He next
saw the beneficiary in December 1955 in Hong Kong and the beneficiary
resided with him in his household as his son until he left Hong Kong in
February 1956. The beneficiary came to Hong Kong in December
1955 accompanied by his wife and two daughters. The petitioner's
second wife had already left him about 1942 or 1943. He explained
that an affidavit dated December 5, 1962 in which he stated that he
had adopted the beneficiary as his son in 1932 and that he resided with
his first wife from 1932 to 1933 and with his second wife from 1935
to 1948 did not reflect the facts as he had told them to his attorney but
that the facts regarding the adoption as set forth in his sworn statement were true to the best of his knowledge; that his wife and his
natural son passed away prior to the adoption of the beneficiary by his
Mother.
The petitioner subsequently made trips to China in 1957 and 1960, of
two to four months duration respectively, and he lived with the
beneficiary and his family when he went to China in 1957 but in 1960
he lived at a hotel because the beneficiary's quarters were too small.
He acknowledged the correctness of a summary of his situation would
show that he spent nine months with the beneficiary in 1935 to 1936
when he was approximately eight years of age; that he did not see him
again until December 1955 when the beneficiary was 28 years of age
when he spent about two months with him and again two months with
him in 1957, making a total of 13 months that he had resided in the
same household with the beneficiary during his lifetime. The petitioner stated that when he left China in 1936, when the beneficiary was
approximately nine years of age, the beneficiary resided with his
second wife and his nephew's wife, Liu Shee, also known as Wong
Shun. He stated that his second wife took care of the child up until
the time she ran away then his nephew's wife (his niece) took care of
him. The petitioner stated that he sent money to take care of the
beneficiary but that he only started keeping records since 1960,
although he sent money previously ever since his mother adopted the
beneficiary, except during the war years.
In a supplementary sworn statement dated May 10, 1963 the petitioner stated that the beneficiary was born in China in 1927, sixth
month sixth day, corresponding to July 4, 1927 which information he
received from his cousin, although no official record exists of the
beneficiary's birth. He reiterated that his true son died in the 10th
598

Interim Decision #1350
month of 1933, Chinese calendar, corresponding

to the 11th month of

the Western calendar_ The petitioner again refuted an affidavit submitted by his nephew's wife, Wong Shun, dated December 18, 1962, to

the effect that the beneficiary was adopted in 1933 at the age of four
years; that the beneficiary was six years old in 1933 because the petitioner went to China in 1935 when the beneficiary was eight years old
and he remembered starting him off to school. The petitioner stated
that his mother adopted the beneficiary on her own accord and never
told him and that he did not take any action toward making the
child his adopted child but that he consented to and accepted this
child as his adopted child. He stated that he has continued to support this adopted son and as far as he was concerned on the day his
mother adopted the beneficiary that was the day he had an adopted son.
The District Director's prior order, dated May 16, 1963, found that
based upon the testimony of the petitioner and all available evidence,
the beneficiary was approximately seven years of age at the time the
claimed adoption took place by the petitioner's mother in his behalf
and that the petitioner himself did not reside with the beneficiary until
after his eighth birthday. This conclusion is based upon a finding
that the beneficiary was born in July 1927. He also finds that the
petitioner could not have resided with the beneficiary for a period of
more than 9 months prior to the beneficiary's 21st birthday nor more
than '8 months after the beneficiary reached the age of 21 years, 4
months of which were in the same city but not in the same household.
The District Director concluded that the adoption was not in accordance with Article 1079 of the Chinese Civil Code which provides that
adoption shall be effected in writing, unless the person to be adopted
has been brought up as a child of the adoptive parents since "infancy"
which is construed to mean a child not more than 7 years of age. The
District Director concluded that the petitioner has failed to establish
that he is a parent as defined in section 101(b) (2) of the Act or that
the beneficiary was ever a "child" as defined in section 101(b) (1) (E)
of the Act, and that the claimed adoption could not have been recognized as legal under the Chinese Civil Code; that the petitioner is the
only remaining partner to the claimed adoption and he has failed to
establish that he has had legal custody of and has resided with the
beneficiary for the minimum period of two years as required by section
101(b) (1) (E) . He ordered that the visa petition be denied.
On appeal, by order dated September 25, 1963, after citing authorities, the Board held that since the beneficiary was born on July 4, 1927,
adoption under the Chinese law could have been possible in that the
petitioner's mother had adopted the child on his behalf before July 4,
1935 when the beneficiary became eight years of age, since under
599

