Interim Decision #1439

MATPER or AincsArr No. "N-2476-1.7"
In Fine Proceedings
LOS-10/2.121
Decided by Board March .18,1965
Since remission In full of $500 penalty imposed under section 239, Immigration
and Nationality Act, is not limited to emergent circumstances of 8 CFR
239.2(d), and since section 239 specuically provides that the penalty incurred
for violation of any regulation made thereunder may be remitted or mitigated, penalty of $500 incurred under section 239 of the Act for failure of
pilot to present himself and passenger for inspection is mitigated to extent
of a remaining 4125 penalty when both are United States citizens returning
from a bona fide business trip in Mexico, bringing no merchandise, and
evidence establishes violation was unintentional and pilot acted in good
faith throughout In as: CESSNA AIRCRAFT, Model 172, No. "N-2478-1r which arrived at
Lindbergh Airfield, San Diego, California, from Mexico on September 11, 1983. Persons involved: James A Ellis, Pilot; and John
Thomsen, Esquire, passenger,

Thisappeal is directed to an administrative penalty of $400 ($500
mitigated. to the extent of $100), which, the District Director has
ordered unposed on the aircraft's pilot for "failure to present the

aircraft, yourself, and one passenger for bdspection by an immigration officer as required by 8 CPR 239.2(c)."
This flight'involved the return portion of a. Mexican business trip
by the two persons named above, both United States citizens, who
brought back no merchandise. At the time of landing, as had been
the case during the entire return trip from Mexico, the pilot and
his passenger were engrossed in a discussion of the business problem
which had caused them to make the flight. They also had not
eaten for several hours and were hungry. Accordingly, the pilot
forgot about the inspection requirements, taxied the aircraft to that
part of the airfield used by the company from whom be had hired
the plane, parked it there, and proceeded to a restaurant in San
Diego with his passenger to continue their business discussion..
While dining, the pilot remembered about inspection and, with his
passenger, promptly returned to the airport. He reported to the
73

Interim Decision *1439
Government officer on duty, an employee of the Department of
Agriculture, who notified an immigration officer. The latter requested the pilot to report to him the following morning, which he
did,. accompanied by his passenger., an attorney in San Diego.

The statute authorizes the Attorney General to promulgate regulations setting forth, inter cilia, reasonable requirements for the inspection of arriving aircraft, and passengers and/or crew thereof.
Pursuant to this statutory authority, the Attorney General has promulgated .8 CFR 239.2(c), which has the force and effect of law.
In substance, that provision of the regulations prohibits the discharge or departure of any passenger or crewman from the aircraft
without permission from an immigration officer, under pain of a
$500 penalty. :The foregoing facts of record establish that we are confronted
here with precisely such a situation as is contemplated by the regulation. Accordingly, liability to the fine has been incurred. This is

not seriously challenged.
The District Diiector has ruled that remission of the fine provided
for in section 239 of the statute is permissible only "if the violation
was occasioned by emergency or forced landing of the aircraft." In
other words, the District Director interprets the statute as permitting
the fine to be forgiven in full only where a violation of 8 CFR239.2(d) is involved. This, however, is not correct.
Section 239 contains the specific provision that the $500 penalty
incurred for a violation of any regulation made thereunder may be
remitted, in accordance with such proceedings as the Attorney General shall prescribe. Clearly; therefore; the District Director's ruling
has the effect of having the regulation.exceed the scope of its statutory authority. To this extent, therefore, his derision is overruled.
Despite the fact that such action is permissible here, we do not
think that remission of the fine is merited. ' The pilot is admittedly
experienced in international flights such as this one. We' fhinir a
minimum penalty should be permitted to stand to keep him mindful
of the inspection requirements in the future.
The Service report of investigation sets forth that the employee
of the Department of Agriculture on duty at the airpiiit telephonically informed an immigration officer of the aircraft's arrival and
the fact that it had not been inspected. It also reflects that the
immigration officer to whom this was made known then called the

pilot's wife and requested her to have her husband report to the
Government office the following morning (which he did). It then
intimates that the Agriculture,Department employee was under the
impression that the pilot returned for inspection that afternoon as
74

Interim Decision #1439
the result of a telephone conversation with his wife putting him on
notice of the fact that the immigration officer was looking for him.
The testimony of the pilot and his passenger, however, negatives this
adverse inference. The District Director appears to have accepted
their statements in this respect. We agree with said official that the
evidence of record shows that the pilot returned to report for inspection of his own volition.
The District Director has stressed that the pilot made a statement
that he had not flown a private aircraft into the United States from
a foreign country within the past five years whereas, in fact, aircraft arrival records at the airport involved reflect an arrival by the
pilot from Mexico on August 15, 1963. The pilot, on the other hand,
insists that he made no such statement and that the immigration
officer who attributed it to him confused his statement with that of
his passenger who, according to the pilot, stated to the immigration
officer that he was not mindful of the requirement of reporting because he had not used a private aircraft in the past five years, relying, instead, on commercial aircraft. The passenger in question, an
attorney, has corroborated the pilot's claims in this respect. Accordingly, and in view of the following considerations, we discount this
as an adverse factor.
The pilot and his passenger are both citizens of the United States.
They brought back no merchandise from Mexico with them. Their
trip was for bona fide business purposes. We are satisfied that the
evidence of record establishes . that the violation was unintentional

on the pilot's part. We are also convinced that he became aware of,
this violation without outside influence, and that he thereafter made
every reasonable effort to comply with the law and regulations,
to wit: he returned to the airport the same afternoon to report; and
he complied with the immigration officer's request to report again the
following morning. We feel that the evidence shows that the operator of the aircraft was acting in good faith . throughout. The operator apparently has no adverse immigration record despite several
such flights in the past. It appears that the parties involved are
reputable businessmen respected in their communities. The pilot was
acting in that capacity as a matter of convenience for his passenger,
and not for any immediate financial gain for his services as such.
Under these circumstances, we think the pentilty, should be reduced
to the bare minimum.
ORDER: It is ordered that the District Director's decision of
January 5, 1965, be modified to ptovide for $375 additional mitigation, and that as so modified the decision of said official be and the
same is hereby affirmed. The penalty permitted to stand is $25.
75


Interim Decision #2827

MATTER OF GENERAL ATOMIC COMPANY

In Visa Petition Proceedings
SND-N-1730
Decided by Commissioner August 21, 1980
(1) A person who is qualified as a member of the professions qualifies as a person "of

distinguished merit and ability" as that term is used in section 101(a)(15)(H)(i) of the
Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(H)(i).
(2) Where a beneficiary is a member of the profession of civil engineering, the services
are to be performed for a temporary - period of time, and the job offered requires the
services of a professional engineer, whether or not the henefiriary is preeminent or
renown in engineering is not in question. See Matter of Essex Cryogenics Industries,
Inc., 14 I&N Dee. 196 (D.A.C. 1972).

ON BEHALF OF PETITIONER: Ronna Lee Beck, Esquire

Rogovin, Stern & Hugh
1730 Rhode Island Avenue, N.W.
Washington, D.C. 20036

The instant petition is on certification at my direction for review of
the Regional Commissioner's decision. The District Director denied
the petition and certified his decision to the Regional Commissioner.
The Regional Commissioner, in agreement with the decision of the
District Director, concluded that the attainment of an undergraduate
degree in and of itself does not automatically establish an alien to be a

person of distinguished merit and ability. The Regional Commissioner
concluded further that Matter of Essex Cryogenics, Industries, Inc., 14
I&N Dee. 196 (D_A_C_ 1972), found that an alien professional is qualified

as an "H-1" only if the alien is distinguished or preeminent in his
profession.
The petitioner is offering the beneficiary employment as a civil
engineer specifically involved in stress analysis. The beneficiary has
obtained a Bachelor of Science degree in civil engineering from a
United States university and has completed 12 months of practical
training in the employ of the petitioner. During her training with the

petitioner the beneficial'y is stated to have acquired specialized knowledge uncommon to her profession. This knowledge is said to be pos532

Interim Decision #2827
sessed by only twenty-five to thirty people within the United States.
The Regional Commissioner questioned her acquisition of this knowledge as it is not offered in United States' learning institutions and
allegedly was so quickly acquired through her on-the-job experience.
Matter of Essex Cryogenics Industries, Inc.,14 I&N Dec. 196 (D.A.C.
1972), states:
The Service has long held that a person who is qualified as a member of the professions
qualifies as a person "of distinguished merit and ability" as that term is used in
section 101(a)(15)(H)(i), supra, [sic]. If additionally, he is to temporarily perform
specified services which require his professional abilities, he is qualified for "H-1"
classification.

The requirements contained in Essex, supra, do not include the
possession of an advanced degree or renown in the profession.
Section 101(a)(32) of the Immigration and Nationality Act, 8 U.S.C.
1101(a)(32), states that "[t]he term "profession" shall include but not
be limited to architects, [and] engineers ..." This definition, combined
with the holding in Essex, lead to the obvious conclusion that where an
alien will perform professional services as an engineer and is qualified
to be an engineer that alien is within the meaning of "distinguished
merit and ability."
The attainment of an undergraduate degree is a material requisite
to qualifying only where such degree is a minimum and realistic
prerequisite for entry into a profession. Matter of Shin, 11 I&N Dec.
.686 (D.D. 1966).
The instant beneficiary is a member of the profession of civil engineering. Her services are to be performed for a temporary period of
time. The job offered requires the services of a professional engineer.
Whether or not the beneficiary is preeminent or renown in engineering
is not in question. Accordingly, the following order will be entered.
ORDER• The Regional Commissioner's decision of June 20, 1980,
be withdrawn.

