Interim Decision 4E1828

MArrus or

IRARRA-OBANDO

In Deportation Proceedings
A-11404949 .
Decided by Board August 2, 1966 and November 4 1986
Decided by Attorney General December 28, 1967
Respondent's conviction in California of petty theft which was later expunged
under section 1208.4 of the Penal Code of California is not a "conviction" of a
grime for the purposes of section 241 (a) (4) of the Immigration and Nationality
.4.0t. [Matter of 0—, 91. & N. Dec. 159. reaffirmed.]

CHARGE:
Order: Act of 1952 —Section 241(a) (4) [8 U.S.C. 1251(a) (4)] —Convicted of
two crimes after entry, to wit: burglary in violation of
section 459 of the Penal Code of California, and petty
theft in violation of section 488 of that code.
ONBEELAIS OP RESPONDENT:
.?'pseph rwer, Esquire
111-14th Street, N.W.
Washington, D.C.

Or BEHALF or Slaw= :
Irving A. Appleman,
Appellate Trial Attorney
Stephen 11. Baffin

ildehltuxay, Esquire
Isloyd
228 McAllister Street

Trial AbLorney

(Brief submitted)

San Francisco, California 94102
(Brief sabniitted)

The case" comes forward pursuant to certification by the special
inquiry officer of his order dated March 1, 1966 that the proceedings be
terminated.
The record relates to a native and citizen of Nicaragua, 25 years old,
male, who was admitted to the United States for permanent residence
at Brownsville, Texas on October 31, 1957. On September 17, 1963 he
was convicted in the Municipal Court for the Santa Rosa Judicial District, Sonoma County, California of burglary in violation of section
459 of the Penal Code of California and was sentenced to serve ten
months in the county jail. On December 10, 1965 he was convicted in the
Municipal Court, in the City and County of San Francisco, California
of petty theft in violation of section 488 of the Penal Code of California
and was sentenced to serve 30 days in the county jail. On February 1,

576

Interim Decision #1828
1966 the special inquiry officer ordered respondent deported to Nicaragua under section 241 (a) (4) of the Immigration and Nationality
Act as an alien who has been convicted of two crimes involving moral
turpitude after entry into the United States.
On February 2, 1966 the Municipal Court of San Francisco, California issued the following order:
Under the power vested in me to correct clerical error, and in order to correct
such error in the record of this case, and good cause appearing therefore, (sic)
IT IS HEREBY ORDERED that the record in this case be corrected to show the
following disposition of the case on December 10, 1965, before me in Department 12:
Imposition of sentence is suspended, and the defendant placed on probation to
the court for 50 days, provided that as a condition of probation the defendant
shall serve 30 days in County Jail.

On February 3, 1063 an 'application for dismissal pursuant to section 1203.4 of the Penal Code of California Was made by the Public
Defender and on February 1', 1966 the Municipal Court of San rengicisco ordered that the plea or verdict of guilty heretofore entered be
set aside and a plea of not guilty be entered, and that the information
or complaint be dismissed, and that the defendant is released from

all penalties and disabilities xesulting from said offense.
The special inquiry officer cited hatter of G—, 9 I. & N. Dec. 159
in which the Attorney General upheld the holding of this Board that
an alien, whose conviction by a California court is later expunged
under section 1203.4 of the California Penal his .not been "cons
victed" of a crime for the purpose of section 241 (a).(4) of the Immigration and Nationality Act. However, in view of the decision in'the
case of BUM v. Immigration caul Naturalization Service, 350 Fad 87,
cert. den. February 21, 1966, in which the court indicated it did not
agree with

Matter of 49

,

—

and held that an alien had been convicted

within the muffling of section 241(a) (4), notwithstanding such conviction was expunged under California procedures, the special inquify
officer certified the case to this Board to afford an opportunity to reconsider Matter of 49—, in thelight of Burr..
Matter of 6 , 9 I.. & N. Dec. 159,. invOlied an alien who entered
the United States in 1955, was convicted in a California court of
forgery of a fictitious name committed June 12, 1959 and was sentenced on July 29, 1959 to a term of one year in the county jail but
simultaneously the sentence was suspended except as to 150 days
thereof and he was placed on 'probation for three years. Following his
release from jail, respondent moved for an expungement of his conviction under section 1203.4 of the Penal Code of California. The
motion was granted, defendant's plea. of "guilty" was entered, probation was terminated and the case dismissed, pursuant to section 1203.4
—

577

interim Decision #1828
of the Penal Code. The Board on September 7, 1960 approved the
-order of the special inquiry officer terminating proceedings. The
Board order was referred to the Attorney General pursuant to 8 CPR
3.1(•) (1) (ii).
Section 1203.4 of the California Penal Code provides that a defendant who has fulfilled the conditions of probation or who has been
discharged from probation prior to the termination • of its stated
period shall be permitted by the court:
• • • to withdraw his plea of guilty and enter a plea of not guilt ; or if he
has been convicted after a plea of not guilty, the court shall set aside the verdict
of guilty; and in either case the court shall thereupon dismiss the accusations
or information against such defendant, who shall thereafter be released from
ail penalties and disabilities resulting from the offense or crime of which he
has been convicted. The probationer shall be informed of this right and privilege
in•his probation papers. The probationer may make such application and change
of plea in Dentin or by attorney, or by the probation officer authorized in writing; Provided, That in any subsequent prosecution of such defendant for any
other offense, such prior conviction may be pleaded and proved and shall Lava
the same effect as if probation had not been granted or the accusation or information dismissed.

The Attorney General stated that the issue to be deviled was whether
an alien whose conviction is later expunged under this statute is an
"alien . . . who . . . is convicted of a crime.. for the purposes
of section 241(a) (4) of the Immigration and Nationality Act. (Em.Pha_sia supplied.) 1 The .Attorney General noted situations set forth
in the proviso as well as other exceptions, but found that in general,
an expungement under section 1203.4 renders a conviction of no force
and releases the defender from penalties and disabilities to which he
-would otherwise be subject; in other words, insofar as the law of California, is concerned, the expungement statute is generally effective to
*tank a 'difeudiint to 6, Status the same as though he had not been

'convicted.
For some 15 years the Board of Immigration Appeals has consistently held that a conviction expunge.•under the California, statute does
not afford a basis for deportation under either section 241(a) (4) of
the Immigration and Nationality Act or section 241(a) (11), relating to expulsion of aliens convicted of narcotic violations. Howlithe memorandum submitted by the appellate trial attorney raising the question of whether the California court had jurisdiction to enter its order of
February Z 1965 correcting the clerical error hi the sentence originally intpodecl, has been noted. However, it is believed that thin matter, disputing thp
authority of the Court to make en& an order, which was not considered by the
special inquiry officer nor raised by the trial attorney, should not be considered
initially on appeal but would:appear to be more properly the subject of a motion
to reconsider.

578

Interim Decision #1828
ever, in Hatter of A—F—, 8 I. & N. Dec. 429, 441 (1959), the Attorney
General ruled that expungement in narcotic cases had no effect in
deportation proceedings brought under section 241(a) (11), specifically limiting his decision to cases under section 241(a) (11). The Attorney General did not rule on the issue presented under section 241
(a) (4) with respect to nonnarcotic offenses, concluding that there
was a clear national policy militating against the abridgement of the
term "convicted" in the cases of aliens who were able to obtain cxpungement of narcotic convictions under state law.
In discussing the Service contention that the decision in Matter of
A—F—, when considered with Arrellano-F7,orta v. Hoy, 262 F.2d 667
•9th Cir., 1958) , cert. den. 362 U.S. 921, and Woody. Hoy, 2667.2d 825
(9th Clr, 1959), was applicable to cases arising under section 241
(a) (4), the Attorney General pointed, out that section 1203.4 of the
California Penal Code had not been brought into play in either case
and, therefore, did not serve to extend the Attorney General's ruling
in Matter of A—F— beyond the limits of section 241(a) (11).
The case of Pino.v. Landon, 349:17.S. 901 (1955), involved an alien
who had been deported under-section 241(a) (4) because of conviction
of two crimes. In the second conviction • the alien had received a suspended sentence and lied been p it on probation for a period of • one
year, at the end of the period the court revoked the sentence and;
under a unique Massachusetts practice requiring the consent of the
defendant, placed the case "on file".!Th600mt held that it was unable
to say that this conviction had attained 'each finality as to support
an order of deportation within the contemplation 'of section 241 of
the Inunigration. and Nationality Act and reversed the. judgment' of
the lower court.
The Attorney General in Matter of G— observed that cryptic as
this cursory decision might be, it almost certainly evidenced rejection
of the Court of Appeals' view that the con.straction of section 241(a)
(4) is purely a "federal question" to be determined in terms of the
policy behind its enactment and: without regard to state law and
procedure. The Massachusetts procedure, although revoking the sentence, leaves the plea or finding of guilt undisturbed while the California procedure, by setting aside the plea or finding of guilt, moves
a conviction even further away from an area of finality. Pine v.
Landon would seem, therefore, to make it an a fortiorari conclusion in
a nonnarcotics case that an expungement of an alien's conviction under
section 1203.4 of the California Penal Code withdraws the support
of that conviction from a deportation order under section 241(a) (4)
and brings it to the ground. The Attorney General concluded that
since what judicial precedent there was pointed to the validity of the
579

Interim Decision #1828
long-standing rule of the Board of Immigration Appeals which was
invoked in the matter under consideration, and since there was no
Congressional sign post pointing in the opposite direction, he affirmed

the Board's order.