Interim Decision #1350
Article 124 of the Chinese Civil Code ages are reckoned from the date
of birth? Our decision ordered that the District Director should
consider the case in the light of the holding in Matter of Moon, 9 I. & N.
Dec. 633 and Matter of Yee Eleong Woo, 9 I. & N. Dec. 176. We
remanded the case for additional proof of the age at which the
petitioner claimed to have adopted the child, and to submit proof of
support, letters or photographs although the petitioner admitted that
he did not know of the adoption until a year after it occurred.
At remand, counsel for the petitioner submitted two affidavits by
Lan Sa Nim and Liu Shee in support of the petition. The affidavit
of the beneficiary, Lan Sa Nim, asserted that he was born on the 16th
of June in 1929 and that he was adopted by the petitioner in 1933
when he was four years old; in addition, he submitted a Hong Kong
Identity Card issued to him on February 9, 1956 showing that he was

then 27 years of age. The affidavit of Liu Shee also known as Wong
Shun, the niece, repeats her previous affidavit that she was present in
1933 when the beneficiary was adopted at the age of four years; that
when, the second wife of the petitioner disappeared in 1944 during the
Japan War, she took care of the beneficiary in her house since that year.
The order of the District Directory dated January 16, 1964, refers to
this additional evidence, and concedes that an act of adoption occurred
in 1933 when the beneficiary was either four or six years of age and that
this adoption was valid under Chinese law. This finding is directly
contrary to the testimony of the petitioner that his first wife died in
1932, that his natural son by that first wife died in November 1933,
that the beneficiary was born on July 4, 1927, and that he questioned
this same niece's affidavit about the beneficiary being four years old in
1933 but on the contrary alleges that he was six years old in 1933. The
petitioner also has stated that the beneficiary was adopted in 1934 after
the death of his natural sou iu order to provide him with an heir_
TheDistrict Director in his order of January 16, 1964 comments that
the petitioner submitted no proof of support, no letters, no photographs
dated prior to 1958. Apparently nonplussed by this dilemma, and
unable to reach a logical conclusion, the District Director ordered
that the petition be granted without citing any Chinese law, and
certified his decisionto this Board.
In a 'memorandum of law dated March 3, 1964 the Service takes
sharp exception to that portion of our decision of September 25,. 1963
which holds that a valid infancy adoption occurred merely upon the
'This conclusion appears to be of doubtful validity since the Judicial Yuan
Advisory Opinion, 1942, No. Yuan 2332, cited at page 153 of 8 I. & N. Dec. 151
states that the "infancy" provision shall be construed to mean a child not
more than 7 years of age according to the Par Eastern Seetion of the Library
of Congress, the age is computed according to Western reckoning.

600

Interim Decision #1350
petitioner's mother taking the beneficiary into her household in China
without the petitioner's knowledge, and the child's resideneethereafter
with the peitioner's mother. The Service urges that under such a
theory, an immigration benefit could enure whether neither the petitioner nor his wife had ever seen the beneficiary or even knew of his
existence; and where the sole basis for the claim to status is the alleged
unwritten and undeclared action of a long-deceased parent or grandparent. The Service urges that the decision in the instant case must
rest on whether the evidence establishes a valid infancy adoption. when
the petitioner himself first met the beneficiary in 1935, and, if so,
whether there was the requisite two years of legal custody and residence with the petitioner and/or his second spouse_
A memorandum from Dr. Tao-tai Min, Far Eastern Law Division,
Library of Congress dated May 25, 1964 sets forth again that Article
1079 of the Chinese Civil Code provides that adoption. must be effected
in writing, unless the person to be adopted has been brought up since
infancy as the child of the adopter. The Judicial Yuan Interpretation Chinese Republic Year 31 (1942) No. 2331 defined "infancy" in
the above paragraph as a child who is under seven years of age and
Dr. Hsia has informally stated that this is to be interpreted as meaning
Western reckoning. The Supreme Court Decision. Chinese Republic
Year 29 (1940) ehang,No. 702 stated that if a childless person, subsequent to the book on Family Law of the Civil Code coming into
force, takes another person's child as his own child and such act meets
the adoption requirements in the Civil Code, although the party (the
child) has been called a szutzu (instituted heir) rather than yang-tzu
(adopted son.), he is nevertheless deemed to be an adopted son in the
Civil Code.2
With regard to the question of how a civil case is to be decided if no
applicable law can be found, Article 1 of the Civil Code 8 provides : In
civil matters if there is no provision of law applicable to a case, the
case shall be decided according to custom. If there is no such custom,
the case shall be decided in accordance with the general principles of
law.
While the Service makes reference to a work entitled An Outline
of Modern. Chinese Family Law by Mare Van der Valk (Peking,
1939), to deprecate the importance of the "institution of an heir" as
contrasted to an adoption under the Chinese Civil Code, it nevertheless
appears according to the Far Eastern Law Division of the Library
of Congress, that both an instituted heir and an adopted son are deemed
2 Mel, Chung-lisiek and T'ao Po-Ch'uan, ed. Ida fa liu yang biz pien (Collection
of six kinds of materials on six codes), II I Taipei, 1958, p. 541.
Book I, General Principles of the Civil Code was promulgated on May 23,
1929, and came into force on October 10 of the same year.