FURTHER ORDER, The petition be approved.


MATTER OF T

In DEPORTATION Proceedings
A-5592351
Decided by Board January 14, 1960
Evidence—Hospital records containing opinions, conclusions and hourly notes
made by hospital personnel are admissible.

Hospital records reflecting respondent's addiction to narcotics are admissible
in evidence in immigration proceedings notwithstanding that they contain
opinions, conclusions, and hourly floor notes made by nurses and other hospital personnel on duty. The weight to be assigned such evidence is for

determination by the trier of the facts.
CHARGE

Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11)1—Narcotic
drug addict.
BEFORE THE BOARD

Discussion : Respondent is 58 years old, unmarried, male, a native
and national of Italy, who first entered the United States at New
York February 22, 1905. The special inquiry officer found respondent deportable on the charge set forth above and ordered him deported from the United States. Respondent appeals to this Board.
Respondent claims to have believed that he had United States
citizenship through his father. He stated that his father told him

that he, the father, was a citizen of the United States, and he believes
his father voted in the United States. He knows, however, that one
of his sisters was naturalized a United States citizen on her own
initiative. Two of his sisters returned to Italy and another lives in
Chicago, and respondent does not know whether the latter is a citizen. The conclusion of the special inquiry officer is that respondent
is an alien, and the record supports this conclusion. There is no
record of naturalization of respondent nor of his father. Exhibit 4
is a "Certificate of Non-Existence of Record" which is evidence that
there is no record or entry regarding the naturalization as a citizen
of the United States of respondent's father in any of the names by
which he was known. For further discussion of these certificates
, 5 I. & N. Dec. 370, at page 372 (B.I.A., Aug. 3,
see Matter of C

1953). Respondent testified that his father returned to Italy follow523

ing the death of respondent's mother. Respondent's fatner
in Italy in 1913 or 1914, and he and his second wife lived in the
United States a "couple of years." They returned to Italy in 1921,
where respondent's father remained until his death in 1932. Respondent testified that he registered as an alien in 1940 under the
Alien Registration Act, but that he has not filed an address report
card since that time.. The record contains no evidence that respondent is a United States citizen. He has admitted alienage on several
occasions. It is our conclusion that respondent's, alienage is established.
The special inquiry officer finds that the record establishes that
since his entry, and subsequent to December 24, 1952, respondent has
b-en a narcotic drug addict, particularly at Fort Worth, Texas, in
1953, and in Omaha, Nebraska, in 1955. The evidence of record is
sufficient to sustain these findings.
There is some controversy in the hearing record between counsel
and the special inquiry officer and the examining officer as to the
extent to which the hospital records relating to respondent may be
considered as evidence. On May 4, 1959, at Butte, Montana, respondent signed an authorization permitting Creighton Memorial
St. Joseph's Hospital at Omaha, Nebraska, and the United States
Public Health Service Hospital at Fort Worth, Texas, to release to
the, United States Immigration and Naturalization Service any records in their possession relating to him. Certified copies of the
hospital records were. obtained and constitute a portion of the, record
now before us. The detailed hospital record constituting exhibit 7
was objected to by counsel on the grounds that it consists chiefly of
hearsay and contains material not relevant to the issues in this case.
It was the conclusion of the special inquiry officer that, with the
exception of the covering sheet (containing summary, provisional
diagnosis and final diagnosis), the record from Creighton Memorial
St. Joseph's Hospital, exhibit 7, should not be considered part of
the record, inasmuch as it contains opinions, conclusions, hourly flow
notes made by nurses and other hospital personnel on duty.
The hospital records were made at the time respondent was
patient and constitute the admission and discharge notes of doctor
who prescribed treatment for him. The records made at. those tim(
are more apt to be accurate than respondent's present recolleetic
with regard to the amount of narcotics he was using 4 and 6 yea
ago, the frequency with which he was taking drugs, and the leng
of time he had been administering narcotics to himself.
28 U.S.C. 1732 provides for the admissibility in any court of 1
United States of memoranda and records kept in the regular con
of business. It has been widely held that under this et.ature hosp
records are admissible. in state and federal courts, at least insc
524

as they relate to medical and physical conditions of patients. See
annotations to this section, also Supplement, 28 U.S.C. 1732. One
case holds that a portion of the records containing the patient's
recital as to his past life is objectionable (England v. United States,
174 F.2d 406 (C.A. 5, 1949) ). The similar recital in the present
record, contained in exhibit 7, was excluded by the special inquiry
officer. If admissible in courts of law, hospital records are certainly
admissible in administrative proceedings such as this. The certification of the custodian of the records at Creighton Memorial St..
Joseph's Hospital, Omaha, Nebraska, that the attached photostatic

copies are true and correct copies of the official records of that. institution raises them above the level of hearsay. Exhibit 7 is entitled
at least to he considered as evidence.. The weight to be assigned
these. records is for the determination of the trier of the. facts.
The same rule applies to the records of the United States Public
Health Service Hospital at Fort Worth, Texas. It would be preferable if the certification as to their accuracy had been made by the
custodian of the records at the hospital, rather than by an investigator for the Immigration Service. However, in view of 28 U.S.C.
1732 and, even more, 28 U.S.C. 1733 (relating to records kept by
government agencies) this flaw is certainly not fatal.
These hospital records are of much greater persuasion than respondent's present conclusions as to whether or not he was an
"addict " at any particular time. Respondent has freely admitted
addiction in his preliminary statements as well as in the course of
.

the hearing.

In several cases since the passage of the 1952 act we have relied
upon the statutory definition of narcotic "addict" quoted by the special inquiry officer (Matter of K C B , 6 I. & N. Dec. 374
, A-3409248,
(B.I.A., Nov. 23, 1954), and Matter of F S C
Int. Dec. No. 948 (B.I.A., Aug. 11, 1058)). 42 I•S.C.A 201(k)
defines "narcotic drug addict" as "any person who habitually uses
any habit-forming narcotic drugs so as to endanger the public morals,
health, safety, or welfare, or who is or has been so far addicted to
the. use of such habit-forming narcotic drugs as to have lost the
power of self-control with reference to his addiction."
It is our conclusion that the record establishes that respondent
has been a drug addict. within the past 7 years on several occasions,
and as such is deportable on the charge stated in the order to show
cause.
Respondent is not. eligible for any form of relief from deportation
under the present law. We recognize that he has been in the United

States since he was 7 years of age, that he knows nothing about his
native land, and that deportation under these circumstances constitutes a great hardship. Suspension of deportation under section
595

244(a) (5) is not available to respondent, because he must be able
to establish physical presence in the United States for a continuous
period of not less than 10 years following the commission of the act
constituting a ground for deportation, and prove that during all of
that time he has been a person of good moral character. He cannot
establish that 10 years have passed since his last period of addiction,
because his last hospitalization began and ended in December 1955.
Respondent is not eligible even for voluntary departure, because
section 244(e) of the Immigration and Nationality. Act provides that
voluntary departure is available to aliens under deportation proceedings, other than those within certain classes, and one of the excepted classes is an alien within the provisions of section 241(a) (11).
'Therefore, we have no choice but to affirm the special inquiry officer's order of deportation and dismiss the appeal.
Order: It is ordered that the appeal be and is hereby dismissed

526


Interim Decision #1251

MATTER OF TZIMAS

In DEPORTATION Proceedings
A-15817480
Decided by Board September 10,1962
Respondent, who upon arrival in the United States was destined to join a vessel
as a crewman, is ineligible for adjustment of his status under section 245 of
the Immigration and Nationality Act, as amended (8 OEM 245.1), despite'his
admission as an alien in transit under section 101(a) (15) (0) of that Act.
CHARGE :

Order: Act of 1952—Section 241(a) (2) [8 U.S.O. 1251(a) (2)1—Remained
longer.

This is an appeal from the order of the special inquiry officer finding
respondent deportable on the ground stated above and denying his
application for adjustment of status under section 245 of the Immigration and Nationality Act. Voluntary departure was granted. The
appeal will be dismissed.
No issue is taken with the finding of deportability. The special
inquiry officer found respondent ineligible for adjustment of status
because of his belief that respondent came within the terms of a regulation which states that an alien crewman or an alien coming to the

United States to serve on a vessel cannot qualify for the relief.
Counsel contends that the regulation is invalid for it enlarges the
classes of persons who cannot obtain relief under the express terms of
the statute; and he contends that the regulation does not apply in
any event because respondent was not admitted to the United States
as a crewman or alien destined to join a vessel, but was admitted in
transit.
The respondent is a 25-year-old married male, a native and citizen
of Greece, who was admitted. to the United States on July 12, 1961,
upon presentation of a C-1 visa (alien in transit, section 101(a) (15)
( C) of the Act, 8 U.S.C. 1101 (a) (15) ( C) ) . 1 Respondent was injured;
he was permitted to remain in the United. States until August 10, 1961.
Before the date of his departure, he obtained a divorce from his wife
1 At oral argument counsel supplied the information that an investigation
conducted by him revealed that an individual coming to the United States to take
employment on a vessel could have been issued a D-1 (crewman) visa under
section 101(a) (15) (D) of the Act, 8 U.S.O. 1101(a) (15) (D).

101.