Matter of
8 I. & N. Dec. 429 (A.G., 1959), which was referred to by the Attorney General in his decision hi Matter of G—, 9
I. & N. Dec. 159, held that a judgment of the California court, after
finding of guilt, that the proceeding 'be suspended and probation be
granted upon condition that the defendant serve one year in the county
jail, constituted a "conviction" within the meaning of section 241(a)
(11) of the 1952 Act; and that the finding of deportability under
section 241(a) (11) of the 1952 Act based upon conviction of a state
narcotics offense is not affected by a technical "expungement" or erasure of a conviction record, as authorized by some state statutes, upon
fulfillment of conditions. of probation, such as section 1203.1 of the
California Penal Code or section 1772 of the Welfare and Institutions
Code. The Attorney General's decisions in Hatter of A—F— and Matter of G— were cited with approval by the court in Garcia-Gonzales v.
Immigration and Naturalization Service, 844 F.2d 801 (9th Cir., 1965).
The court noted at page 810 its awareness of administrative holdings
that a convicted person who has actually received the benefits of the
provisions of section 1203.4 of the California Penal Code cannot be
deported under section 241(a) (4) of the 1952 Act but stated that it
agreed with the Attorney General as to the intention of Congress in
reference to aliens convicted of offenses mentioned in subsection (11),
expressing no view as to subsection (4)..a

In Kelly v. Immigration and Naturalization Service, 349 F.2d 473
(9th Cr., 1965) in which the sole issue involved was whether the
petitioner was convicted within the contemplation of 8 'U.S.C. 1251
(a) (11) after conviction and sentence by a California court for violating a state narcotic provision, when a so-called ."expungement" of the
conviction had taken place under section 1203.4 of the California
Penal Code, the court followed its prior decision in Garcia-Gonzales,
supra, and repeated its agreement with the decision of the Attorney
General in Matter of A—F—, 8 1. & N. Dec. 429, 445-446. The vigorous dissent of Judge Ely in the Kelly case, pages 471 to 480, is noted.
In Burr v. immigration and Naturalisation Service, 350 F.2d 87
(9th Cir., February 21, 1966), the alien was . convicted on March 28,
1951 of a crime involving moral turpitude,. received a suspended
See Hernandez-VaZensuela v. Rosenberg, 804 F.2d 689 (9th Cir., 1962)--sentence under California Youth Offender's Act (somewhat similar to 1203.4,
Calitorada Penal code) does not affect deportabffity under

(a) (11). "

580

S IT.SIO.A_

1251

Interim Decision 40828
sentence and was granted probation for a period of ten years on condition that he make restitution and serve ten months of his probationary period in jail, the probationary period to run concurrently
with the probationary period in another case. The alien was found
deportable under 8 U.S.C. 1251 (a) (4) as an alien who has been
convicted of a crime involving moral turpitnde (issuing insufficient

funds check with intent to cheat and defraud) committed within
five years after entry and was sentenced to confinement therefor for a
year or more. The order of deportation was affirmed in Burry. Edgar,
292 F.2d 593 (9th Cir., 1961). The alien was deported and again
entered the United States on January 7, 1963 and after a deportation
hearing it was determined that he was deportable under 8 U.S.C.
1251(a) (2) and 1252(f) as an alien who had unlawfully reentered
the United States after having previously been deported pursuant
to an order of deportation by reason of having been convicted of a
crime involving moral turpitude. Deportation was ordered on August 3;1964. The court held that the alien was not entitled to a review

of the prior deportation proceeding which ended in an unsuccessful
appeal unless there was newly presented evidence that could not have
been presented in the prior proceedings or the remedy was inadequate
or ineffective, citing section 106(e) of the Immigratiiin and Nationality Act, 8 U.S.C. 1105(c). The court held the alien who could have
raised defenses in the prior deportation hearing but did not, was not
entitled to review in proceedings brought to challenge the subsequent
deportation order entered two years after the alien's unlawful reentry
following the issuance of a deportation warrant. This holding disposed

of the primary issue in the case upholding the prior deportation order
and upholding the current deportation order under 8 U.S.C. 1252(f)
as an alien who, had unlawfully reentered the United States after
having previously been deported pursuant to an order of deportation
by reason of having been convicted of a crime involving moral
turpitude.
The court, however, went on to dispose of a number of other issues
raised by the petitioner and restated by the Immigration and Naturalization Service. Although there is no indication either in the administrative file, Matter of B—, A-6451540, or in the record before the
court, that the alien's conviction had been expunged under section
1203.4 of the California Penal Code, the court considered the contention that an alien whose conviction is later expunged has not "been
convicted" and the alien's reliance on Matter of G--, 9 I. & N. Dec. 159.
The court held that it had recently ruled three times to the contrary,
citing Garcia-Gonzales v. Immigration and Naturalization Service, 344
F.2d 804;

Ramirez-Villa v. Immigration and Naturalization Service,
581

Interim Decision #1828
347 F.2d 985; Kelly v. immigration and Naturalization Service, 349
F.2d 473. The court also stated that under the same reasoning adopted
by that court, in passing upon the effect of a state's expungement of

conviction, it believes section 1251(a) (4); a federal statute, was intended to have a uniform application, and that the effect of this federal statute would not be made to depend upon the niceties and nuances
of a state procedure.
The additional issues considered by the court -may be considered
in the nature -of dicta inasmuch as the court had disposed of the primary issue which involved the denial of a collateral attack upon the
prior deportation order of 1959. The court, relying upon the three cases
referred to, supra, in answer to Matter of G—, 9 I. & N. Dec. 159 (1960),
was relying upon three cases all of which involved narcotic convictions
and deportation orders pursuant to section 241(a) (11) of the Immigration and Nationality Act. These decisions were in accord with the
Attorney ,kl.eneral's holding in Matter of A—F—, 8 L & N. Dec. 429
(1959). Inasmuch as there was no evidence of an expungement pursuant
to section 1203.4 of the California Penal -Code, the Burr case did not
fall within the scope of the holding in Matter of G—, 9 L & N. Dec.
159. As the Attorney General pointed out in Matter of G—, supra., the
decisions in A;ivilarto-Floree v. Boy, 262 F.2d 667 (9th Cir., 1958),
and Wood v. Hoy, 266 F.2d 825 (9th Cir., 1959) , were not helpful in
assessing the consequences of expungement furthering proceedings under section 241(a) (4) or section 241(a) (11) inasmuch as section 1203.4
of the California Penal Code had not been brought into play in either
Barr v Immigration and Natviracase. In like manner, the holding
ization Service, 350 F.2d 87, is- onff no assistance.
The Attorney General in Matter of G—, 9 I. & N. Dec. 159, endorsed
the holding of the Board ;that, a conviction expunged under the California statute does not afford the basis for deportation under section
241 except as to narcotic convictions as spelled out in Matter of A—F8 I. & N. Dec. 429 (1959). The Attorney General in Matter of 0 2
was persuaded by the decision in Pko v. Landon, 349 U.S. 901,
that the Supreme Court rejected the view that the construction of
section 241(a) (4) was purely a "federal question" to be determined in
terms of the policy behind its enactment and with regard to state law
and procedure. Judicial precedents subsequent to the Attorney General's holding in Matter of G— in 1961 do not support a basis for abandoning the rule stated by .the Attorney General in Matter of 0—.
Indeed, the strong dissent of Judge Ely in Kelly v. Immigration and
N atwro2isatio" n Service, 349 F.2d 473, is an endorsement of the Attorney
General's view in Matter of G— and even expresses disagreement with
582

Interim Decision #1828
the opinion of the Attorney General as to narcotic convictions as held
in Matter of A—F—, 8 I. & N. Dec. 429.
We conclude that in view of the expungement under section 1203.4
of the California Penal Code the respondent has not been convicted of
the second crime of petty theft and, therefore, the charge of deportability for conviction of two crimes after entry based upon section

241 (a) (4) of the Immigration and Nationality Act must falls The
decision of the special inquiry officer will be approved.
We will not at this time certify our order to the Attorney General
as informally requested by the appellate trial attorney at oral argument. We will await a formal request by the Commissioner to refer the
case to the Attorney General as provided in 8 CFR 3.1 (h) (iii).
ORDER; It is ordered that the decision of the special inquiry
officer dated March 1, 1966 terminating the proceedings be and the
same is hereby approved.
BEFORE THE BOARD

The case comes forward on motion of the Service dated August 29,
1966 requesting reconsideration of our order of August 2, 1966 terminating the proceedings.

The facts have fully been set forth in our prior order of August 2,
1966 and will be restated briefly. The case came before us pursuant to
certification by the special inquiry officer of his order dated March 1,
1966 terminating proceedings. The record relates to a native and citizen
of Nicaragua, then 25 years old, male, who was admitted to the United
States for permanent residence at Brownsville, Texas on October 31,
1957. On September 17, 1963 he was convicted of burglary in violation
of section 459 of the Penal Code of California and was sentenced to
serve ten months in the county jail. On December 10, 1065 he was
convicted in Municipal Court, San Francisco, California of petty theft
in violation of section 488 of the Penal Code of California and was
sentenced to serve 30 days in the county jail. On February 1, 1966 the
special inquiry officer ordered respondent deported under section 241
(a) (4) of the Immigration and Nationality Act as an alien who had
been convicted of two crimes involving moral turpitude after entry
into the United States. On February 2, 1966 the Municipal Court of
San Francisco issued an order correcting the clerical error in the
record of conviction, suspended imposition of sentence, placed the
defendant on probation for 50 days, the defendant to serve 30 days as a

condition of the probation. On February 7, 1966 the Court granted an
application for dismissal, ordered that the plea of guilty theretofore
8

Matter of

9 & N. Dec.169 (A.G.:1961).