601

Interim Decision #1350
to be adopted sons in the Civil Code if the act meets the adoption
requirements in the Civil Code.
From the evidence available in this confused record, we believe that
the best evidence consists of the sworn statements of the petitioner
whose testimony appeals to us as being both forthright and honest.
The petitioner has contradicted the affidavit of his niece and the subsequent affidavit of the beneficiary does not appear to be persuasive.
We will make a finding that the beneficiary was born on July 4, 1927;
that the beneficiary was adopted by the petitioner's mother after the
death of his first son in November 1983 probably in 1934; that the
petitioner did not learn about the adoption until he heard from a
cousin probably in 1935; that he did not meet the beneficiary until he
went to China in 1935 when the beneficiary was eight years old and
remembered starting him off to school; and that the beneficiary did
not reside with the petitioner and with his second wife until 1935 when
he was eight years of age.

The burden of proof of establishing eligibility for the benefit sought
under the immigration laws rests upon the petitioner. Matter of
Y—K—W—, 9 I. & N. Dec. 176 deals only with the matter of the twoyear legal custody and residence requirement contained in section 101
(b) (1) (E) of the Immigration and Nationality Act as amended and
holds that such custody and residence may be with the adoptive
mother, assuming that a valid infancy adoption has taken place.
However, in the instant case, the petitioner has not borne the burden
of establishing that a valid infancy adoption has taken place. We
believe that the evidence establishes that the petitioner did not know
of the existence of the beneficiary until he was over seven years of
age and did not personally meet the beneficiary until he was eight years
of age. There is no evidence that the adoption was effected in writing
as required by Article 1079 of the Chinese Civil Code and the petitioner has not borne the burden of establishing that the beneficiary was
brought up since infancy, meaning wider seven years of age, as a child
of the adopter. The visa petition will be denied.
ORDER: It is ordered that the order of the District Director dated
January 16, 1961 granting the -visa petition be reversed and that the
'visa petition be and the same is hereby denied.

602


Interim Decision #1488

MATTER

In

ViSEI,

Or

CHAR

Petition Proceedings .
A.--13924709

Decided by Board chow - 16, 1965 .
Since acts of human kindness referable to an undertaking to rear and educate
a helpless child do not alone prove an agreement to adopt nor is standing
in boo parentis the equivalent of adoption, the mere 'fact that the petitioning grandfather may have stood in taco parentis to the beneficiary grandson,
following the death of the latter's father in China when the benefielary was
only 17 months of age, is insufficient 'to effect adoption in accordance with
the applicable provisions of the Chinese Civil Code since in order to be reoognized as an adoption it is necessary that the adoptive parents have brought
up the child intending to adopt it..

The case comes forward on appeal from the -order of the District
Director, New .York District, dated March 17, 1965 for the reason
that the beneficiary, an alleged adopted child, does not qualify under
the definition of "child" within the provisions of section 101(b) (1)
(B) of the Immigration and Nationality Act and that satisfactorY
evidence has not been presented that.he was legally adopted. The
notice of denial further sets forth that the evidence establishes the
true son and his wife lived In the same household with his wife and
other son from the time of their marriage until 1938 when the beneficiary, his grandson, was born; after the death of the beneficiary's
father in 1939, the petitioner's daughter-in-law and grandson continued to live in the same household until the death of the petitioner's wife in 1942; thereafter his daughter-in-law, his grandson and
his other son continued to live in the same household until this other
son came to the United States in 1961 and the daughter-in-law And
her son, the beneficiary, are presently living togethef in the same
household. There is no evidence that the petitioner ever contemplated the adoption of his grandson either before his seventh birthday or at any time thereafter.
The visa petition was filed by King Chin, a native born . citizen of
the ;United States, 68 years old, seeking preference quota status on
219