Interim Decision #1251
in Greece; in February 1962 he married a United States citizen. A
visa petition filed by respondent's wife was approved on April 12,
1962. Respondent filed an application for adjustment of status under
section 245(a) of the Act at his deportation hearing on July 2, 1962.
The agents of the steamship line to which respondent was destined
when he entered the United States have furnished the information
that respondent's entry was for the purpose of employment as a seaman
on a vessel (Ex. 7). The respondent admits that when he came to the
United States he had a seaman's book to ship as a crewman and that
he came here to reship on a vessel of the line on which he had arrived
(pp .13,14).
In arriving at the finding of ineligibility, the special inquiry officer
relied upon section 245.1 of Title 8 of the Code of Federal Regulations

(Supp. 1962) which provides in pertinent part as follows :
An alien who on arrival in the United States was serving in any capacity on
board a vessel or aircraft, or was destined to join a vessel or aircraft in the
United States to serve in any capacity thereon, or was not admitted or paroled
following inspection by an immigration officer is not eligible for the benefits
of section 245 of the Act. * * * 2
The Attorney General is given the power to prescribe the regulations

for the enforcement of section 245(a) of the Act. His regulation is
binding upon the Board. The regulation excludes from the benefits
of section 245 (a) of the Act a person coming to the United States to
join a vessel on which he is to serve as an alien crewman; respondent
is such a person. The appeal must be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
2 For reasons hereinafter set forth no discussion of counsel's contentions will
be made; however, so that the contentions may be understood, pertinent portions

of the law and regulations will be set forth.

Section 245(a) of the Immigration and Nationality Act (8 U.S.C. 1255(a) )
reads as follows:
The status of an alien, other than an alien crewman, who was inspected and
admitted or paroled into the United States may be adjusted by the Attorney
General, in his discretion and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent residence if * *
The term "crewman" is defined to mean "a person serving in any capacity on
board a vessel or aircraft" (section 101(a) (10) of the Act, 8 U.S.C. 1101(a)
(10) ).
An "alien crewman" is described as follows :
[Ain alien crewman serving in good faith as such in any capacity required
for normal operation and service on board a vessel (other than a fishing vessel
having its home port or an operating base in the United States) or aircraft,
who intends to land temporarily and solely in pursuit of his calling as a crewman
and to depart from the United States with the vessel or aircraft on which he
arrived or some other vessel or aircraft; (section 101(a) (15) (I)), 8 U.S.C.

1101 (a ) (15) (D)).
102


Interim Decision #2898

MATTER OF RICHARD
In Visa Petition Proceedings
A-22677182
Decided by Board February 9, 1982 .
(1) Under the Civil Code of Haiti, as amended by the 1959 Presidential Decree, children
born out of wedlock after January 27, 1959, and acknowledged by their natural father
have the same rights and obligations as legitimate children.
(2) Where the beneficiary, a native and resident of Haiti, was born out of wedlock in
1069 and acknowledged by the natural father in 1977, prior to his eighteenth birthday,

he is deemed a legitimate child for immigration purposes under section 101(b)(1)(A)
of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1XA). Metier of Remy,
14 I&N Dec. 183 (BIA 1972) overruled.
On BanALr OY PaTinoncn;

On Duneux or SEnNnou;

Prose

Gerald S. Hurwitz
'
Appellate Trial Attorney

BY: Milhoflan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members

The petitioner appeals from a decision of the District Director dated
May 11, 1981, denying a visa petition filed on behalf of the beneficiary as
the petitioner's unmarried son under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). On December 30, 1981,
the Board entered a decision in this case remanding the proceedings to
the District Director. That decision will be reconsidered on our own

motion. Our December 30, 1981, decision will be vacated and the following decision entered.
The petitioner is a 37-year-old native of Haiti and lawful permanent
resident of the United States. The beneficiary is a 12-year-old male
native and citizen of Haiti who was apparently boin out of wedlock to
the petitioner and a woman he never married. Documents offered by the
petitioner reflect that the beneficiary was formally acknowledged by the
petitioner as his child before an official of the Civil Registry of the
municipality of Duvalierville, Haiti, on December 30, 1977. The District
Director denied the petition on the ground that the beneficiary was born
Out of wedlock and had never been legitimated. The petitioner appealed
from this decision.
208

Interim Decision #2898
In order to qualify as a "son" for immigration purposes, the beneficiary must once have qualified as the "child" of the petitioner under
section 101(b)(1) of the Act, 8 U.S.C. 1101(h)(1). Matter of Coker, 14
I&N Dec. 521 (BIA 1974). The nertinent parts of section 101(b)(1)
provide:
The term 'child" means an unmarried person under twenty-one years of age who is—
(A) a legitimate child; or
(B) .. .
(C)a child legitimated under the law of the child's residence or domicile, or under the
law of the father's residence or domicile, whether in or outside the United States, if
such legitimation takes place before the child reaches the age of eighteen years and
the child is in the legal custody of the legitimating parent or parents at the time of
such legitimation.

In the present case the beneficiary was born out of wedlock. Accordingly, it must be established that he is either deemed legitimate or
legitimated under the law of Haiti or Illinois.
Under the law of Illinois, the petitioner's place of residence, the natural parents must marry in order to legitimate the child. Thus, the beneficiary has not been legitimated under the law of that state.
In Matter of Remy, 14 I&N Dec. 183 (BIA 1972), we held that under
the law of Haiti, the legitimation of a child born out of wedlock requires
the subsequent marriage of the child's natural parents, as well as acknowledgment of the child prior or during the•act of marriage.' We predicated
such holding on Article 302 of the Civil Code of Haiti, as amended by
Decree Law 466 of December 22, 1944. Subsequently, in Matter of Levy,
17 I&N Dec. 539 (BIA 1980), the Board noted a Presidential Decree
adopted in Haiti on January 27, 1959 which provides in pertinent part:
Article 1. Natural relation shall give rise to the same obligations as those deriving
from legitimate filiation.. Nonetheless, the proof of natural filiation may result only from
voluntary recognition or from judicial recognition in the case where the latter is authorized by law.
Article III. The present decree which repeals all laws or applications of laws, all
law-decrees that are contrary to it; namely articles 308, 583, 606; second paragraph, 624
1 Article 302 of the Civil Code of Haiti, as amended by Decree Law 466 of December 22,
1944 (Le Moniteur, December 25, 1944), provides:
Children born out of marriage, with the exception of incestuous or adulterme children,
are legitimated by the subsequent marriage of their father and mother, provided they
are acknowledged before the marriage or during the act of marriage...
Legitimation shall be recorded at the margin of the birth registration of the legitimated
child .
A previous translation of Article 302 provided to the Board reflected that children of
adulterous or incestuous relationships could be legitimated under the provisions of that
Article. The present translation provided by the Library of Congress reflects that such is
not 'he case. Those Board decisions rererenehig the mistranslation are accordingly modified to the extent of such mistranslation. See, for example, Matter of Remy, 14I&N Dec.
183, 184 (BIA 1972).

209

Interim Decision #2898
• .
and 742 of the Civil Code, will be published and executed at the suite of the State
Secretary of Justice.

The record was remanded in Matter of Levy for more evidence regarding the effect of the January 27, 1959, Presidential Decree.
In the present case, the Service Appellate Trial Attorney requested a
legal opinion from the Hispanic Law Division of the Library of Congress
regarding the legitimacy of the beneficiary under the law of Haiti in
effect at the time of his birth. in the resulting Library of Congress
memorandum, it was opined that the January 27; 1959, Presidential
Decree granted children born out of wedlock after that date "the same
rights and obligations as those created by legitimate filiation." See
Appendix. The Service forwarded the memorandum requesting that "it
be included in the record file and considered by the Board." By memorandum dated December 18, 1981, the Appellate Trial Attorney advised
the Board that "the Service concurs with the opinion of the Library of
Congress in this case . . . ."
We have held that when the country where a beneficiary was. born
and resides eliminates all legal distinctions between legitimate and illegitimate children, all subsequently born children are deemed to be the
legitimate off-spring of their natural father for immigration purposes.
Matter of Pavlovic, 17 I&N Dec. 407 (131A 1980); Matter of Hernandez,
17 I&N Dec. 7 (BIA 1979); Matter of Sanchez, 16 I&N Dec. 671 (BIA
1979); Matter of Wong, 16 l&N Dec. 646 (BIA .1978). The 1959 Haitian
Presidential Decree would appear to abolish all legal distinctions between
children born in and out of wedlock. Article I of the Decree by its terms
repeals all laws to the "contrary." The Library of Congress in an opinion
accepted by the Service concludes that the effect of the 1959 Decree is to
render legitimate children born in Haiti after January 27, 1959. Under

these circumstances, we find that under the law of Haiti at the time of
this beneficiary's birth, a child born out of wedlock was deemed the
legitimate off-spring of his natural father.
The record will be remanded to the District Director for further consideration based on the above findings. The District Director should of
course* be satisfied with the authenticity of any foreign document of
record upon which he relies to establish the claimed familial relationship.

ORDER The December 30, 1981, decision of the Board in this
case is reconsidered and withdrawn and the above decision entered.
FURTHER ORDER: The record is remanded to the District
Director for further proceedings in accordance with the foregoing opinion and the entry of a new decision.

210

Interim Decision #2898

APPENDIX
"ACKNOWLEDGMENT AND LEGITIMATION"
Haiti
In order to determine certain rights under the Immigration and Nationality Act of 1952, the requester wants to ascertain whether a 1977 act of
acknowledgment of a child born in 1969 in Haiti, attested to by the
father in that country, is eqUivalent to the legitimation of that child.
I. Classification of ChiWren

Under the provisions of the Civil Code of Haiti, children are classified
into three groups: legitimate, natural, and illegitimate. 2 Children of
married parents belong to the first group, those born of unmarried
parents to the second group, and those whose conception and birth
occur under adulterous or incestuous circumstances, to the third.
II. Acknowledgment of Children

Acknowledgment of children and the concomitant legal effects are
also regulated In the Civil Code as amended by Decree Law 466 of
December 22, 1944,3 and subsequently by the Decree of January 27,
1959.4 Pertinent provisions of the Code state:
Art. 805. (as amended in 1944) Acknowledgment of a natural child shall be made
though a special instrument muted before an Official of the Civil Registry ilk is not
made in the birth registration act.
Art. 306. Acknowledgment cannot benefit a child born from an incestuous or adulterous union.
At 307. The acknowledgment made by the father without the assent and consent of
the mother shall not affect the acknowledgment made by the father.
Art. 308. (repealed by the Decree of January 27, 1959) Voluntary acknowledgment
made during the marriage by one of the spouses for the benefit of the other spouse's
natural child born before his or her marriage, with the exception of the acknowledgment
of [their] child, shall not prejudice the former [i.e., their child born out of marriage] or
children born out of this marriage. Nevertheless, the acknowledgment shall pioduce
legal effects after the dissolution of this marriage if no children are born of it.