583

Interim Decision #1828
entered be set aside and a plea of not guilty be entered, and that the
information or complaint be dismissed and the defendant be released
from all penalties and disabilities resulting from said offense pursuant to section 1203.4 of the Penal Code of California.
On the basis of the holding in Matter of G—, 9 I. & N. Dec. 159
(Attorney General 1961), the special inquiry officer terminated proOn Anaust 2, 1966, after consideration of the briefs filed by

ceedings.

the trial attorney and by counsel for the respondent, and upon consideration of oral argument by the appellate trial attorney, we concluded that in view of the expungement under section 1203.4 of the
California Penal Code the respondent had not been convicted of the
second crime of petty theft and therefore the charge of deportability
for conviction of two crimes after entry based upon section 241(a) (4)
of the Immigration and Nationality Act must fall, and we approved
the decision of the special inquiry officer terminating. proceedings.
The present motion relies principally upon the case of Burr v. Immigration and Natutralization Service, 350 F.2d 87.1 In our prior order
of August 2, 1966 we considered the Burr case at length. The Buff case
involved an alien who had entered the United States an October 8, 1946,
had been convicted on March 28, 1951 of a crime involving moral turpitude, received a suspended sentence, was granted probation for a period of ten years conditioned upon his making restitution and serving
ten months of his probationary period in jail, the alien was found
deportable under 8 U.S.C. 1251 (a) (4) of the Immigration and Nationality Act for crime committed within five years after entry, and
was deported in 1959. He reentered the United States on January 7,
1963 and after a deportation hearing, it was determined that he was
deportable under 8 U.S.C. 1251(a) (2) and 1252(f) as an alien who
had unlawfully reentered the United States after having previously

been deported pursuant to an order of deportation by reason of having
been convicted of a crime involving moral turpitude, etc. The court
held•hat the alien was not entitled to a reivew of the prior deportation
proceeding which had ended in an unsuccessful court appeal (292
F2d 593) unless there was newly presented evidence which could not
have been presented in the prior proceedings or the remedy was inadequate or ineffective, citing section 106(c) of the Immigration and
Nationality Act (8 U.S.C. 1105(c)). The court held that the alien

who could have raised defenses in the prior deportation hearing but
' Also cited in the Service's motion were the cases of Garcia-Gonzales v. immigration and Naturalization. Service, 344 11.2d 804 (OM Cir., 1965), which involved
a conviction for unlawful possession of heroin; and Hernandez-Valenauela v.
Rosenberg, 801 lr.2d 689 (0th Cir. 1962), which likewise involved a conviction
for a narcotics offense and a sentence under the Youth Offenders' Act.

584

Interim Decision #1828
did not, was not entitled to a review in proceedings brought to challenge the subsequent deportation order entered two years after the
alien's unlawful reentry following the issuance of a deportation

warrant.
We held that this holding disposed of the primary issue in the
Burr case upholding the prior deportation order and upholding the
current deportation order under 8 U.S.C. 1252(f). We held that
the additional issues considered by the court were to be considered in
the nature of obiter dicta inasmuch as the court had disposed of the
primary issue which involved the denial of a collateral attack upon_
the prior deportation order of 1959. In deciding these additional issues, the court, relying upon three cases all of which involved narcotic
convictions and deportation orders pursuant to section 241(a) (11),.
held these decisions were in accord with the Attorney General's
holding in Matter of A—F—, 8 I. & N. Dec. 429 (1959). We also held
that inasmuch as there was no evidence of an expungement pursuant to.
section 1203.4 of the California Penal Code, the Burr case did not
fall within the scope of the holding in Matter of G—, 9 I. 85N. Dec. 159.
(Attorney General 1961), in which the Attorney General pointed out
that prior decisions in Arrellano-Flores v. Hoy, 262 F. 2d 667 (9tb
Cir. 1958) , and Wood v. Hoy, 266 F2d 825 (9th Cir., 1959) , were not
helpful in assessing the consequences of expungement proceedings
under section 1203.4 of the California Penal Code inasmuch as that
section of the California Penal Code had not been brought into play
in either case. In like manner, we held that the holding in the Burr
case, in which there was no evidence that the conviction had been
expunged pursuant to section 1203.4 of the California Penal Code, was
likewise of no assistance.
In our order of August 2, 1966 we explored at length the holding

of the Attorney General in Matter of G—, 9 I. & N. Dec. 159, which
involved an alien who is convicted of forgery and was sentenced on
July 29, 1959 to a term of one year, the sentence was suspended except as to 150 days thereof, placed on probation for three years, moved
for an expungement of his conviction under section 1203.4 of the
Penal Code of California which was granted, defendant's plea of
"guilty" was set aside and the case dismissed pursuant to section.
1203.4 of the California Penal Code. The Attorney General held that
an alien whose conviction by a California Court is later expunged
under section 1208.4 of the California Penal Code, has not been

"convicted" of a. crime for the purposes of section 241 (a) (4) of the
Immigration and Nationality Act, noting the exception to the rule.
carved out in Matter .of A.—F—, 8 I. & N. Dec. 429 (1959), holding

that an expungement under section 1203.4 of the California Penal
585

Interim Decision #1828
Code did not affect a narcotics conviction which served as the basis of
a ground of deportation under section 241(a) (11) of the Immigration
and Nationality Act.
The Attorney General, in Matter of G—, 9 I. & N. Dec. 161, noted
that since 1943 the Board of Immigration Appeals had consistently
held that a conviction expunged under the California statute did not
afford a basis for deportation under section 241(a) (4) of the Immigration and Nationality Act. The Attorney General's holding in Matter of A—F—, awra, was grounded on the history of section 241(a)
(11) and section 241(b) which is concerned with pardons and judicial recommendations against deportation and concluded that there
was a clear national policy militating against the abridgement of the
term "convicted" in the cam of aliens who are able to obtain expungement of narcotics convictions under state law. The Attorney General
in Matter of G—, noted that section 241(a) (4) nevertheless remains
substantially less severe than section 241(a) (11), especially when
viewed in conjunction with section 211(b) ; furthermore, and perhaps
of more significance, it is not the end product of a history pointing
to a stringent national policy of 'the nature referred to in Matter of
A—F— regarding narcotics. The Attorney General was unable to
agree that the holdings of Arreliano-Flores 2 and Wood 8 in neither
of which section 1203.4 of the California Penal Code had been brought
into play, served to extend his ruling in Matter of A—F—, beyond
the precise boundary marked off for it — i.e., beyond. the limits of
section 241 (a) (11). The Attorney General relied upon the holding in
Milo v. Landon, 849 U.S. 901 (1955), which rejected the Court of
Appeals' view that the construction of section 241(a) (4) is purely a
"federal question" to be determined in terms of the policy behind its
enactment and without regard to state law and procedure; and concluded that in a nonnarcotics case, an expungement of an alien's conviction under section 1203.4 of the California Penal Code withdraws
the support of that conviction from a deportation order under section 241(a) (4) and brings it to the ground. The Attorney General
concluded that since what judicial precedent existed pointed to the
validity of the long standing rule of the Board of Immigration Appeals which was invoked in that matter, and since there was no congressional signpost pointing in the opposite direction, he found no
reason to reverse the rule and approved the Board's order approving
the order of the special inquiry officer terminating proceedings.
We would hesitate to recommend a change in the holding of the
Attorney General in Matter of G—, 9 I. & N. Dec. 159, upon the basis
,

2

282 P. 24 657 (9th Cir. 1058). cert. dented 362 U.S. 821.

286 F.2d 825 (9th (3r. 1959).

586

Interim Decision #1$28
of the oblique, subsidiary holding reached in the case of Burr v. Immigration and Naturalization Service, 350 F.2d 87, in which there
was no actual expungement under section 1203.4 California Penal
Code. The Burr case adds nothing to Matter of G.— which was not
already considered in the latter case.
The other matters set forth in the motion are largely a rehash or
a restatement of arguments previously considered and rejected by the
Attorney General in Matter of G—. The two cases which have been
decided in the 9th Circuit since the Attorney General's decision in
Matter of G—, Hernandez-VaZensuela v. Rosenberg, 304 F.2d. 639
(1962), and Garcia-Gonzales v. Immigration and Naturalization Service, 344 F.2d 804 (1965), both involve narcotics offenses and deportation orders under section 241(a) (11) of the Immigration and Nationality Act (8 U.S:C. 1251 (a) (11) ) . The latter case cited with
approval the Attorney General's holding in. Matter of A 17 , 8
Z. & N. Dec. 429, without expressing any view as to snb-section (4).
9 I. & N. Dec. 159, the Attorney GenIn summary, in Matter of
eral restated the general rule that an alien, -whose conviction by a California court is later expunged under section 1203.4 of the California
-

—

Penal Code, has not been "convicted" of a crime for the purpose of
section 241(a) (4) of the Immigration and Nationality Act and limited

his exception to that ruling as expressed in Matter of A—F—, SI. & N.
Dec. 429, to narcotic offenses which, despite an expungement, still remain a basis for deportation under section 211 (a) (11) of the Act. The
primary holding in Burr v. Immigration and Naturalization Service,
350 F211 87 (9th Cir. 1965), was that the prior deportation proceedings, which ended in an unsuccessful appeal to the courts, could not be
collaterally attacked unless newly presented grounds which could not
have been presented in the prior proceedings or the remedy was inadequate or ineffective as provided by section 106 (t) of the Immigration
and Nationality Act (8 U.S.C. 1105(e) ). The additional holdings in
the Burr case involved a crime which constituted a felony and in which
the question of expungement under section 1203.4 of the California
Penal Code was not present. These holdings are urged as grounds for
reconsideration of the Attorney General's rule in Matter of G . In
view of the well reasoned rationale of the Attorney General's holding
in Matter of G—, the Blum ease appears to present very weak judicial
precedent upon which to base so significant a step, and does not constitute persuasive judicial precedent upon which to base a holding contrary to Matter of
It may be noted that in the numerous congressional amendments which have been made in the Immigration and
Nationality Act of 1952, culminating in the Act of October 3, 1965,
Congress has given no signpost or indication that the rule in Matter of
—

587
321-654-69-39

Interim Decision #1828
0—, of which it undoubtedly was aware, should be abandoned or
modified. The motion will be denied.
ORDER: It is ordered that the motion be and the same is hereby
denied.
BEFORE THE ATTORNEY GENERAL ON REVIEW
In this case the Board of Immigration Appeals has affirmed the decision of the Special Inquiry Officer terminating deportation proceedings. The Board's decision has been referred to me for review at the
request of the Commissioner of Immigration and Naturalization, under
8 CFR 3.1(h) (1)
These proceedings were instituted on the charge that the respondent had been convicted of two crimes involving moral turpitude and

was thus deportable under section 241(a) (4) of the Immigration and
Nationality Act (8 U.S.C. 1251 (a) (4) ). Subsequently, his second conviction was expunged by a California courtomder section 1202.4 of the
California Penal Code." The Special Inquiry Officer thereupon terminated these proceedings because of the long-established administrative
rule that a non narcotics conviction which has been expunged pursuant
to such state procedure is not a "conviction" for the purpose of section
241(a) (4) of the Immigration and Nationality Act. The Immigration
and Naturalization Service wishes me to reconsider that rule, pointing
to Burr v. immigration and Naturalization Service, 350 F. 2d 87 (9th
Cir. 1965), cert. den. 383 'U.S. 915 (1966), as indicating judicial disagreemert with the rule.
Prior to 1969 the Board had consistently hold for over fifteen years
that a conviction expunged in accordance with such state procedure
does not afford the basis for deportation either under section 211 ( a) (4)
or under section 241 (a) (11), the latter of which relates to convictions
in narcotics cases. In Matter of A.—F—, 8 I. & N. Dec. 429 (1959),
the Attorney General overruled the Board as to narcotics convictions,
stating, at p.446:
-

I limit my disagreement to the precise issue presented—namely, a deportation

Proceeding brought under § 241 (a) (11), as it may be affected by state laws of the
nature of the-Oalifornia statutes considered herein.