Interim Decision *1480

behalf of the beneficiary, a native and citizen of China, 27 years
old, male. The beneficiary is alleged to be the adopted son of the
petitioner.
In support of the visa petition there has been submitted a statutory
declaration executed December 14, 1964 at Hong Kong by Ng Choi
Hang setting forth that she is the blood mother of the beneficiary
who was born on. April 6, 1938 and that his father was Chin Bing
Yu who died on September 5, 1939 when the beneficiary was only 17
months of age. Her husband was the blood son of the petitioner.
The beneficiary is, therefore, the grandson of the petitioner. After
her marriage Ng Choi Hang resided with her husband in the ancestral home of her father-in-law, the petitioner, together with her
mother-in-law, Dong Toy Kee, the petitioner's wife, who died in
1942. Since the death of her husband, the affiant and her son have

been continuously supported by the petitioner and since her hug-band's death, the beneficiary, from the time of his father's death
until the death of his grandmother, resided with his grandmother
who was his custodian and acted as his adoptive mother until the
time of her death. From the time of her husband's death her son
has been regarded as the adopted son of his paternal grandparents.
There has also been submitted an affidavit by Gwon Bor Chin, 37
years old, the blood son of the petitioner and the brother of Bing
Yu Chin, the blood father of the beneficiary. The affiant states that
lie is informed, believes and understands that the beneficiary is his
adoptive brdther under the laws of the Republic of China. The date
and basis of such information, belief and understanding is not set
forth. The immigration record of the affiant is not included and it'
is not known whether it is stated therein that the beneficiary was

his brother.
•

A sworn statement was taken from the petitioner before an immigration officer on March 3, 1965. He testified he was married on CR
9-12-20 to Dong Toy Kee and that they had two sons: Chin
Bing, born OR 10-9-10 who died in 1941; and Chin Goon Bor, born
CR 16-9-3, now in the United States, having been admitted in February 1961 as the son. of a citizen. The petitioner stated that his
deceased son married Ng Toy Hong about CR 25th or 26th year and
they had one son, Chin Ming Hang, the beneficiary. He testified
that while his son Chin Bing You was alive, he lived together with
his wife and son, Chin Ming Hang, and the petitioner's wife until
she passed away in 1942, and his second son, Chin. Goon Bor. He
learned about the birth of his grandson in CR 27 or 28 and he
learned about the death of his older son about a week after the event.
When asked to explain the circumstances under which his grandson
220

Interim Debision #1480
was adopted by his wife, the petitioner stated there was no particular
procedure in adopting his grandson as his son, it is understood that
he is the petitioner's grandson and after his father's death he has
been sending money to support him all of the time; it is different
from- any case of adoption. When asked why it was necessary for
him to adopt the grandson when his mother was still alive and living
in the same household he stated that all that he wanted to do was to
bring him to the United States so that he can take care of him since
he has no father and he does not care whether you call him his
adopted son or anything else. He stated there was no need to go
_through any adoption proceeding since the benefieiary is his true

blood grandson and he wanted to bring biro. to the United States.
When asked whether his wife had ever written to him as to whether
she would adopt the grandson legally or whether he had over -written
his wife in China asking her to adopt his grandson legally he replied
he did not understand the necessity of talking about those things
because there is no doubt that the child is his grandson. The petitioner agreed with the statutory declaration executed by his daughter-in-law that his son probably died on September 5, 1939 as indicated by her and that, his wife died in 1942. The petitioner stated
that since he last returned from .China in 1928 he has kept all
receipts for remittances he-has sent his family in China and the
attorney indicated that this evidence is in the files of the American
Consulate at Hong Song. .
The petitioner has filed an affidavit, which is in essence a brief, as
well as a separate brief filed by counsel. The affidavit sets forth the
conception of Chinese family life in the rural areas of China and
claims that a de facto adoption within the concept of Article 1079 of
the Chinese Civil Coder exists in the present case. In his brief counsel cites a number of cases to show that the trend of administrative
and judicial decisions with regard to "children" is a, liberal one and
that the legislation is remedial in nature, enacted to preserve and
keep together bona fide family relationships, realizing that to do
otherwise would cause undue hardship. He urges that the word
"adopt" be given its ordinary simple dictionary definition.
Article 1079 of the Chinese Civil Code specifies that an adoption
must be effected. in writing, unless the person to be adopted. has been
brought up as a child of the adopter since infancy. Also peitinent
are the provisions of Article 1072 which provide that where a person
adopts a child. of another as his own child, the adopter is called the
adoptive father or adoptive mother and the person adopted is called
adopted son or adopted daughter; Article 1074 which provides that
where a married person adopts a child.; he must do so jointly with
221