In addition, the previously cited Decree of January 27, 1959, further
amended the Civil Code by granting acknowledged natural children the
same rights and obligations legitimate children have. This Decree
- - • "- "-provides:
2 A. Leger, Civil Code Annotated, arts. -293 and 302 (Port-au-Prince, Imprimerie de
"La Presse", 1931).
3 Le Moniteur, December 25, 1944.
Id., January 29, 1959.

211

Interim Decision #2898 . •
Art. 1. Natural filiation creates the same rights and obligations as those created by
legitimate filiation.
Nevertheless, proof of natural filiation cannot be other than that arising out of a
voluntary act of acknowledgment or out of a judicial acknowledgment in those cases
authorized by the law.

In conclusion, under the laws of Haiti, the child born in 1969 and
a4knowledged by his natural father in 1977 benefits from the provisions

of the Decree of January 27, 1959, which grants him the same rights and
obligations as those created by legitimate filiation.

212


Interim Decision *1874

MATTER OF BRONX MUNICIPAL HOSPITAL CENTER
IN VISA PETITION PROCEEDINGS

NYC—N-24294
Decided by Regional Commissioner June

24, 1968

A visa petition to accord beneficiary, a physician, industrial trainee classification under section 101(a) (15) (H) OW of tne immigration cud Nationality
Act as a medical resident in the petitioning hospital is denied since the
offer of medical residency is not primarily an offer of training within the
meaning of that section but is essentially an offer of productive employment
which ordinarily would be performed by a person living In the United States.
ON BEHALF

or Prune Nsa: Elmer Fried, Esquire
515 Madison Avenue
New York, New York 10022

This matter is before the Regional Commissioner on appeal from
the decision of the District Director denying this petition.
This is a joint petition. The first petitioner is a large hospital in the
New York City area. The second petitioner is a college 'of medicine
which since 1951 has assumed responsibility for the professional care
of patients in the hospital, now the principal teaching hospital of the
college. The co-petitioners seek to have the beneficiary accorded nonimmigrant industrial trainee classification under section 101(a) (15)
(H) (iii) of the Immigration and Nationality Act for a residency in
psychiatry which will extend for a period of three years, 44 hours a
week. The salary for the first year is $5,600, for the second year approximately $6,000, and for the third year about $6,400.
The beneficiary is a 26-year-old native, citizen, and resident of
Canada, a physician by occupation.
At the beginning of his oral argument, counsel stated that a residency is by its nature training; that any productive work of the
beneficiary will be negligible for the first year; that there is nothing
in the statute or regulations to preclude classification as an industrial
trainee of a doctor coming to the -United States as an intern or resident
in a hospital; and, further, that the denial order of the District Director was in effect meaningless, merely a compliance with an assumed
unpublished policy of the Service not to grant such status to a doctor.
768

Interim Decision VISIS
Counsel assumed such a policy existed on the basis of the telephonic
response of an unidentified person in the District Director's office to
an inquiry by the hospital prior to filing of this petition. Reportedly
the Service employee stated that the hospital could bring a physician

into the United States for an internship or residency only as an immigrant or as an exchange visitor. Such a statement, as well as our
review of the record of proceeding (and the administrative portion
of the file), does not show that the District Director's decision was
made other than in the exercise of his independent judgment on the
facts of record pursuant to the authority delegated to him. We shall
consider the appeal on its merits.
Section 101(a) (15) of the Aet defines a nonimmigrant industrial
trainee as follows:

(H) an alien having a residence in a foreign country which he has no intention
of abandoning . . . (iii) who is coming temporarily to the United States as an
industrial trainee;
Section 214(o) of the Act provides :
(c) The question of importing any alien as a nonimmigrant under section 101
(a) (15) (H) in any specific case or specific cases shall be determined by the
Attorney General, after consultation with appropriate amides of the Government, upon petition of the importing employer. Such petition shall be made and
approved before the visa is granted. The petition shall be in such form and
contain such information as the Attorney General shall prescribe. . . .

The prescribed regulation (8 CPR, 214.2(h) (2) (iii)) reads as
follows:
(iii) Petition for alien industrial trainee. In addition to purely industrial
establishments an individual, organization, Arm or other trainer may petition
for industrial trainees on Form I-129B for the purpose of giving instruction or
training in agriculture, commerce, finance, government, transportation, and the
professions. The source of any remuneration received by an industrial trainee
and whether or not any benefit will accrue to the petitioner are not material,
but an industrial trainee shall not be permitted to engage in productive employment, if such employment will displace a United States resident. A hospital approved by the American Medical Association for either an internship or residency
program may petition to classify as an industrial trainee a medical student who
will engage in employment as an extern during his medical school vacation period.
There shall be attached to each petition for an industrial trainee a statement
describing the type of training to be given, the position or duties for which the
beneficiary is to be trained, and whether such training can be obteined outside
the United States. There shall be included an explanation as to the need for the
trainee to be trained in the United States.
The supporting documents filed with this petition consist of a statement that the petitioner plans to train the alien starting July 1,1968 in
accordance with its enclosed brochure, and the brochure of twelve
pages entitled "Residency Training in Psychiatry."
769

Interim Decision #1874
On oral argument, counsel stressed the high professional standing
of the petitioners, but on the issue of need to take the residency in the
United States, indicated this is largely a matter of choice of an institution by the alien. Counsel asserted this is not a proper case for classification of the alien as an exchange visitor (section 101(a) (15) (J)
of the Act), stating that the purpose of exchange visitor programs is to
bring persons from undeveloped countries to the United States for
training for the benefit of the undeveloped countries upon their return
to such countries, and that Canada is not an undeveloped country.
With respect to the education and training of physicians, notice may
be taken that medical schools in Canada are under the same close
supervision as medical schools in the United States. The Educational
Council for Foreign Medical Graduates (ECFMG) sponsored by
The American Hospital Association, The American Medical Assoulation, The Association of American Medical Colleges, and The Federation of State Medical Board of the United States, in its pamphlet
"Information for Applicants", exempts from its definition of "foreign
medical graduates" foreign nationals who are graduated from medical
schools in the United States, Puerto Rico, and Canada. The petitioner
has not satisfactorily established that a similar residency or training
is not available to the beneficiary in his native country.
Counsel further asserts that the beneficiary intends to return to
Canada after completion of the residency, but states the alien does not
wish to place himself in a position where he will be subject to the twoyear foreign residence requirement applicable to exchange visitors
seeking permanent residence in the United States. Counsel explains
that the beneficiary's wife is a United States citizen presently employed in Canada; that she will be coming to the United States to
obtain a teaching position; that he knows it is possible she may give
the alien a hard time about breaking up her career if she becomes well
established here; and that in such a family situation, the beneficiary
might be forced to pursue his own career in the United States.
The principal issue is whether the position of "resident" in this hospital is "training" within the meaning of section 101(a) (15) (H)
of the Act.
The brochure describing this residency has been carefully reviewed.
Some formal instruction is set forth. It is noted that the philosophy of
the residency programs contains the statement that the residents "generally speaking, become active partners in the treatment of the patient"; and that, "The application of principles is left almost entirely
to the resident, since the responsibility for the care of the patient is
mainly his." Under the heading, "The Residency Program," there is
the opening statement, "The residency program is organized essen770

tially as a clinical program based on work with inpatients and outpatients, both adult and pre-adult". The "First Year Schedule"
includes statements indicating the resident engages in productive employment, such as work in the Developmental Evaluation Clinic while
on the research ward for two months service, being "the doctor responsible for the patient's care during the period that he is assigned to the
clinic"
With respect to physicians, "The Occupational Outlook Handbook",
1968-6I Edition, a publication of the Department of Labor, states at
page 120:
Earnings and Working Conditions
New graduates serving as interns in 1964 had an average annual salary of
$3,053 is hospitals affiliated with medical schools and $3,678 in other hospitals.
Resident during 1964 earned average annual salaries of $3,739 in hospitals affiliated with medical senools and $4,809 in nonaffiliated hospitals. Many hospitals
also provided full or partial room, board, and other maintenance allowances to
their interns and residents. (Emphasis supplied.)

The position of intern in a hospital is a continuing position of a permanent nature on the hospital staff. Matter of Af—S—H—, 8 I. & N.
Dec. 460. The medical resident, who has completed an internship, holds
a more responsible position on the hospital staff. The position the beneficiary is to occupy is one of a limited number at this hospital. His
responsibilities will be the same as those of other residents on the hospital staff.
After careful consideration of the entire record in the light of the
representations on appeal, it is found that the offer of the residency in
this hospital is not primarily an. offer of training within the meaning
of section 101 (a) (15) (H) (iii) of the Act, but on the contrary is essentially an offer of productive employment which ordinarily would be
performed by a person living in the United States. It is concluded that
the beneficiary is not eligible for nonimmigrant industrial trainee classification. The appeal will be dismissed.
It is ordered that the appeal be and hereby is dismissed.