In Matter of G—, 9 L & N. Dec. 159 (1961), Attorney General Rogers
held that his ruling in Matter of A—F—was indeed to be limited to
The Board has properly declined to pass upon the question, raised by the
Immigration and Naturalization Service for the first time on appeal, as to the
jurisdiction of the California court to issue its none pro tune "corrective" order
of February 2, 1966, without which respondent's conviction could not have been
expunged under section 1203.4. That question is this not beftire me now and I
express no views on it.

588

Interim Decision #1828
narcotics convictions, because of the particular legislative history of
section 241(a) (11), which disclosed a "clear national policy militating
against the abridgement of the term 'convicted' in the cases . . . of
narcotics convictions" (Id., at 167), but that as to nonnarcotics cases
there was "no reason to reverse the [Board's long-standing] rule." Id.,
at 169.
In the present case the Board, in its order of August 2, 1966, approved the decision of the Special Inquiry Officer and, in its order of
November 4, 1966, denied the Service's motion requesting reconsideration of its prior order. Both orders were accompanied by opinions
amply supporting the Board's view that the Service had not demonstrated sufficient reason to warrant administrative re-examination of
this rule, which has been hi effect since at least 1943.

Attorney General Rogers, in Hatter of G—, carefully considered the
instant question and concluded that in determining the effect of expungement of convictions on an alien's deportability a distinction is
warranted between narcotics convictions for the purpose of section
241 (a) (11) and other convictions for the purpose of section 241(a) (4).
In the Burr case, decided in 1965, the Court of Appeals for the
Ninth Circuit indicated its disagreement with Matter of G—, stating
that its holding in three earlier cases of that year,' to the effect that
expungement of an alien's narcotics conviction does not affect his deportability, "applies equally" to deportability in a non-narcotics case.
350 F.2d• at 90. This statement, however, was clearly not necessary to
the decision in Burr. The issue raised there by the alien as to the
effect of expungement of a non-narcotics conviction on deportability
was purely hypothetical, since he sought to attack collaterally a prior
deportation grounded on a conviction which had not been and could
not have been expunged.' In this context the court properly rejected
the alien's contention summarily. It could have done so by distinguishing Matter of G— as inapplicable because it involved nonnarcotics convictions which had actually been expunged.
Moreover, it should be noted that although in Burr the court
cursorily equated narcotics convictions with non-narcotics convictions,
Garcia-Gonzales v. INS, 344 F.2d 804 (9th Clr. 1965), cert. den. 382 UPS.
840 (1965) ; Ramirez-Villa v. INS, 347 F.2d 985 (9th Clr. 1965), cert. den. 382
U.S. 908 (1965) ; Eellj v. INS, 349 F.2d 478 (9th Ob. 1965), cert. den. 382 U.S.
932 (1965).
As the Acting General Counsel of the Service noted in his memorandum in
support to the Service's motion for reconsideration of the Board's August 2
order (p. 4), Burr could not have qualified for expungement under section
1203.4 of the California Penal Code; and as noted in the Solicitor General's
brief in opposition to Burr's petition for certiorari (p. 8), he could not horn
qualified for expungement under ueclion 1203.4a.
589

Interim Decision #1828
only a few months earlier a different panel of the same court, in one
of the cases relied on in Burr, had referred to the distinction made
by the Attorney General in Matter of
between narcotics and other
convictions, following a full discussion of the general question of the
effect of expungment on deportability, and expressly disclaimed any
views as to that distinction, deliberately limiting its holding to narcotics cases. Garoia-Gonsaliesv.INS,supra, at 810.
Similarly, in the most recent Ninth Circuit case involving the question of the effect of expungement on deportability for a narcotics
conviction, the court merely reaffirmed its 1965 holding that expungement under California Penal Code § 1203.4 "does not wipe out the
conviction , . . for the purposes of §241(a)(11) of the Immigration
and Nationality Act." Brownrigg v. INS, 356 F. 94 877, 878 (1966)
(emphasis added). It seems significant that Judge Barnes, who wrote
the Brownrigg opinion and had also written the Burr opinion, did
not cite the latter as precedent for or otherwise assert a broader
ruling, to the effect that expungement does not wipe out a conviction
for the purpose of determining deportability under any provision of
the Immigration and Nationality Act.
In these circumstances, I do not feel that the court's statement in
Burr, which is relied upon by the Service, requires reconsideration
of the Attorney General's carefully considered ruling in Matter of
The Board's decision is affirmed.


Interim Decision #2271

MATTER OF SAMEDI

In Section 246 Proceedings
A-11186335

Decided by Board March 19, 1974
Where respondent's marriage to a United States citizen, which served as a basis
for visa availability for adjustment of status under section 245 of the Immigration and Nationality Act, as amended, was subsequently annulled in
California, adjustment of status is rescinded under section 246 of the Act
notwithstanding the fraud for which the marriage was annulled was unrelated to the immigration laws, since, under California law, the annulment
decree renders the marriage void ab initio, irrespective of the ground of
annulment.
ON BEHALF OF RESPONDENT:

Seymour Mandel, Esquire

3440 Wilshire Boulevard, #608
Los Angeles, California 90010

This is an appeal from the immigration judge's order of
November 4, 1970, rescinding the adjustment of status which had
been granted the respondent on April 24, 1969 pursuant to the
provisions of section 245 of the Immigration and Nationality Act.
The respondent obtained visa availability as an immediate relative, pursuant to section 201(b) of the Immigration and Nationality Act, as the spouse of a United States citizen. The appeal will be
dismissed.
The record relates to a 36-year-old unmarried male alien, a
native and citizen of Iran. The marriage which entitled him to
immediate relative status was annulled in California on October 3,
1969. The annulment action was brought by his wife on the ground
of his fraud in representing falsely that he would have children
with her. He defaulted in the action.
In California, judgments of annulment relate back to the date of
the marriage and constitute a finding that no marriage ever existed, irrespective of whether they be voidable or void marriages,
Matter of V—, 6 I. & N. Dec. 153 (B IA 1954). Counsel seeks to
distinguish the annulment in Matter of V—, supra, on the ground
that the fraud there involved related to the immigration laws and

was a fraud on the United States Government, whereas the fraud
625

Interim Decision #2271
for which the respondent's marriage was annulled (refusal to have
children) was unrelated to the immigration laws and was upon his
spouse only.
We see no basis for distinguishing Matter of V—, supra, on the
grounds suggested. The relation-back doctrine applies to all annulments in California, irrespective of the ground. The result of
the decree is a judicial determination that no marriage ever existed. Because the respondent's status was based on a marriage
which has been decreed never to have existed, the respondent was
not in fact eligible for the adjustment of status which he was
granted. Accordingly, the immigration judge was correct.
ORDER: The appeal is dismissed.

Maurice A. Roberts, Chairman, Dissenting:

I respectfully dissent from the decision of the Board. I would
reverse and remand for further proceedings.
The facts of record are not in substantial dispute. The respondent is a 36-year-old alien, a native and citizen of Iran, who was
admitted to the United States on August 31, 1960 as a nonimmigrant student and remained longer than permitted. On April 12,
1968, during the pendency of deportation proceedings against him,
he married Patty Gale Terry, a United States citizen, on whose
visa petition he was accorded immediate relative status on October 17, 1968 under section 201(b) of the Immigration and Nationality Act. On April 24, 1969, the immigration judge granted respondent's application for adjustment of status under section 245 of the
Act. His wife thereafter filed a complaint for annulment in a
California court, alleging that the marriage had been induced by
the respondent's fraudulent concealment of his intention not to
have children. A default judgment of annulment was entered by
the court on October 3, 1969. Rescission proceedings under section
246 of the Act were initiated on March 30, 1970 by the filing of a
notice of intention to rescind, based on a series of factual allegations (Ex. 1). Respondent contested the action and demanded a
hearing.
At the hearing, the Service relied exclusively on the record of

the annulment to prove its charge that the respondent was not in
fact eligible for the section 245 adjustment. Counsel for the
respondent sought a continuance in order to determine what
evidence to present. The immigration judge denied the continuance, concluding that under Matter of V—, 6 I. & N. Dec. 153 (BIA
19M), the California annulment decree made out a ease which
could not be challenged by evidence. In his order before us on
626

Interim Decision #2271
appeal, the immigration judge held that under Califronia law the
annulment decree rendered the marriage void ab initio, thereby
retroactively undermining the visa petition approval based on that
marriage and rendering the respondent ineligible for a visa and
hence ineligible for section 245 adjustment. Rescission was ordered. The Board today endorses that action, relying on the
rationale of Matter of V—, supra. In my view, that decision is
distinguishable and does not compel the result reached by the
Board.
A rescission order under section 246 divests the alien of his
previously granted status as a lawful permanent resident and

paves the way for his deportation if he does not depart from this
country. To support rescission, the administrative fact findings
must be based on evidence which is clear, convincing and unequivocal, Waziri v. INS, 392 F. 2d 55 (CA. 9, 1968); Rodrigues v. INS,
389 F.2d 129 (CA. 3, 1968); Yaido v. INS, 424 F.2d 501 (CA. 6, 1970).
By analogy to the rule of construction laid down for deportation
statutes, section 246 should be narrowly construed. "[S]ince the
stakes are considerable for the individual, we will not assume that
Congress meant to trench on his freedom beyond that which is
required by the narrowest of several possible meanings of the words

used." Fong Hate Tan v. Phelan, 333 U.S. 6 at p. 10 (1948).
Matter of V—, supra, was not a rescission case. It arose under
section 3 of the Gigolo Act of May 14, 1937, which provided for the
deportation of "any alien who at any time after entering the
United Sates is found to have secured either a nonquota or
preference-quota visa through fraud, by contracting a marriage
which, subsequent to entry into the United States, has been
judicially annulled retroactively to date of marriage." The question there presented was whether the California annulment had
such retroactive effect. We held that it had .l. The statute there

involved was geared, in terms, to a marriage "judicially annulled
retroactively to date of marriage." The rescission statute now
confronting us contains no such provision. Matter of V—, supra, is
inapposite to the present case, in my view.
It is interesting to note that the 1937 Gigolo Act's counterpart in
the present Act contains no similar provision. Under section
241(cX1) of the present Act, a judicial annulment or divorce within
two years after entry on documents based on marriage within the
prior two years creates merely a rebuttable presumption of fraud,
which leaves the way open for the alien to show that the marrige
was not in fact "contracted for the purpose of evading any
1

A contrary view was expressed in Ciam v. Adkins, 126 F. Supp. 828 (N.D.