Interim Decision #1480
his spouse; and Article 1078 which provides that an adopted child
assumes the surname of the adopter. In order to be recognized as an
adoption, it is necessary that the adoptive parents have brought up
the child intending to adopt it. The mere feet of bringing up the

child is not sufficient.'
The term "child" is defined in section 101(b) (1) to mean a legitimate child, a stepchild, a legitimated child, an illegitimate child in
relation to its mother, an adopted child, and an eligible orphan. The
terms are all defined and connote a legal status or relationship and
are words of art as distinguished from words in ordinary usage.
Adoption is a juridical act creating between two persons certain relations, purely civil, of paternity and affiliation? Adoption in
legal contemplation is the act by which the parties thereto establish

the relationship of parent and child between persons- so related
by nature.' Acts of human kindness referable to an undertaking to
rear and educate a helpless child do not prove an agreement to
adopt; nor is loco parentis the equivalent of adoption. 4
The petitioner has the burden of establishing the existence of the

relationship upon which is predicated the benefit he seeks under the
immigration laws on behalf of the beneficiary. The beneficiary in
the instant case is the petitioner's grandson, whose father is the petitioner's deceased son. The beneficiary's mother continued to reside
in the same household together with another son until this other son
came to the United -States in 1961 and the beneficiary and his mother
are presently living together in the same household. The petitioner
in-his sworn statement of March 3, 1965 did not state that his grandson had been adopted by his wife, the beneficiary's grandmother or
that he ever consented to such adoption or that there was ever an
adoption procedure. He stated there was no need to go through an

adoption proceeding because the beneficiary is his true blood grandson and that after his father's death he had been sending money to
support him all the time and- it is different from any case of
adoption.
As far as the evidence establishes, there was never an actual intent
to adopt the child but the grandfather merely contributed to the support of the beneficiary who resided with and at all times was within
the custody of his own mother. The evidence fails to establish an
intent to adopt as distinguished from merely supporting the child.
11f. H. Van Der Valk, An Ontiine of Modern Wanda, Faintly Data
185 citing Dec. 1933-4828; Thom 1107; Satt-fa-Ifiung-yao
. 'Bouvier's IMO Dictionary (3rd Revision).
B2 Corpus 'aria Elecandurn 367.
'Garcia v. Beene et al., 242 S.W. 2d 230 (CA. Texas, 1951).

222 ,

(1939),

Interim Decision. #1480
It has not been esta a lished that the requirements of the Chinese
Civil Code relating to adoption have been complied with by the production of evidence relating thereto. When the term "child" was
defined as meaning an adopted child, it envisioned a legal status or
concept of adoption which has not been established in this case. The
mere fact that the petitioner may stand in loco parentis to the beneficiary is not the equivalent of adoption. We have examined the
case cited by counsel relating to equitable adoption but do not find it
relevanto Upon consideration of the entire record, we conclude that
the petitioner has not borne the burden of establishing that the beneficiary is his adopted child and, therefore, the beneficiary is not eligible for preference quota status as the adopted son of the petitioner.
• ORDER: It is ordered that the appeal be and the same is hereby
,

dismissed.
`Davis v. Celebrezze, 239 F. Supp. 608.