771


Cite as 26 I&N Dec. 693 (BIA 2015)

Interim Decision #3854

Matter of Miguel Angel CASTRO-LOPEZ, Respondent
Decided December 2, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

The 10 years of continuous physical presence required by 8 C.F.R. § 1240.66(c)(2)
(2015) for aliens seeking special rule cancellation of removal under section 203 of the
Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II,
111 Stat. 2160, 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644
(1997), should be measured from the alien’s most recently incurred ground of removal,
at least where that ground is among those listed in 8 C.F.R. § 1240.66(c)(1).
FOR RESPONDENT: Luis Carlos Diaz, Esquire, Silver Spring, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY:
Assistant Chief Counsel

Kellie Santos-DeJesus,

BEFORE: Board Panel: PAULEY and WENDTLAND, Board Members; O’Herron,
Temporary Board Member.
PAULEY, Board Member:

In a decision dated February 5, 2015, an Immigration Judge granted the
respondent’s application for special rule cancellation of removal pursuant to
section 203 of the Nicaraguan Adjustment and Central American Relief Act
(“NACARA”), Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2196
(1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997). The
Department of Homeland Security (“DHS”) has appealed from that
decision. The appeal will be sustained and the record will be remanded for
further proceedings.
The respondent is a native and citizen of El Salvador who most recently
entered the United States without inspection in 1996. He has remained in
this country unlawfully since that time. The respondent was convicted of
possession of cocaine in Maryland on July 13, 2012.
The DHS initiated removal proceedings against the respondent,
charging that he is inadmissible under sections 212(a)(6)(A)(i) and
(2)(A)(i)(II) of the Act, 8 U.S.C. §§ 1182(a)(6)(A)(i) and (2)(A)(i)(II)
(2012), as an alien who is present in the United States without being
admitted and who has been convicted of a controlled substance violation.
The Immigration Judge found the respondent removable on both grounds.
693

Cite as 26 I&N Dec. 693 (BIA 2015)

Interim Decision #3854

The respondent applied for special rule cancellation of removal under
the NACARA. Because of his controlled substance conviction, the
Immigration Judge applied the heightened standards for establishing
continuous physical presence set forth in 8 C.F.R. § 1240.66(c) (2015),
which provides, in pertinent part, as follows:
Aliens inadmissible or deportable on criminal or certain other grounds. To
establish eligibility for special rule cancellation of removal under section
309(f)(1)(B) of IIRIRA, as amended by section 203 of NACARA, the alien must
be described in § 1240.61 and establish that:
(1) The alien is inadmissible under section 212(a)(2) of the Act (relating to
criminal activity) . . . ;
(2) The alien has been physically present in the United States for a continuous
period of not less than 10 years immediately following the commission of an act, or
the assumption of a status constituting a ground for removal;
....

(Second emphasis added.)
It is undisputed that these heightened standards apply. At issue,
however, is whether the respondent established the required 10 years of
continuous physical presence immediately following the assumption of a
status constituting a ground for removal. The Immigration Judge found that
when the respondent entered the United States illegally in 1996 and
remained in violation of law, he assumed a status that would constitute a
ground for removal, from which his continuous physical presence should be
counted. The DHS contends that the Immigration Judge erred in finding
that the respondent met the 10-year physical presence requirement because
continuous physical presence should be measured from the most recently
incurred ground of removal, which, in this case, is the respondent’s 2012
conviction. We review this question of law de novo. See 8 C.F.R.
§ 1003.1(d)(3)(ii) (2015).
We conclude that, in calculating continuous physical presence for
special rule cancellation of removal under circumstances such as those
presented in this case, the alien’s most recent ground of removal controls.1
Contrary to the Immigration Judge, who found that the language of the
regulation is straightforward, we find it to be ambiguous. It does not
address the situation where there is more than one act or event that renders
an alien removable, as is the case with the respondent.
1

We need not address whether 8 C.F.R. § 1240.66(c)(2) is limited to the criminal
grounds set forth in 8 C.F.R. § 1240.66(c)(1) because the DHS has not presented that
issue on appeal. In any case, the respondent’s most recent act involved a criminal ground
listed in 8 C.F.R. § 1240.66(c)(1), namely, section 212(a)(2) of the Act.

694

Cite as 26 I&N Dec. 693 (BIA 2015)

Interim Decision #3854

Since 8 C.F.R. § 1240.66(c) essentially adopts the framework for
suspension of deportation under former section 244(a)(2) of the Act,
8 U.S.C. § 1254(a)(2) (1994), we find that our prior treatment of
applications for that relief provides helpful guidance in interpreting the
regulation. See Matter of Romalez, 23 I&N Dec. 423, 427 (BIA 2002)
(“Applicants for special rule cancellation of removal under the NACARA
are subject to either a 7-year or 10-year continuous physical presence
requirement consistent with the suspension of deportation provisions of
prior law.”); see also Cuadra v. Gonzales, 417 F.3d 947, 949 (8th Cir.
2005) (noting that the NACARA allows certain aliens “to seek relief under
conditions approximating . . . suspension of deportation”).
In Matter of Wong, 13 I&N Dec. 427 (BIA 1969), we addressed a split
in the circuit courts regarding the question of how to measure physical
presence for suspension of deportation when more than one deportation
ground exists. We first noted that in Fong v. INS, 308 F.2d 191 (9th Cir.
1962), the United States Court of Appeals for the Ninth Circuit had held
that the 10-year period of physical presence required for suspension of
deportation starts with the commission of the first deportable act.2
However, we observed that the Ninth Circuit’s decision had been rejected
by other circuits, which determined instead that the period of physical
presence ran from the commission of the last deportable act.
Specifically, in Patsis v. INS, 337 F.2d 733, 740 (8th Cir. 1964), the
Eighth Circuit stated that the required 10 years of physical presence was a
“testing period,” which Congress “felt to be of sufficient length to provide
enough assurance that the alien would be an acceptable addition to society
despite any misstep of a decade or more ago.” Noting that the statute was
“somewhat ambiguous,” the Second Circuit agreed that an alien who
committed a deportable act within the 10-year “probationary period” should
not be allowed to apply for suspension of deportation. Gagliano v. INS,
353 F.2d 922, 929 (2d Cir. 1965). Two other circuits, the Sixth and the
Third, had issued decisions prior to Fong that seemed to be in accord.3 See
Matter of Wong, 13 I&N Dec. at 429. Concluding that it was in the interest
2

Former section 244(a)(2) of the Act, 8 U.S.C. § 1254(a)(2) (1964), at issue in Wong,
was a later version of the provision that had been addressed by the Ninth Circuit, which
acknowledged that the “manner in which [the statute was] worded left it open to two
possible constructions.” Fong v. INS, 308 F.2d at 194. Both sections used the same
language regarding physical presence, requiring a continuous period of not less than
10 years “immediately following the commission of an act, or the assumption of a status,
constituting a ground for deportation.”
3
In addressing the circuit split, we did not discuss any cases decided by the Fourth
Circuit, in whose jurisdiction this case arises. Nor are we now aware of any pertinent
precedent issued by that court.

695

Cite as 26 I&N Dec. 693 (BIA 2015)

Interim Decision #3854

of uniformity to follow the majority view, we held that when there is more
than one ground of deportation, the period of continuous physical presence
should be measured from the date of the last deportable offense. Id. at 430.
We find no reason to alter our interpretation of the continuous physical
presence requirement for special rule cancellation of removal under
8 C.F.R. § 1240.66(c)(2), whose language is substantively identical to that
of the suspension of deportation statute we addressed in Wong. Therefore,
for purposes of special rule cancellation of removal under the NACARA,
we hold that continuous physical presence should be measured from the
alien’s most recently incurred ground of removal, at least if that ground is
set forth in 8 C.F.R. § 1240.66(c)(1). See generally Auer v. Robbins, 519
U.S. 452, 461 (1997) (stating that an agency’s interpretation of its own
regulation is “controlling unless ‘plainly erroneous or inconsistent with the
regulation’” (quoting Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 359 (1989))).
The respondent’s July 13, 2012, conviction for possession of cocaine is
his most recent ground of removal. Consequently, his continuous physical
presence should be measured from that date. Because he is unable to show
that he has the required 10 years of physical presence, we conclude that
the Immigration Judge erred in finding that the respondent established
eligibility for special rule cancellation of removal. Accordingly, the DHS’s
appeal will be sustained in regard to the Immigration Judge’s grant of that
relief.
The Immigration Judge did not adjudicate the respondent’s other
applications for relief from removal. The record will therefore be
remanded, and the respondent may apply for any relief for which he may be
eligible. The parties should be permitted to update the record with
additional evidence.
ORDER: The appeal of the Department of Homeland Security is
sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

696


Interim Decision #1368

MArrra

OF WOLFE

In SECTION 245 Procedings
A-11149323
Decided by Acting Regional Comendeeionor June 128, 1084

Adjustment of status under section 245, Immigration and Nationality Act, as
amended, is denied in the exercise of discretion to an Iranian student whose
education in this country was financed by the Iranian government and who is

committed to return to Iran and work for the government since, in the opinion
of the Department of State, such adjustment may adversely affect the relations
between the governments of the United States and Iran in the absence of evidence that applicant has made firm plans to return to Iran at a npecific future
date or has made mutually satisfactory arrangements for repaying the Iranian
government.