Texas 1954).

627

Interim Decision #2271
provisions of the immigration laws." Had the respondent obtained
a visa, rather than section 245 adjustment, on the basis of his
marriage to Patty Gale Terry, her annulment decree would not
have had conclusive effect. Section 241(c) is designed to deal
specifically with immigration status obtained by fraudulent marriages contracted for the purpose of evading the provisions of our
immigration laws. In applying the provisions of section 246, which
are general in nature, we should not assume that Congress
intended an annulment decree to have conclusive effect beyond
that which it would have in the provisions of section 241(c), which
were specifically tailored to deal with sham immigration marriages.
Even taken at face value, the annulment decree entered against
the respondent does not make out a fraud against the United
States. At most it makes out a case of fraud against Patty Gale
Terry. Insofar as concerns the United States, there is nothing to
indicate that respondent's marriage to Miss Terry was a sham,
entered into without marital intent for the purpose of evading our
immigration laws. There is nothing in this record to show that on
April 24, 1969, when respondent's status was adjusted under
section 245, he "was not in fact eligible for such adjustment of
status" within the meaning of section 246 (emphasis supplied).
Quite the contrary, he was then clearly in fact married to Miss
Terry and eligible for adjustment of status. The most that can be
said is that he was not then "in law" eligible for such adjustment.
That conclusion can be reached only by resort to the legal fiction
of "relation back" which would render the marriage void ab
In my view, we should not indulge in that fiction here.
While it may be true, as we concluded in Matter of V—, supra,
that in California an annulment decree has such retroactive effect,
the same cannot be said with respect to similar judgments in other
states. See Matter of M—, 3 I. & N. Dec. 25 (BIA 1947) (New York);
Matter of B—, 3 L & N. Dec. 102 (BIA 1947) (New York); Matter of
T , 3 L & N. Dee. 528 (BIA 1949) (Texas); Matter of R—, 4 L & N.
Dec. 345 (Central Office 1951) (District of Columbia).
Section 246, which is restrictive of the rights of resident aliens,
should be narrowly construed. Rescission thereunder should not
be made to depend on the vagaries of the laws of the different
states with respect to whether or not an annulment decree makes
the marriage void ab initio. Cf. Matter of A— F—, 8 L & N. Dec.
429, 446 (A.G. 1959).
It seems to me that the Board's decision in this case is inconsistent with the position it announced in Matter of Yaldo, 12 I. & N.
Dec. 830 (BIA 1968), affirmed Yaldo v. INS, 424 F.2d 501 (C.A. 6,
1970). In that case, the alien's wife had obtained an annulment on
—

628

Interim Decision #2271
charges that he married her without marital intent but solely to
obtain permanent residence. At the rescission proceedings under
section 246, the Service did not rely exclusively on the annulment
decree but also presented the testimony of the former wife. In
sustaining the rescission order, we gave prima facie rather than
conclusive effect to the annulment decree, pointing out (footnote 1)
that "This Board has held that the relation back theory of an
annulment decree is not followed blindly where to do so would

result in an injustice to an innocent respondent. Matter of B—, 3 I.
& N. Dee. 102, BIA, 1947."
Here, the Service tried the charge on the theory that the
annulment decree was conclusive and it made no effort to prove by
other evidence that the marriage was entered into by the respondent in bad faith for the purpose of evading the immigration laws.

The immigration judge accepted that theory and refused to afford
counsel for respondent an opportunity to present evidence. In my
view, the hearing should be reopened and the record remanded to
the immigration judge for further hearing, at which both sides
would have the opportunity to present evidence as to the bona
fides of the marriage. The immigration judge should then make
his findings as to whether the respondent was in fact eligible for
his section 245 adjustment, without giving the annulment decree
conclusive effect as voiding the marriage ab initio.
Warren R. Torrington, Member, Concurring:

The dissenting opinion requires a few comments.
Section 241(c)(1) of the Immigration and Nationality Act, to
which the dissenting opinion so extensively refers, is not pertinent.
It deals with the procurement of visas or other documentation by
fraud, an issue not involved in this case. The comparisons attempted in the dissenting opinion are, at best, interesting speculations.
The validity of a marriage does indeed depend on the laws of the
particular jurisdiction. That fact does not make the decision
vagarious or freakish. There is no federal law of marriage, divorce
or annulment in the United States.
Matter of Yaldo, 12 I. & N. Dec. 830 (B IA 1968), cited in the
dissenting opinion, is inapposite. There the issues were whether it
had been proper to permit the ex-wife, a party to a sham marriage,
to testify to confidential communications made during the course
of the marriage, and whether the government had sustained its
burden of proof. Matter of B—, 3 I. & N. Dec. 102 (BIA. 1947) which
had been mentioned in a footnote, in Matter of Yaldo, supra, had
dealt with a special, sympathetic situation, and had misinterpreted the law of New York.
I concur in the dismissal of the appeal.
629


Interim Decision #1331

MATTER OF FONG

In VISA PETITION Proceedings
A-13264113
Decided by Boamd April 6,1064
An adoptive brother is eligible for preference quota status under section
203(a) (4), Immigration and Nationality Act, as amended, if he qualifies as
an adopted child of the same parents of the petitioner. (Matter of

6 I. & N. Dec. 180, superseded.)

The case conies forward on appeal from the order of the District

Director, Boston District, dated December 13, 1963, denying the visa
petition for the reason that Matter of 21 , 6 I. & N. Dec. 180, holds
that brothers and sisters through adoption are not brothers and sisters
within the meaning of section 203 (a) (4) of the Immigration and
Nationality Act.
The petitioner, a native of China and a naturalized citizen of the
United States, 35 years old, female, seeks preference status under section 203(a) (4) of the Immigration and Nationality Act on behalf of
her adopted brother, a native and citizen of China, born January 31,
—

1949 (CR28 1 8). Section 203(a) (4) provides for preference quota
status on behalf of a brother or sister of a citizen of the United States.
-

-

An office memorandum dated December 13, 1963, accompanies the
denial of the visa petition. The memorandum reflects that the petitioner applied for admission to the United States at Boston, Massachusetts on March 26, 1952; that her father Fong Tan TOW, given
name, Fong Gong Wah, marriage name, was then living in the Philippine Islands and her mother Jee (Gee) (Shee) was living in Mar Det
Village; that she did not have any brothers or sisters, either natural
or adopted; that she had only one son, Chin Doo Taw, born OR 38 4 2
(April 29, 1940) in Chew Jung Village and living with her mother in
-

-

Mar Det Village. Subsequently, the petitioner submitted visa petitions for her mother, Fong Wai Lan also known as Gee Wai Lan, her
daughter, Chin King Toy, and an adopted brother, Fong Sui Kee.

In support of these visa petitions she submitted her own affidavit, and
an affidavit of her husband and a copy of an adoption agreement to
497

Interim. Decision 41331
substantiate the claimed relationships. Inasmuch as this was the first
time she had mentioned she had a daughter and an adopted brother,
the petitioner was interviewed under oath on December 12, 1963.
She admitted that she never had a son by the name of Chin Doo Taw
but merely showed him on the record because everyone else was doing
the same thing. She also testified that she had two natural sisters
and one adopted brother. Her explanation for not previously reporting their existence was that since they were residing on the mainland
of China when she came to the United States she thought that if she
disclosed their existence some harm might come to them. The visa
petitions filed in behalf of the petitioner's mother and daughter were
approved on condition that the blood typing of the petitioner and her

husband and the beneficiary be found compatible. However, it was
recommended that the visa petition filed on behalf of the adopted
brother, Fong Sui Kee, be denied on the basis of the decision in
Matter of M—, 6 I. &N. Dec. 180.
It is noted that Matter of AI—, supra, was decided on June 23,
1954, and held that brothers and sisters through adoption were not
"brothers" or "sisters" within the meaning of section 203(a) (4) of
the Immigration and Nationality Act and were not eligible for preference quota status under that section. However, subsequently there
was enacted the Act of September 11, 1957 (71 Stat. 639, 8 U.S.C.A.
1101, P.L. 85416 (86th Cong., 1st Sess.) S. 2792) which provided in
section 2 thereof an addition to section 101(b) (1) of the Immigration
and Nationality Act consisting of subparagraph (E) to include in the
definition of the term "child" a child adopted while under the age of
14 years if the child has thereafter been in the legal custody of, and
has resided with, the adopting parent or parents for at least two years.
Senate Report No. 1057 (85th Cong., -1st Sess.) to accompany S. 2792,
stated that at present the term "child" does not include adopted
children and it is believed the proposed amendment is desirable to
prevent hardship in cases where the child is chargeable to a heavily
oversubscribed quota and would not otherwise be able to accompany
his adoptive parents. Adequate safeguards were included to prevent
abuses. Presumably, this meant the limitation to adoption while under
14 years of age and the requirement of custody and residence thereafter
for two years by the adopting parent or parents as well as the termination of any immigration right, privilege or status as to the natural
parent of such adopted child.
The amendment of September 11, 1957, equated the status of a properly adopted child to that of a. "child" as defined in section 101(b) (1)
for immigration purposes?. In view of the enactment of this amen2

Matter of A.