423


Interim Decision #1688

IVIATITS OF OARAMANZANA

In Visa. Petition Proceedings
A-14214539
Decided by Board February 0, 1967
Visa petition by a United States citizen to accord beneficiary, his adopted
daughter, preference status as an "unmarried daughter" under the provisions
of section 203(a) (1) of the Immigration and Nationality Act, as amended by
P.L. 89-238, is denied since the adoption, which occurred when beneficial' , was
over 21 years ve age, was not in compliance with the provisions Or section
101(b) (1) (E) of the Act, as amended, as required for immigration purposes.
ON BEHALF or PETIMSEIti Charles hi. Gianola, Esquire
1520 Tennessee Street
Vallejo, California 9359O
(Brief filed)

The case comes -forward on appeal from the order of the District
Director, San Francisco, dated December 19, 1966, denying the visa
petition for the reason that since the beneficiary was 21 years old when
the adopted daughter-adoptive parent relationship was established,
the beneficiary is ineligible for immigrant status as the daughter of a
United States citizen under section 203 (a) (1) of the Immigration and
Nationality Act, as amended.

The petitioner, a native of the Philippine Islands, a naturalized
citizen of the United States, 40 years old, male, seeks preference quota
status on behalf of the beneficiary as his unmarried daughter. The
beneficiary is a nittive and citizen of the Philippine Islands, 23 years
old. The beneficiary was adopted by the petitioner in the Superior
Court of the State of California in and for the County of Solano on
March 8, 1965 when she was 21 years old. However, the petitioner is
not seeking preference on behalf of the beneficiary as his adopted
daughter because manifestly she does not qualify as an adopted daughter for immigration purpOses within section 101(b) (1) (E) of the Act
since she was adopted when over 14 years of age.
However, counsel for the petitioner has filed a brief in which he
argues that the beneficiary qualifies as an unmarried daughter under

47

Interim Decision #1688
the provisions of section 203(a) (1) of the Immigration and Nationality Act as amended by the Act of October 3, 1965. He contends because
of the elimination of section 205 (b) of the Immigration and Nationality the Act of October 3, 1965, which prior to its amendment provides
that no petition for quota immigrant status or preference status on
behalf of a son or daughter under then existing paragraphs (2), (3),
or (4) of section 203 (a) of the Immigration and Nationality Act
should be approved unless the petitioner establishes that he is a parent
as defined in section 101(b) (2) of the Immigration and Nationality
Act of the alien with respect to whom the petition is made, Congress
evidenced its intent that pre-1959 law govern.
Counsel's argument, while ingenious, is not well taken. When Congress amended section 205 (b) of the Act of September 22, 1959, it
was pointed out in the accompanying report, H.R. 0890, that the
principal purpose of this second sentence of section 205 (b) of the Immigration and Nationality Act was to make certain that aliens adopted
by United States citizens or lawfully resident aliens (other than children as defined in section 101(b) (1) (E) of the Immigration and Nationality Act) should not be eligible for nonquota or preference status
under the Immigration and Nationality Act. The parenthetical reference to section 101(b) (1) (B) of the Immigration and Nationality
Act made it clear that for immigration purposes that restrictions contained in that definition should be continued, i.e., that for immigration purposes the adoption must take place while the aim was under
the age of 14 years and must have resided with and have been in the
custody of the adopting parent or parents for at least two years thereafter. The amendatory act, Public Law 89 -236, simply embodied in
sections 201 and 205 of the Immigration and Nationality Act revisions
to establish a single procedure for the filing of petitions to accord immediate relative status or preference status as the case might be, continued. the limitation of the number of lawful petitions which might
be approved for one petitioner, as well as the prohibition against the
approval of a petition for an alien whose prior marriage was determined by the Attorney General to have been entered into for the
purpose of evading the immigration law. 1 There is no indication that
any change was intended by failure to specifically reenact the prior
law.
The visa petition is predicated upon the theory that by virtue of
her adoption the beneficiary qualifies as a daughter. However, the
crux of the case is not whether the beneficiary is a child or a daughter
but whether she is adopted for purposes of the immigration law.
In order to be considered adopted for immigration purposes, there
must be compliance with the requirements contained in section 101
1

House Report No. 745 (89th Cong.4st sees.) 20-21.

48

Interim Decision *1688
(b) (1) (E) of the Immigration and Nationality Act as amended. That
section requires that the adoption shall have taken place while the
adoptee was under the age of 14 years and, in addition, satisfy the

residence and custody provisions. The beneficiary does not qualify
as an adopted child inasmuch as the adoption took place when she was
over 21 years of age. The appeal will be dismissed.
In connection with counsel's alternative request for sixth preference
status as a telephone operator, a petition should be filed with the
Service in accordance with 8 CFR 204.2(g).
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.

4 ►