This case is on certification from the decision of the District Director
denying the application on the ground that adjustment of her status
to that of a permanent resident may adversely affect our relations with
Iran.
The applicant is a twenty-seven-year-old female, native and citizen
of Iran, who was last admitted to the United States at New York,
New York on September 2, 1961, as a student pursuant to section 101
(a) (15) (F) of the Immigration and Nationality Act. She first
entered the United States on June 20, 1958, as a student and remained
until June 1960. She was again admitted to the United States as a
student on September 10, 1960, and remained until June 1961. The
applicant's education was financed by the Iranian Government and she
received $160 monthly from the Iranian Ministry of Education between September 1958 and June 1962. She signed a commitment to
return and work for the government for the same period of time that
she had spent in the United States. In the brief submitted by the
applicant's United States citizen husband, he stated that they had
received a statement from the Iranian Government informing the
applicant that she owed them $10,380. The Secretary of State,
through his designated representative, has made the following statement: "Mrs. Wolfe's case appears to be one in which the adjustment
of status to permanent resident would cause the Iranian Government
651

Interim Decision #1868
to feel that its interests had not been taken into account. Therefore,
the Department suggests that before Mrs. Wolfe's status is changed,
the Service require that she show evidence that she has made firm plans
to return to Iran at a specific future date or that she has reached a
mutually satisfactory arrangement with the Iranian authorities for
repaying the Iranian Government at least some of the money it has
invested in her education".
While the applicant's husband stated his willingness to repay the
money, he has not presented any evidence of satisfactory arrangements
with the Iranian Government.
The present facts in this case do not warrant favorable exercise of
the Attorney General's discretion. When and if the applicant makes
Ratisfstetary arrangements with the Iranian. authorities to repay the
money and obtains a release from her commitment, favorable action
could be considered.
ORDER: It is ordered that the order entered by the District Director on May 25, 1961, be affirmed.

652


Interim Decision #2302

MATTER OF MANALO
In Exclusion Proceedings
A-19257498
Decided by Board July 3, 1974
Request for permission to withdraw his application for admission, made following the
entry of an exclusion order and during the pendency of appeal to the Board, is denied an
applicant found excludable on the ground he obtained his visa by misrepresenting
material facts.
EXCLUDABLE.% Act of 1952—Section 212(a)(19) [8 U.S.C. 1182(a)(19)J—Procured visa
by misrepresenting material facts.
Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)1—Immigrant alien
.
not in possession of immigrant visa.
ON BEHALF OF APPLICANT: Dan F. Danilov, Esquire
3828 Seattle-First National Bank Building
Seattle, Washington 98154

During the pendency of this appeal from an exclusion order, applicant's counsel wrote us under date of June 5, 1974 that the applicant
"has requested departure from the United States on June 5, 1974 and he
has arranged to pay for the transportation costs out of his own funds."
Enclosed was a request for dismissal of the appeal "for the reason that
the applicant wishes to withdraw his Application for Admission into the
United States and return to the Republic of the Philippines as soon as
possible." We are informed by the Immigration and Naturalization
Service that the applicant departed from the United States on June 5,
1974.

There is a marked difference between withdrawl of an appeal, which
under 8 CFR 3.4 leaves the original exclusion order in effect to the same
extent as if no appeal had been taken, and withdrawal of an application

for admission. If permission is granted by the immigration judge or this
Board to withdraw the application for admission, the alien departs
without being excluded. The alien may not, without leave and as a
matter of right, withdraw his application for admission, Matter of
Vargas-Molina, 13 I. & N. Dec. 651 (BIA, 1971). On this record, we see
no reason to permit withdrawal of the application for admission.
ORDER: The record is returned to the Service without further action

by the Board.
4


Interim Decision #1383

MATIMR OF

T—E—C

In VISA PETITION Proceedings
A-13196848
Decided by Regiona Comenierrioner January 16, 1964
Petition to accord nonquota status to beneficiary-child, as defined in section
101(b) (1) (F), Immigration and Nationality Act, as amended, is denied since,
pursuant to section 205(b) of the Act, the preadoption requirements of the
State of New York have not 'been complied with and the petitioner and spouse,
who have 6 children of their own, have not established ability to properly care
for the beneficiary in view of their spasmodic work records, the difficulties
which they have experienced in maintaining rent payments and the presence
of their names on the welfare records.

This matter is before the Regional Commissioner on appeal from the
decision of the District Director at New York who has denied this
petition in the belief that the petitioners have not satisfactorily established that they will be able to properly care for the orphan
beneficiary.
The petitioner is a native-born United States citizen, born at Brooklyn, New York, on March 16, 1932. Her husband is a British subject
born at St. Peter's, Barbados, British West Indies, on April 18, 1928.
Their marriage took place on December 19, 1953. Six children, nine,
eight, seven, four, three and four months, have been born to the petitioner and spouse and reside with them in their apartment in Brooklyn. The beneficiary is one of the eight children of E—C--, four of
whom, including the beneficiary, were born to her out of wedlock
as a result of relations with the petitioner's spouse. The beneficiary's
mother has consented to this adoption and has indicated in her affidavit that the petitioner intends to petition, in the near future, for the
two other children who are still under fourteen years of age. She

has also stated that the petitioner's spouse has been continuously
sending her between $30 and $40 a month for the support of the children. It is her feeling that the beneficiary's best interests will be
served by this adoption and that the child can get a better education
in the United States.
691

Interim Decision #1383

The petitioner's spouse was employed by the Friendly Frost Stores
as a truck driver or helper and in March 1963 was being paid $2.411/2
to $2.5831 an hour, depending upon whether he worked as A driver or
helper. Work at that time was scarce and for the previous ten weeks
his earnings had totaled $289.27. He had previously worked for F. G.
Walker Shipping Company, 360 Sumner Avenue, Brooklyn, where
he had earned $367 between August 3, and September 30, 1960. The
petitioner has been employed at the Brooklyn Hospital since November 25, 1961, receives an hourly rate of $1.80, is classified as a practical
nurse, and usually works from twenty to thirty hours per week. She
was employed as a practical nurse by the Sings County Hospital between October 16, 1956, and July 8, 1958, and was previously employed
in an unidentified capacity at the Cumberland Hospital between

June 1, 1953, and November 3, 1955. The withholding tax statement
for the petitioner's spouse for 1962 reflects earnings of $5893.61 and
for the petitioner, earnings are shown. $1916.36. Seven dependents
are reflected in the male petitioner's W-2 report.
The New York City Welfare Department records Show that the
petitioner and spouse were on welfare from February 11, 1960, to
August 15, 1960, and again from March 13, 1961, to June 22, 1901.
The New York City Housing Authority records reflect that the petitioner and spouse have been delinquent in rent payments thirteen times
between October 1960 and March 1961. Counsel has submitted photostatic copies of a rent receipt booklet which reflect balances due, on
.the petitioner's account. Among these is a balance of $267 in June
of this year. This was reduced to $17 as of November 1963. Counsel
has also submitted a letter from a real estate office indicating that its
author, Stanley Siebert, has examined the petitioner's rent payment
record and has stated that it is definitely far above the average. He
bases this conclusion upon local conditions and the fact that the petitioner and spouse have always paid. within the month. Further evidence of the petitioner's financial resources is found in. a letter from
the First National City Bank of New York reciting the maintenance
of an account since August 4, 1961, 'with a balance on February 21,
1963, of $607.69.
Section 115—a, Domestic Relations Law of the State of New York,
as amended April 14, 1962, Chapter 527, Laws of New York, requires
that a preadoption certificate be issued by an appropriate adoption
-court, unless the child is recommended for placement with the petitioner for adoption by an adoption agency approved by that State.
In the case under consideration, there is neither a preadoption certificate from a court nor a placement recommendation from an approved
agency.
692

Interim Decision #1383
Inasmuch as this preadoption requirement of New York State, the
state of the beneficiary's proposed residence, has not been complied
with, as required by section 205 (b) of the Immigration and Nationality Act, as amended, it is concluded that favorable consideration on
this petition is precluded. In addition, it is also apparent, from the
presence of the names of the petitioner and spouse on the welfare
records, the difficulties which they have experienced in maintaining
rent payments, and Their spasmodic work records, that they are already
. committed to obligations for the support of their six children which
have become burdensome. The ability of the petitioner and spouse
to care for the beneficiary properly, as required by section 205 (b),
has also not been established satisfactorily. For the reasons stated
above, this petition cannot be approved.
it is ordered that the decision of the District Director denying this
petition be and the same is hereby affirmed.