, 8 I. & N. Dee. 242.

—

498

Interim Decision #1331
datory statute in 1957 subsequent to our decision in Matter of M—, 6
I. 86 N. Dec. 180 (1954), and the recognition therein for the first time
of an adopted child as a, "child" it is believed that the matter should
be reexamined in view of the legislative intent and history to determine
whether an adopted brother or sister is included within the term
"brothers" or "sisters."
The term "brothers" or "sisters" as used in section 203 (a) (4) of the
Immigration and Nationality Act is not defined and recourse may be
had to the statutory construction adopted to similar words in other
legislation to determine whether adopted brothers and sisters are included within that terminology. 2 Adoption is usually regarded as
creating the =de relationship between the adoptive parent and the
adopted child as between a natural parent and his child .s By statute,
in most jurisdictions, but not a common law, a person may adopt a
child; and in such a case, unless there are statutory provisions to the
contrary, the rights, duties and obligations arising from the artificial
relationship will be substantially the same as those arising from the
natural relation of parent and child. Where the artificial relation of
parent and child is created by ad.option under the statute, the relationship will be the express provisions of the statute, and even independently of such provisions, give rise to substantially the same rights,
duties, and liabilities as arise out of the natural relationsbip. 4
In the case of Woodward v. U.S., 341 U.S. 112 (1951) the Supreme
Court was considering an appeal from a decision of the Court of
Appeals for the Eighth Circuit (185 P. 2d 131) which had held that
an adopted brother was not a permissible beneficiary under section
602(g) of the National Service Life Insurance Act of 1910.° The
Court of Appeals for the Third Circuit has reached a directly contrary
conclusion under similar circumstances in. Carpenter v. U.S 168 F. 2d
369 (1918). The grant of certiorari by the Supreme Court was limited
to the question of whether a daughter by adoption is within the
permissible class of beneficiaries under section 602(g) of the National
Service Life Insurance Act of 1940. The Court held (p. 113) that
"The short of the matter is that Congress has not expressed itself
in regard to the question before us. In resolving the conflict of de'Metier of R—, 5 I. & N. Dec. 438 (1953) concluded that the term "sons" or
"daughters" included adopted sous or daughters within the provision of section
203 (a) (4) but that holding, which involved a beneficiary who was 24 years old
at the time of his adoption, is no longer applicable because the present definition
in section 101(b) (1) (E) defines "adopted child" as one adopted while under the
age of 14 years.
2 2 CJS 413.
Madden, 3_ W., Persons and Domestic Relations 551 (1951) .

This section provided that insurance shall be payable only to a widow,
widower, child, parent, brother, or sister of the insured.
5

499

Interim Decision #1331
cisions, we must determine whether the word "brother," as used in
this Federal statute, restricts the policy holder's choice of beneficiaries
to brothers of the blood. We are persuaded by the policy against
drawing such a distinction in the family relationship. Contemporaneous legal treatment of adopted children as though born into the
family is a manifestation of that policy. * * Consequently, we hold
that a brother by adoption is a permissible beneficiary under section
602(g) of the National Service Life Insurance Act of 1910." a
Section 2 of the Act of September 11, 1957, which added subparagraph (B) to the definition of the term "child" in section 101
(b) (1) of the Immigration and Nationality Act placed Congressional
approval on a construction which would adopt the prevailing view
that adoption is usually regarded as creating the same relationship
between the adoptive parent and adopted child as between a, natural
parent and a natural child. Although there has been some holdings
to the contrary, the Supreme Court in the case of Woodward v. U.S.,
341 U.S. 112 (1951) settled the divergence in the lower courts as to
whether a brother or sister by adoption is a "brother" or a "sister"
within the meaning of the term as used in the National Service Life
Insurance Act in the affirmative. In the light of the legislative history
and purpose of the amendatory legislation of the Act of September
11, 1957, we are convinced that there has been enunciated a Congressional p ()Rey aoainst drawing any distinction between an adopted child
or adopted brother and sister and "child" or "brother" and "sister."
We regard Matter of M—, 6 I. & N. Dec. 180, as no longer applicable.
In the instant case there is evidence to establish that the beneficiary,
who was born on January 31, 1949, was adopted either on March 1,
1949, as testified by the petitioner, or on July 19, 1949, as evidenced by
the adoption agreement. In any event the beneficiary appears to
qualify as an adopted child of the same parents of the petitioner and
is considered an adopted brother. As such, he qualifies for eligibility
for a preference quota visa under section 203(a) (4) of the Immigration and Nationality Act. The appeal will be sustained.
ORDER: It is ordered that the appeal be sustained and that the
visa petition be approved for preference quota status under section
203 (a) (4) of the Immigration and Nationality Act on behalf of the
beneficiary.
° Cited with approval in Thomas v. United States, 189 F. 2d 495, 504 (6th Cir.,
{1951) Berrilhitt v. Mvited States, 199 F. 2d 217, 218 (6th Cir., 1952) ; U.S. v.

Rock 200 P. 2d 357, 358 (D.C. Cir., 1952).

500


Interim Decision #18529

Marrer or Oxtvera
Application for Permission to Change Schools
He ‘A-18825700
Decided by District Director August 6, 1965"

A Nonimmigrant stnient who has completed an intensive English course at an
‘Approved fustitution of learning and now wishes to enroll at a commercial
college, which is also an approved ingtitution of learning, for a secretarial
course is granted permission to change institutions since she has a, definite
educational objective; the transferee institution has determined that she is
‘qualified to carry 2 full course ‘of study; and applicant has estavisnea tune
she has sufficient fonds to maintain herself while in the United States.

The applicant, a native and citizen of Peru, born February 6, 1039,
in Lima, arrived in the United States at Los Angeles, California, on
~- April 93, 1964. She was admitted as a visitor for three months —
under soation 101(9.)(15)(R) of the Immigration and Nationality
. Act and, thereafter, granted extensions of stay to January 22, 1965.
‘While in lawful status as o temporary visitor she was accepted for
_ a full-time course of study in English at the University of Miami,
an institution appruved Ly this Service for attondanco by nonimmi-.
grant students. ‘Thereupon, she applied for a change of nonimmi-
grant status from that of a temporary visitor to that of a nonimmi-
grant student under section 101(a) (15) (F) of the Immigration and.
Nationality Act. She was found eligible for the change of status
and her application was granted. on September 1, 1964. In conjunc-
tion with the approval of that application she was granted an ex-
tension of her temporary stay in her newly acquired status until
August 2, 1965. 7
She has completed the intensive English coursé and now wishes to
enroll at the Charron-Williams Commercial College for a secretarial
course. Forms I-20A and 1-539, properly endorsed by the Charron-
Williams Commercial College, have been submitted. The applicant
has established that she is receiving $300’ per month from her
futher. Qke has a definite educational objective and the schon! has
determined that she is qualified to carry a full course of study.

409
Interim Decision #1529 WI

‘Yhe applicant is a bona fide student carrylug w full cuusse uf
study at an institution approved for the attendance of foreign stu-
dents. She has established thet she has sufficient funds to maintain
herself while in tha Tinited States. Therefore, it is concluded that
her application for a change of schools and extension of temporary
stay should be approved. 7

ORDER: It is ordered that the application for change of schools
be approved and an extension of her temporary slay as a student
‘Ba authorized to August 2; 1966. 7 :

410


Interim Decision # 2113

MATTER OF ATHANASOPOULOS

In Section 246 Proceedings \
A-13864002
Decided by Board December 30, 1971
(1) Communications between respondent and his attorney for the purpose of
perpetrating a fraud against the immigration laws are not privileged communications.
(2) A delay of approximately 31/2 years between the time of the Government's first knowledge of respondent's fraudulent marriage and the
initiation of rescission proceedings does not constitute a denial of due
process of law since rescission proceedings are civil in nature and pursuant to section 246(a) of the Immigration and Nationality Act may be
instituted at any time within 5 years after adjustment of status of a person under section 245 of the Act.
(3) Refusal of the special inquiry officer to subpoena certain witnesses and
to provide for the taking of depositions in Greece was not a denial of due
process where the record clearly reveals that the whereabouts of the witnesses in Greece was unknown and the testimony of the other witnesses to
be subpoenaed would be cumulative of competent testimony in the record
on the issue in question.
(4) Where the Government has produced evidence of a clear case of fraud
and of ineligibility for adjustment of status, and the respondent has refused to testify on matters within his personal knowledge and has failed
to rebut the evidence of the Government, rescission of adjustment of status is proper.
ON BEHALF OF RESPONDENT :

ON BEHALF OF SERVICE:

Elmer Fried, Esquire
515 Madison Avenue
New York, New York 10022
(Brief filed)

Irving A. Appleman
Appellate Trial Attorney

The respondent, a native and citizen of Greece, appeals from
an order entered by the special inquiry officer on August 26, 1969
pursuant to the provisions of section 246 of the Immigration and
Nationality Act, 8 U.S.C. 1256. The order rescinds an adjustment
of his status to that of a permanent resident alien under section
245 of the Act, 8 U.S.C. 1255. Exceptions have been taken to the

827

Interim Decision #2113
finding that the respondent was not in fact eligible for the adjustment of status accorded him.
The respondent originally entered the United States as a nonimmigrant professional soccer player (H-2) through the port of
New York on August 9, 1963. He married Marta Pinela, a citizen
of the United States, in Jamaica, Queens County, New York on
May 12, 1964. A petition to accord the respondent immediate relative status was executed by his citizen wife on May 13, 1964 and
approved by the Service on July 2, 1964. The respondent's nonimmigrant status was adjusted to that of a permanent resident
alien on August 27, 1964, based upon the approved visa petition.
The respondent's marriage to Marta Pinela was terminated by a
divorce granted in Mexico on June 22, 1968.
The Notice of Intention to Rescind, served upon the respondent
on June 10, 1969, charges that he was not entitled to immediate
relative status as the spouse of a United States citizen and was
chargeable to the nonpreference portion of the Greek quota which
was not then available because his marriage to Marta Pinela
"was a sham marriage entered into solely for the purpose of permitting [him] to adjust [his] status to that of a lawful permanent resident of the United States" (Ex. 1).
The respondent, on advice of counsel, declined to testify during
the hearing beyond stating his name. Counsel acknowledged that
the respondent is an alien and that his status was adjusted to
that of a permanent resident as alleged in the Notice of Intention
to Rescind.
The Government's case is built primarily upon the testimony of
the respondent's former wife, Marta Pinela, and one Angel Luis
Collazo, who admitted that he arranged the wedding between the
respondent and Marta Pinela (p. 71). Supporting documentary
evidence entered in the record consists of a record of the respondent's marriage to Marta Pinela on May 12, 1964, the visa petition
(Form 1-130) executed by the respondent's former wife and received by the Service on May 21, 1964, the memorandum of the
creation of a record of lawful permanent residence (Form 1-181)
dated August 27, 1964,,and the application for adjustment of status (Form 1-485) executed by the respondent on June 5, 1964
(Exs. 2, 3, 4 and 5).
The testimony of the respondent's former wife is fully set
forth in the opinion of the special inquiry officer and is incorporated herein by reference. A summary of her testimony is as follows : Her marriage to the respondent was arranged solely for immigration purposes by one Angelo Collazo, who informed her that
828

Interim Decision #2113
she would receive $500 as a participant and that there would be
no marital obligation on her part to live with the respondent. She
further testified that she never lived with the respondent as man
and wife. She admitted that the respondent asked her to live with
him "two or three times" but she refused because "that wasn't
the plan that was offered to me. That isn't what I accepted. Those
were not the conditions" (p. 44).
The respondent's wife was questioned as to whether the respondent "ever tried to have sexual relations with [her]." She replied, "He never got fresh with me." She was then questioned as
to whether she considered "it getting fresh" if her husband
wanted to have sexual relations with her. She replied, "I didn't
consider him my husband, otherwise I would have had sexual relations with him" (p. 44).
The witness, Angel Luis Collazo, identified the respondent's
former wife as the person for whom he arranged a marriage in
1964 (p. 71). This witness testified that he arranged for the respondent and his former wife to meet at a restaurant "in downtown Manhattan"; that at this meeting in the presence of the respondent, the conversation included a discussion of a monetary
consideration for the marriage and an agreement that there
would be no cohabitation (p. 74). He further testified that he was
present at the marriage ceremony; that immediately following the
marriage, they went to the lawyer's office where papers were
signed ; that thereafter the respondent's wife was paid $500 and
"she gave me $100 back" (pp. 76-78).
The respondent, on advice of counsel at the beginning of the
hearing, refused to testify on the ground that he was not required to establish the Government's case (pp. 16 and 17). At the
close of the hearing after the Government had rested its case, he
also claimed the privilege against self-incrimination under the
Fifth Amendment (pp. 188, 189). The special inquiry officer
states at page 7 in her opinion "... the logical conclusion to be
drawn from the respondent's silence based on the contention that
to testify might incriminate him is that the testimony, if given,
would be adverse to his interest," citing Matter of 0—, 6 I. & N.
Dec. 246 (BIA, 1954).
It is the contention of counsel that the special inquiry officer
erred in drawing an adverse inference from the respondent's refusal to testify based on the Fifth Amendment. He claims that
the privilege was fairly asserted because the questions of the trial
attorney implied that the respondent was suspected of at least a
violation of 18 U.S.C. 371, which defines a conspiracy to commit
829

Interim Decision #2113
any offense or to defraud the United States, or any agency
thereof in any manner or for any reason. Counsel cites several
cases decided by the Supreme Court 1 in support of his position.
We agree with counsel that the drawing of adverse inferences
from a claim of Fifth Amendment privilege has been circumscribed by recent decisions of the Supreme Court, supra, footnote
1. We need not reach the issue of whether, on the peculiar facts
of this case, the special inquiry officer erred in drawing an adverse inference from the respondent's refusal to testify. Here we
have direct and uncontroverted evidence that the respondent's
marriage to a citizen of the United States was a sham. The respondent's former wife testified that she never lived with the respondent in a marital relationship and that her marriage was arranged for immigration purposes. The testimony of the arranger,
Collazo, is to the same effect. Their testimony is credible and
remains unrebutted by the respondent. We conclude, without relying on the respondent's failure to testify, that the essential facts
of a sham marriage are clearly, convincingly and unequivocally
established quite apart from any inference drawn by the special
inquiry officer. Cf. Vlisidis v. Holland, 245 F.2d 812, 814 (3 Cir.,
1957). Since we reach this conclusion separate and apart from
any adverse inference drawn by the special inquiry officer, we
need not deal with counsel's objections.
Counsel challenges the special inquiry officer's ruling that the
information furnished to the Immigration Service by the respondent's former attorney was not a violation of the attorneyclient privilege and that the evidence derived from that information is therefore admissible in evidence. The special inquiry
officer stated in her opinion that the attorney-client privilege does
not extend to communications between an attorney and client
where the client's purpose is the furtherance of a future intended
crime or fraud.
The facts concerning this phase of the case have been fully discussed in the opinion of the special inquiry officer and the brief
submitted by counsel. Briefly, they establish that one Peter K.
Timon, whose signature appears as a notary public on the petition (Form 1-130, Ex. 3) submitted by the respondent's former
wife, appeared voluntarily in the office of the Immigration Service at New York on January 4, 1966 and on this occasion surrendered voluntarily a list of his immigration clients. Mr. Timon
1 Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106 (1965) ; Spevack v.
Klein, 385 U.S. 511, 17 L. Ed. 574 (1967) ; Gastelum-Quinones v. Kennedy,

374 U.S. 469, 10 L. Ed. 2d 1013 (1963).

830

Interim Decision #2113
again appeared voluntarily in the Immigration office on July 13,
1966, and surrendered voluntarily some 16 powers of attorney including a power of attorney executed by the respondent's former
wife (pp. 124, 163, 172 and Exs. 2 and 3 for identification).
There is evidence of record that the powers of attorney were executed by the respective petitioning wives for the purpose of eliminating the necessity of contacting the "immigration wife" when
the time arrived for obtaining an uncontested Mexican divorce (p.
140), There is a statement on Exhibit 4 for identification that
most of the cases were known to the Government prior to the
submission of the list by Attorney Timon.
We have carefully considered counsel's contention that the evidence upon which this proceeding is based is tainted and may not
be used because it is a violation of the attorney-client privilege
and the Fourth Amendment prohibition against illegal search and
seizure. There is evidence of record that Attorney Timon was in
possession of a power of attorney which was signed by the respondent's former wife in his office at the time she signed the
visa petition submitted by him in the respondent's case. When
this evidence is considered with the testimony of the two immigration officers who were concerned with the investigation that
preceded the institution of rescission proceedings against the respondent, we are convinced that Attorney Timon knew or should
have known that his services in behalf of the respondent were for
the purpose of perpetrating a fraud against the immigration
laws. The Supreme Court has said that, "A client who consults an
attorney for advice that will serve him in the commission of a
fraud will have no help from the law," Clark v. United States,
289 U.S. 1, 15, 77 L. Ed. 993, 1000 (1933).
The test for the loss of the attorney-client privilege was stated
by the Court in Clark, supra, 289 U.S. 15, 77 L. Ed. 1000, as follows:
To drive the privilege away there must be "something to give color to the
charge," there must be "prima facie evidence that has some foundation in
fact". ... When that evidence is supplied, the seal of secrecy is broken.

We are satisfied that the evidence on this issue meets the aforestated test. We find no error in the special inquiry officer's ruling
that the communications between the respondent and his attorney
are not protected by the attorney-client privilege under the circumstances presented by this case.
Counsel asserts that the respondent was prejudiced and denied
due process of law because of the unreasonable delay between the
Government's first knowledge of the alleged fraudulent marriage

831

Interim Decision #2113
and its action in starting these proceedings. Counsel asserts that
the Government learned from Attorney Timon on January 4,
1966 that the respondent might have obtained his permanent residence by a sham marriage but took no action until the Notice to
Rescind was mailed to the respondent on June 10, 1969. It is the
position of counsel that during this delay of nearly three and
one-half years the memories of witnesses had faded, circumstances had changed and some witnesses were unavailable.
The Sixth Amendment provides in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial." This is a civil proceeding brought under section 246 (a) of
the Immigration and Nationality Act. Under this statute the Attorney General may institute rescission proceedings "at any time
within five years after the status of a person has been otherwise
adjusted under the provisions of section 245 ... of this Act ...."
(Emphasis supplied.)
We find no support in the cases cited by counsel in his brief 2
for his argument that the respondent has been denied his constitutional rights by reason of the delay in the initiation of rescission proceedings. Three of the cited cases are concerned with appeals from convictions for violations of the federal narcotic laws
and are criminal proceedings as distinguished from civil proceedings.
The case of Pierno v. INS, supra, footnote 2, is not relevant to
the case before us. The Pierno case concerns a finding of statutory ineligibility for section 245 relief based solely upon an automatic revocation of visa approval pursuant to 8 CFR 205.1 (a) (2)
because of the intervening death of the petitioning citizen spouse.
The Service argued that the automatic revocation of visa approval pursuant to the regulations precluded the grant of relief
under section 245.
The court held that since the authority for the automatic revocation regulation was derived from section 205 of the Act, a permissive statute granting the Attorney General discretion in determining what shall constitute good and sufficient cause for
revocation, there could be no "wooden application of rules for automatic revocation." The court in its review of the evidence noted
that the petitioning spouse had died during the eight months'
stay of the section 245 proceeding by the Service while awaiting
final disposition of an annulment proceeding brought by the peti2 Nickens v. United States, 323 F.2d 808 (D.C. Cir., 1963) ; Ross v. United
States, 349 F.2d 210 (D.C. Cir., 1965) ; United States v. Sanchez, 361 F.2d
824 (2 Cir., 1967) ; Pierno v. INS, 397 F.2d 949 (2 Cir., 1968).