693


Interim Decision #2062

MATTER OF ZEDKOVA
In Section 203 (a) (7) Proceedings
A-18049736
Decided by Regional Commissioner November 23, 1970
Since the term "fled" as used in section 203(a) (7) of the Immigration and
Nationality Act, as amended, may reasonably be construed to include one
who has avoided, abandoned or forsaken a danger or evil, it is immaterial
whether the circumstances creating refugee status occurred prior or subsequent to departure from the designated country or area. Hence, an alien
who departed temporarily from Czechoslovakia prior to the Communist
upheaval there in August 1968, but who because of political opinion now
fears to return in view of the changed conditions in that country, is eligible for refugee classification under section 203(a) (7) of the Act, as
amended.
)N BEHALF OF APPLICANT: Harold G. Grimes, Representative
International Rescue Committee, Inc.
386 Park Avenue South
New York, New York 10016

This matter is before the Regional Commissioner on certificaion for review of the District Director's determination that the
pplicant is eligible for refugee classification under section
03 (a) (7) of the Immigration and Nationality Act, as amended.
t was further concluded that she is entitled to adjustment of
tatus under section 245 of the Act, as amended.
The alien is an unmarried twenty-two-year-old native and citien of Czechoslovakia who was last admitted to the United States
n April 2, 1968 as a nonimmigrant visitor for pleasure until
eptember 30, 1968. She was granted an extension of her tempoary stay until March 30, 1969. Her request for a further extension
/as denied and she was given until May 23, 1969 to leave this
ountry. In view of her refusal to return to Czechoslovakia, she
as subsequently granted until May 23, 1970 to depart voluntary from the United States. On July 7, 1970 she filed the instant
pplication for adjustment of status to that of a permanent resi626

Interim Decision #2062
dent and, in conjunction therewith, requested classification as a
refugee.
In support of her application for refugee status, the alien has
submitted an affidavit wherein she states that she last entered the
United States on April 2, 1968 to visit friends; that while she
was here, the Soviet Union invaded Czechoslovakia on August 20,
1968 and she was advised by her father not to return home; that
her parents have always been anti-communist and her father has
steadfastly refused to join the Communist Party; that he has also
evidenced anti-Soviet sentiments, and, as a result, has been attacked in the Czechoslovak press and transferred from his job in
Prague to a border city; that she has not heeded an order from
the Czechoslovak Embassy in the United States to return to
Czechoslovakia by December 31, 1969; that she feels she would be
persecuted if she went back, and would be prevented from continuing her education and securing employment; that her sister
and her husband, who also came to the United States on a visit,
are likewise afraid to return to Czechoslovakia and have applied
for permanent residence.
Section 203 (a) (7) of the Act provides in pertinent part as follows:
Conditional entries shall next be made available * * * to aliens who satisfy
an Immigration and Naturalization Service officer * * * (A) that (i) because
of persecution or fear of persecution on account of race, religion, or political
opinion they have fled (I) from any Communist or Communist-dominated
country or area, or (II) from any country within the general area of the
Middle East, and (ii) are unable or unwilling to return to such country or
area on account of race, religion, or political opinion, and (iii) are not nationals of the countries or areas in which their application for conditional
entry is made.... (Emphasis supplied)

The principal issue to be resolved in the matter at hand is
whether this applicant can be regarded as having "fled" from a
Communist or Communist-dominated country within the contemplation of the statute because of persecution or fear of persecution on account of race, religion or political opinion. At the time
she last departed from her country, the events which militated
against her return had not yet transpired. While she was in the
United States, Russian troops invaded Czechslovakia on August
20 and 21, 1968 and the Government of that country was replaced
with a Soviet-imposed regime. Several thousand Czechoslovak nationals escaped into Austria and Germany where they sought
classification as refugees. As a consequence for the first time
since section 203(a) (7) became effective, the number of refugees
abroad who sought entry into the United States under this sec-

627

Interim Decision #2062
tion exceeded the number of visas available (1969 Annual Report
of the Immigration and Naturalization Service, Page 11).
In addition to the thousands of Czechoslovakians who fled the
Soviet invasion, there were countless others who were outside the
country at the time and, because of the change in government, refused to return. It would be extremely narrow and inequitable to
view those nationals who physically fled from Czechoslovakia because of political opinion as refugees and to withhold such status
from those who remained out of the country for the very same
reason. According to "Webster's New International Dictionary",
Third Edition, the term "fled" may reasonably be construed to include one who has avoided, abandoned or forsaken a danger or
evil. We believe that this broad construction is consonant with
the remedial nature and purpose of section 203 (a) (7) of the Act
in its use of the term. Within the context of such definition, it is
immaterial whether the circumstances which caused an alien to
become a refugee occurred before or after departure from the
country or area.
In the instant case, we find it has been satisfactorily estabished that the applicant abandoned her residence in Czechoslova{ia because of fear of persecution on account of her political beiefs and is unwilling to return there for the same reasion. It is
oncluded, therefore, that she has constructively fled from a Cornnunist country within the contemplation of the statute and
neets the requirements for classification as a refugee under secion 203 (a) (7) of the Act. The alien has been continuously physially present in the United States for at least two years prior to
er application for adjustment of status and an immigrant visa
umber is immediately available to her under the proviso to secon 203 (a) (7) of the Act. Inasmuch as she qualifies for adjusttent in all other respects, the decision of the District Director
ill be affirmed.
It is ordered that the decision of the District Director approvg the applications for classification as a refugee under section
)3 (a) (7) and for adjustment of status to permanent resident
lder section 245 of the Immigration and Nationality Act, as
nended, be and same is hereby affirmed.

628


MATTER OF S—

In DEPORTATION Proceedings
A-10654545
Decided by Board November 1, 1961
Crime involving moral turpitude—Homicide—Article 153 of the Penal Code
of Peru.
A. conviction under Article 153 of the Penal Code of Peru for killing another
unrIpr the influence of violent emotion which circumstances may render
excusable is equivalent to conviction in the United States for voluntary
manslaughter and is a crime involving moral turpitude.
CHARGES :
Order Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under 8 U.S.C. 1182(a) (9)—Convicted of crime (homicide).
Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1) i—Excludable
at entry under 8 U.S.U. 1182(a) (19)—Visa procured by fraud or
misrepresentation.
BEFORE THE BOARD
DISCUSSION: This case is before us on appeal from a decision
of a special inquiry officer granting voluntary departure and directing that the respondent be deported if he fails to depart voluntarily.
For the reasons hereinafter stated, the appeal will be dismissed.

The respondent is a 37-year-old married male, native and citizen
of Mexico, who last entered the United States on or about January 17, 1960, as a returning resident. He was admitted for permanent residence on May 16, 1956. On June 20, 1952, he was convicted
in Peru of homicide, the crime having been . committed on November 11, 1950. He was sentenced to imprisonment for 3 years but
was given credit for the time he had been incarcerated. The period
of imprisonment was from November 1950 until about November
1953. The special inquiry officer found that the respondent withheld the facts of his conviction and imprisonment from the American consular officer when he procured his immigrant visa on January 20, 1956. The only issue involved is whether the respondent is
deportable on the two charges mentioned above.
We have carefully reviewed the entire record. The conviction
record (Exh 2) .indicates that the circumstances surrounding the
496

homicide were as Tolima s. The respondent had traveled to Peru
early in November 1950 on a business trip. On the night of November 11, 1950, he asked a taxicab driver to take him to a place where
he would be able to dance. He was taken to a house of prostitution
and danced with one of the prostitutes. Later they had sexual intercourse and she requested a sum of money. An argument took
place during which she scratched him on the back of the neck and
he seized her by the throat with both hands, and threw her on the
bed, the strangulation causing her death. In pronouncing -judgment, the court said that the respondent did not have the intention
of killing this woman; that he was not, however, proceeding in his
legitimate defense; that he was intoxicated; and that he "made
disproportionate use of masculine strength * * *."
The English translation of Exhibit 2 contains the statement,
"* * * the substance of the crime in this trial is found comprehended
within the provisions of Articles 150, 100, 90 and 153 of the Penal
Cade." However, the original Spanish document indicates that the
first Article referred Lu was 51 rather than 150. Artiele.5 51, 90
and 100 specify the persons who are to be deemed responsible for
the commission of crimes and set forth certain matters which are to
be considered in determining the punishment. The special inquiry
officer found that the conviction occurred under Article 153 of the
Penal Code of Peru, and counsel concedes that this is the statutory
provision involved. Hence, the erroneous reference to Article 150
is not material.
According to the English translation of the pertinent part of
Article 153, it relates to "killing another under the influence of a
violent emotion which circumstances may render excusable." Where
an alien has been convicted of an offense in a foreign country, the
question of whether the crime involves moral turpitude must be
determined in accordance with standards prevailing in the United
States. Mercer v. Lence, 96 F.2d 122 (C.C.A. 10, 1938), cert. den.
305 U.S. 611. In construing the immigration laws, it has been consistently held that voluntary manslaughter involves moral turpitude
and that involuntary manslaughter does not. Matter of 8—, 2-559,
570 (A.G., 1947). There is no disagreement between counsel and the
Service as to any of these matters.
With reference to the special inquiry officer's statement that Article 153 of the Penal Code of Peru is sufficiently broad to include
crimes that involve moral turpitude and those which do not, counsel
contends that this precludes a conclusion that the respondent was
convicted of a crime involving moral turpitude in view of our statement in Matter of B—, 4-493, 496 (1951), that the definition of a
crime must be taken at its minimum. We disapprove the special inquiry officer's statement Dines we perceive nothing in the language of
65437-53