832

Interim Decision #2113

tioner's son. The court by way of dictum said at page 951 that
the beneficiary ". . . need not be penalized as a result of events occurring during an unusually long investigation which are totally
unrelated to that investigation." (Emphasis supplied.) The record
establishes to our satisfaction that the events which occurred during the three and one-half year period referred to by counsel
were directly related to the investigation of the respondent's eligibility for adjustment of status under section 245 of the Act. Cf.
U.S. ex rel. Circella v. Sahli, 216 F.2d 33, 39 (7 Cir., 1954), cert.
denied 348 U.S. 964.
Counsel contends that the respondent was deined due process
of law by reason of the special inquiry officer's refusal to subpoena certain witnesses requested by the respondent and to provide for the taking of depositions in Greece. Counsel argues that
the refusals were in all cases not based on considerations as to
whether the testimony was likely to be relevant, material or necessary, but on whether the witnesses were immediately available
in order to meet the deadline for the running of the\ five-year
statute of limitation provided by section 246 (a) of the Act.
8 CFR 287.4 (a) (2) provides the special inquiry officer with
discretion "... upon application of ... the alien ... [to] ... issue
subpoenas requiring the attendance of witnesses or for the production of ... other documentary evidence, or both." The regulation also provides that the party applying for a subpoena shall be
required, "as a condition precedent to its issuance, to state in
writing or at the proceeding what he expects to prove by such
witnesses or documentary evidence, and to show affirmatively
that he has made diligent, effort without success to produce the
same. Upon being satisfied that a witness will not appear and testify or produce documentary evidence and that his evidence is essential, the ... special inquiry officer shall issue a subpoena."
(Emphasis supplied.)
We have carefully reviewed the record of counsel's requests for
the production of witnesses and the taking of depositions in
Greece. Following a statement by the trial attorney that "The
government rests" (p. 90), counsel for the respondent stated for
the record that he would "like the production of certain witnesses, some under the control of the government, some not" (p.
94). Among the witnesses named by counsel are Attorney Peter
Timon, the respondent's former counsel, an Assistant United
States Attorney alleged to have been in charge of prosecution of
this case, each investigator who investigated the case, and a Mr.
Kaparonis who allegedly participated in the "conversations, acts

833

Interim Decision #2113
and agreements" when the marriage was arranged (p. 94). During the discussion which followed counsel's request, we find no
statement on the part of counsel as to what he expects to prove
by the production of the witnesses, nor is there any affirmative
showing on the part of counsel that prior to this request he had
made a diligent effort without success to produce the witnesses
(pp. 95-101).
During the hearing of August 19, 1969, counsel requested the
issuance of a subpoena to compel the appearance of Attorney
Timon, since he assumed that "Mr. Timon has no intention of voluntarily appearing" pursuant to counsel's request forwarded by
mail on August 4, 1969 (pp. 105-106). Counsel at this time also
requested the taking of depositions from two witnesses who were
overseas and whose testimony he considered crucial for the respondent's defense (p. 106) . Concerning the subpoena for Attorney Timon, the special inquiry officer referred to an "off the record discussion" at counsel's request during the hearing of August
1, 1969. The special inquiry officer stated for the record that
pursuant to this discussion, it was her understanding that counsel
was interested in the testimony of Attorney Timon in order to determine whether it was from Mr. Tirnon or from his records
"that the Service investigation in this matter resulted" (p. 108).
We are satisfied after thoroughly considering the exchange between counsel and the trial attorney (pp. 109-113), and the testimony of the supervisory inspector of the Frauds Section in the
New York office of the Immigration Service (pp. 139-185) that
the respondent's case had been identified from Service records
prior to the receipt by the Service of a record of Mr. Timon's
clients (pp. 141, 150). We find no error on the part of the special
inquiry officer in refusing counsel's request to adjourn the hearing for the purpose of having Attorney Timon and the two investigators appear as witnesses {pp. 133, 134, 135) since there
was competent evidence on this issue in the record.
Counsel during the hearing of August 19, 1969 requested an
adjournment in order that he might fly to Greece for the purpose
of taking depositions from the respondent's uncle and another
man named "Jimmy [Kaparonis]." Counsel stated that the two
witnesses "could contradict the Government testimony" since they
"were present at the time of the alleged conversations of these
Government witnesses" (p. 135). Counsel did not specify what
"Government testimony" these witnesses would contradict. He
made no attempt to show affirmatively that he had made diligent
effort without success to produce the witnesses. Counsel takes the

834

Interim Decision #2113
position that the Government should assist in locating the witnesses (p. 107).
An alien in a rescission proceeding must be afforded due process, including a fair hearing. We find no substance to counsel's
claim that the special inquiry officer erred in denying his request
to subpoena certain witnesses and to take depositions in Greece.
The record clearly reveals that the whereabouts of the two witnesses in Greece was unknown and that the testimony of Attorney Timon and the two investigators who were not available
would be cumulative of testimony proffered by the witnesses
Whalen and Spivack, both employees of the Immigration Service.
Failure to produce for crossexamination witnesses who cannot be
found or whose presence cannot be procured does not make this
proceeding unfair, Navarrette-Navarrette v. Landon, 223 F.2d
234, 237 (9 Cir., 1955), cert. denied 351 U.S. 911 (1956) ; U.S. ex
rel. Impastato v. O'Rourke, 211 F.2d 609, 611 (8 Cir., 1954), cert.
denied 348 U.S. 827 (1954). There is no showing that the hearing
was unfair, and we find no error.
Counsel contends that the respondent is immune from rescission proceedings by reason of section 241 (f) of the Immigration
and Nationality Act since he is now married to and living with a
citizen of the United States. Section 241 (f) provides a waiver of
deportability in the case of an alien who was excludable at the
time of entry as one who had procured a visa or entry into the
United States by fraud or misrepresentation if such alien is the
spouse, parent or child of a United States citizen or an alien lawfully admitted for permanent residence. Counsel's argument is
based on the premise that Congress did not intend to have its
grant of immunity under section 241 (f) depend on which administrative procedure, i.e., a section 245 adjustment as opposed to
an entry with an immigration visa, was used to acquire the residence status that Congress intended to protect. Counsel cites no
authority for his position.
We have considered the question of whether section 241 (f) is
available in rescission proceedings. We held in Matter of Alemis,
12 I. & N. Dec. 456 (BIA, 1967), that section 241 (f) by its very
terms and the Supreme Court's decision in INS v. Eyrico, 385
U.S. 214 (1966), is limited solely to a deportation proceeding and
is not applicable to a rescission proceeding under section 246 of
the Act. The proceeding before us is not a deportation proceeding. See also, Ferrante v. INS, 399 F.2d 98 at pp. 104, 105; Fojon-Casal v. Attorney General, Civ. No. 2063-68 (unreported

835

Interim Decision #2113
D.C., D.C.); and Matter of Vilanova-Gonzalez, Interim Decision
No. 2008 (BIA, 1969).
Counsel contends that the record does not establish by clear,
convincing and unequivocal evidence that the respondent's marriage to Marta Pinela was a sham, entered into solely for the purpose of permitting him to adjust his immigration status to that
of a lawful permanent resident alien. Counsel asserts that the
Government never established that the respondent was a knowing
participant in the marriage fraud. He maintains that without
such proof the Government has failed to establish a prima facie
case and for this reason the respondent's silence may not be used
to bolster the insufficiency of the Government evidence. Counsel
cites the case of Gastellum-Quinones v. Kennedy, 374 U.S. 469,
479 (1963), in support of his argument.
We find no substance to counsel's argument that the Government has failed to establish a prima facie case because there is no
showing that the respondent was a knowing participant in the
marriage fraud. The testimony of the respondent's former wife
and the arranger, Collazo, that the respondent was present at the
time the sham marriage was arranged is uncontroverted. The arranger, Collazo, testified that the respondent's uncle spoke to the
respondent in "Greek" during the meeting at which the marriage
was arranged (p. 88). There is no reason why we should not conclude that the uncle truthfully informed the respondent in Greek
just what was taking place, i.e., that a sham marriage was being
arranged for him with the woman who was present, in order that
his immigration status could be adjusted. We are satisfied from
the testimony of the arranger concerning events which followed
the first meeting between the respondent and his former wife
that he (respondent) knew full well that the marriage was solely
for immigration purposes (pp. 75, 77, 79-81). For example, the
respondent permitted the arranger, Collazo, to place around his
apartment women's clothing furnished by his uncle for the purpose of making it appear that his wife was residing there (pp.
78, 79). It is inconceivable under the circumstances that the respondent could not have known what was going on. Accordingly,
the Supreme Court's decision in Gsatelum-Quinones, supra, has
no application to the respondent's case.
It is the function of the special inquiry officer and on appeal
the function of this Board to make an evaluation and to reach a
determination as to whether the evidence is of sufficient quality
and substantiality to support the rationality of the order of res-

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Interim Decision #2113
cission. Cf. D'Andrea v. INS, 335 F.2d 377 (6 Cir., 1964), cert.
denied 379 U.S. 999 (1965) ; Matter of Lugo-Guadiana, 12 I. & N.
Dec. 726 (BIA, 1968). The respondent in this proceeding was not
deprived of an opportunity to produce evidence in refutation of
the testimony of his former wife and the witness, Collazo. Cf.
Sercerchi v. Ward, 27 F. Supp. 437, 440 (D. Mass., 1939) and
cases cited. Their unrefuted testimony is candid, unequivocal and
credible.
The good faith of the marital relationship is the very essence
of this rescission proceeding and by its very nature is within the
personal knowledge of the respondent. His failure to rebut the
testimony of the Government witnesses does not diminish its
quality when, as here, the case is clear cut. We conclude that the
special inquiry officer has made a "fair assessment of the record."
Cf. Peurifoy v. Commissioner, 358 U.S. 59, 61 (per curiam 1958).
There is clear, unequivocal and convincing evidence that the respondent was not in fact eligible for adjustment of status under
section 245 of the Immigration and Nationality Act, as amended.
We affirm the order entered by the special inquiry officer and will
dismiss the appeal.
ORDER : It is ordered that the appeal be and the same is
hereby dismissed.

837