33

497

Article 153 which would indicate that it is a broad statutory provision
or that it could include a crime not involving moral, turpitude.
Counsel asserts that the special inquiry officer took into account
the circumstances surrounding the homicide and he contends that
this was error. He further urges that, even if the circumstances are
considered, they should lead to the conclusion that the crime does not

involve moral turpitude. Actually, the special inquiry officer considered only statements and findings which appear in the judgment
of the court (Exh 2), and we believe this was permissible under our
decisions in Matter of K—, I 190 (1951), and Matter of M.—, 9-132
(1960), where the convictions also occurred in foreign countries. In
the former case, we held that it was proper to consider any statement
of record made by the court in sentencing a defendant. In the latter,
we said that we may look beyond the foreign statute to consider such
facts as may appear from the record of conviction or from other sections of the foreign criminal code to roach an inckpendent conclusion
as to whether the offense is one which under our law would involve
moral turpitude.
Although we believe that the statements made by the court in pronouncing judgment may properly be considered, we will base our decision in this case upon the language of the statute under which the
respondent was convicted. Before discussing the statutory language,
however, we will comment on counsel's contention that the circum-

stances of the homicide require a conclusion that the crime does not
involve moral turpitude. Counsel contends that the special inquiry
officer decided the case on a theory which would mean that a playful
but intentional push, resulting in death, would constitute voluntary
manslaughter. If the respondent had merely pushed the woman
from him and she had died as a result of falling and striking her
head, the circumstances would hardly suggest moral turpitude. On
the other hand, when the respondent grasped the prostitute by the
throat with both hands, it would seem that a court might well have
been warranted in finding that the respondent intended to kill the
woman
We are aware, of course, that the court specifically found that the
respondent did not have the intention of killing Ibis woman. Counsel relies on this finding and he contends that the distinction between

voluntary manslaughter and involuntary manslaughter is that an
pAsentinl element of the former is the intent to kill which is not
present in the latter. In his brief, counsel quoted the following
sentence appearing in 26 Am. Jur., Homicide § 18: "The mental
state that characterizes the crime of involuntary manslaughter is the
absence of intention to cause death, either actual or reasonably to be
implied from the homicidal act." Although an intention to cause
498

death would preclude the possibility of classifying the crime as
involuntary manslaughter, this does not mean that the intention to
cause death is a necessary element of voluntary manslaughter. In
9.6 Am. Jun, Homicide § 19, appears the statement: "The offense
[voluntary manslaughter] is one involving moral turpitude, but
whether the slayer must have been actuated by a design or purpose
to kill is a question on which the authorities differ. According to
the expree.eions in some cases, voluntary manslaughter necessarily
involves the intention to deprive another of life, whereas other
opinions state that no design to kill is necessary; and authority may
be found in support of the position that the homicidal blow must
have been struck without intention to encompass death."
In connection with the latter statement above, that some authorities hold that voluntary manslaughter requires the absence of an
intention to cause death, this is the situation under the New York
statute which refers to manslaughter in the first degree as one "com
mitted without a design to effect death." In discussing this statutory
provision in United States en rel. SoNano v. Doak, 5 F. Supp. 561,
565 (N.D. N.Y., 1933), aff'd 68 F.2d 1019, the court said: "The only
intent lacking in manslaughter in the first degree is intent to effect
death. Had there been intent to kill, it would not have been manslaughter in the first degree but murder."
In Bishop v. United States, 107 F.2d 297, 302 (C.A. D.C., 1939),
the court. said: "The crime of manslaughter occurs when the killing
is done in 'heat of passion' engencle.re.d by adequate provocation. To
constitute this crime it is not required to show that the killing was
done purposely, deliberately, premeditatedly, or with malice aforethought. It is only necessary to show that the killing was committed
in 'heat of passion' upon sufficient provocation." The fact that it
is not necessary to show that the killing was done purposely indicates that the intent to kill is not a required clement of manslaughter.
In view of the foregoing, we do not believe that the fact that the
court said that the respondent did not intend to kill the woman shows
that the offense was involuntary manslaughter rather than voluntary
manslaughter. We need not discuss the cases cited by counsel for the
proposition that the determination of whether a crime involves moral
turpitude is to be made on the basis of the statutory provision
rather than on the circumstances of the case since we have indicated
above that our decision will be based on the language of Article 153
of the Penal Code of Peru. For the same reason, we pass by the cases
in which the courts or this Board looked beyond the statute to the
record of conviction. Similarly, the district court decision in

United States en. rel. Mongiovi v. Karnuth, 30 F.2d 825 (W.D., N.Y.,
1929), and those judicial and administrative decisions cited by counsel and the Service, which were based on the language of particular

499

statutory provisions of various States, are not especially helpful in
the respondent's case in which consideration must be given to a provision of the laws of a foreign country.
In Vidal y Planar v. Landon, 104 F. Supp. 384 (S.D. Cal., 1952),
the plaintiff had been convicted of homicide "with a mitigating circumstance." The conviction occurred in Spain in 1924 and the
plaintiff was imprisoned until 1928 when he was pardoned. A man
named de Olmet, who was larger and stronger than the plaintiff,
attempted to choke him and the plaintiff, in order to protect himself,
shot de Olmet without intending to kill him. The court held that
the crime did not involve moral turpitude. The Service cited this
case as authority for the proposition that consideration may be given
to the findings of the court as stated in the judgment rendered. It
was also cited by counsel who contended that the respondent's offense
should be held not to involve moral turpitude because there was not
even the use of a dangerous weapon. The case involved unusual
circumstances, and the court specifically stated that the immigation
authorities had recognized that this was an exceptional case. The
opinion does not set forth the Spanish statutory provision under
which the conviction occurred and, since the law of a different country is involved here, we do not crnsider the decision in the Vidal y
Planar case to be controlling as to this respondent.
Another case involving a conviction for homicide in a foreign
country is Pillisz v. Smith, 46 F.2d 769 (C.C.A. 7, 1931). There,
the alien had been convicted of manslaughter in Hungary where
degrees of manslaughter are apparently not recognized. The court
found that the crime involved moral turpitude and said: "We know
of no greater moral law than that which discountenances the taking
of human life without excuse, and one who violates it is to that
extent morally depraved."
We turn now to a consideration of the provisions of the Penal
Code of Peru. Exhibit 3 contains pertinent parts of the Spanish
text and an English translation. Article 156 provides that a person
who, through negligence, shall cause anyone's death, shall be reprimanded by imprisonment not to exceed 2 years. This appears to be
similar to the offense usually characterized as involuntary manslaughter in the United States. Article 153, which is involved in
this respondent's case, provides: "A penitentiary term not to exceed
10 years, or imprisonment of no less than one year nor more than
5 years, shall be imposed on anyone killing another under the influence of a violent emotion which circumstances may render excusable."
As we have indicated above, the question of whether a foreign
crime involves moral turpitude is to be determined in accordance
with standards prevailing in the United States. It appears appro-

priate, therefore, to consider the definitions of murder and man

slaughter as set forth in 18 U.S.C. 1111 and 1112, even though these
statutory provisions are limited to crimes committed within the
special maritime and territorial jurisdiction of the United States.
Section 1111 defines murder as "the unlawful killing of a human
being with malice aforethought." It further provides that murder
in the first degree is one perpetrated by poison or any other kind of
willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of any arson, rape, burglary, or robbery.
Any other murder is murder in the second degree. 18 U.S.C. 1112
provides, in part, as follows:
(a) Manslaughter is the unlawful killing of a human being without malice.
It is of two kinds:
Voluntary—Upon a sudden quarrel or heat of passion.
involuntary—In the commission of an uniawrui act not amounting to a
felony, or in the commission in an unlawful manner, or without due caution
and circumspection, of a lawful act which might produce death.

Tt will he seen from the foregoing that murder involves the element of malice and that manslaughter does not. However, neither
voluntary nor involuntary manslaughter contains any requirement
that there must have been the intent to kill. As a matter of fact,
where the killing occurred in the perpetration of arson or the other
crimes mentioned in section 1111, a person is guilty of first degree
murder even though there was no intent to kill
We will now compare Article 153 of the Penal Code of Peru

with

the definition of voluntary manslaughter in 18 U.S.C. 1112. The
"sudden quarrel or heat of passion" mentioned in 18 U.S.C. 1112 is
entirely similar to "influence of a violent emotion" in Article 153.
The additional requirement., as indicated in Bishop v. United States,
supra, that the "heat of passion" must have been produced by adequate provocation is equivalent to the requirement of Article 153
that the violent emotion must be excusable because of the circumstances. In view of the foregoing, it is our considered opinion that
a conviction under Article 153 of the Penal Code of Peru is for the
crime known as voluntary manslaughter in the United States and
that the crime involves moral turpitude. Accordingly, we hold that
the first charge is sustained.
The second charge in this case is that the respondent is deportable

because he was excludable at the time of entry under 8 U.S.C.
1182(a) (19) due to having procured his 1956 immigrant visa by
fraud or misrepresentation. In connection with this charge, we have
considered the respondent's case in the light of the Attorney General's decision of October 2, 1961, in Matter of S— and B—C--,
9 S:16, setting forth the rules to be followed in determining whether
a misrepresentation is material. Counsel argued that the offense did
501

not involve moral turpitude and that the respondent's concealment
of the arrest was not material. Since we have concluded that the
crime does involve moral turpitude, the misrepresentation clearly related to a material fact. The record shows that the misrepresentation
was made willfully, and we hold that the second charge is sustained.
Counsel also contended that the respondent is within the purview
of section 7 of the Act of September 11, 1957 [8 U.S.C. 1251a; 71
Stat. 640] relating to aliens who had procured visas by fraud or misrepresentation and who were the spouses or parents of United States
citizens. The respondent has a citizen wife and citizen children.
This statutory provision was repealed by section 24(a) of the Act
of September 26, 1961 [Public Law 87-301; 75 Stat. 650], but was
reenacted in section 10 of that Act in modified form. However,

neither the original nor the amended statutory provision would be of
assistance to this respondent because each required that the alien
must have been otherwise admissible at the time of entry, whereas
this respondent was then excludable on the additional ground, under
8 U.S.C. 1182(a) (9), that he had been convicted of a crime involving moral turpitude.
For the reasons discussed above, the appeal will be dismissed.
In his decision, the special inqu;ry officer adopted the six factual
allegations contained in the order to show cause and a seventh allegation (Exh. 4) lodged at the hearing. Tie also made additional findings of fact numbered 8' to 10, inclusive, and adopted as his conclusions of law the deportation charges set forth in Exhibits 1 and 4.
We adopt the findings of fact and conclusions of law of the special
inquiry officer except that finding of fact numbered (3), which is to
the effect that the respondent "last entered the United States" on or
about May 16, 1956, is amended by deleting the word "last," and
immediately preceding this finding there is inserted an additional

finding (2—A) reading as follows: "The respondent last entered the
United States at San Ysidro, California, on or about January 17,
1960, as a returning resident alien".
ORDER: It is ordered that the appeal be and the same is hereby
dismissed