Interim Decision #2483

MATTER OP DTTORET

In DepOrtation Proceedings
A-19673798

Decided by Board March 5, 1976
(1) An immigration judge has the power in deportation proceedings to grant nunc pro
tune permission to reapply for admission following deportation if it would conclude the
proceedings before him (Matter of Vrettakos, 14 1. & N. Dec. 593).
(2) An order tam-dilating deportation proceedings is a conclusion of the proceedings
within the contemplation of Mattei:of Vrettakos, supra.

CHARGE:
Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry—
section 212(a)(17) [8 U.S.C. 1182(a)(17)]—arrested and deported, no permission to reapply.

ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

James J. Oriels-, Esquire

Paul C. Vincent.

636 Public Ledger Bldg.
Philadelphia, Pa. 19106

Appellate Trial Attorney

In a decision dated May 27, 1975, the immigration judge found the
respondent deportable, denied the respondent's application for a
retroactive, or nunc pro tune, grant of permission to reapply for admission to the United States following deportation, but granted the respondent the privilege of voluntary departure. The respondent has appealed
only from the denial of his application for retroactive permission to
reapply for admission to the United States. The record will be remanded
to the immigration judge.
The respondent is a native and citizen of Venezuela who last entered
the United States in June of 1974, evidently as a nonimmigrant visitor.

Prior to that entry, however, the respondent had been ordered deported from the United States after a hearing held on November 19,
1971. After that earlier order of deportation, the respondent departed
the United States of his own accord. He nevertheless is considered to
have been deported. Section 101(g), Immigration and Nationality Act; 8
CFR 243.5. The respondent therefore required permission to reapply
for admission to the United States in order lawfully to be admitted in
any status.

The respondent did not obtain such permission prior to his last entry,
620

Interim Decision #2483
and he obtained his nonimmigrant visa without informing the consular
official of his prior deportation. The respondent, however, maintains
that he did not realize that he had in law been deported, believing
instead that his self-financed departure was in no way a deportation.
The Service has charged the respondent with deportability under
section 241(a)(1) as an alien who was excludable at entry under section
212(a)(17). Section 212(a)(17) provides in part for the exclusion of
[a]liens who have been arrested and deported, . . . unless prior to their embarkation
or reembarkation at a place outside the United States or their attempt to be admitted
from foreign contiguous territory the Attorney General has consented to their applying
or reapplying for admission[.]

This is the only charge which the Service has brought against the
respondent during the course of the present deportation proceeding.
The respondent sought a retroactive grant of permission to reapply in
order to eliminate as a ground of deportability the charge brought by
the Service. The immigration judge, relying on our decision in Matter of
Vrettakos, 14 I. & N. Dee. 593 (BIA 1973 & 1974), held that he was
without jurisdiction to grant the respondent's applieatinn_ The immigration judge apparently reached this conclusion because the respondent, a
native of the Western Hemisphere, is ineligible for adjustment of
status, and because the alien crewman in Vrettakos was similarly
ineligible for section 245 relief. The immigration judge, however, has
misinterpreted Matter of Vrettakos, supra.
The Board and immigration judges have the power to grant permission to reapply for admission retroactively when appropriate and necessary for the disposition of the case. See 8 CFR 3.1(d); 8 CFR 242.8(a).
See generally Matter of S—N—, 6 I. & N. Dec. 73 (BIA 1954; A.G. 1954).
In Vrettakos we indicated that a retroactive, or wane pro tune, grant of
permission to reapply for admission to the United States "would be
within the scope of an immigration judge's authority if it would conclude
the proceedings before him." We then noted that: .
This might be true in the case of an alien in deportation proceedings (1) whose sole
ground of deportability is under section 241(a)(1) of the Act, as an alien excludable at
entry under section 212(a)(17) for reentering the United States after deportation without first securing the permission of the Attorney General; or (2) who seemingly qualified
for adjustment of status under section 245 of the Act, except for his inadmissibility as an
alien who was deported.

We thus set forth two situations in which an immigration judge has
the power in deportation proceedings to grant an alien's application for
permission to reapply for admission: (1) where the only ground of
deportability would be eliminated; and (2) where the alien would receive
a grant of adjustment of status in conjunction with the grant of any
appropriate waivers of inadmissibility. See 8 CFR 245.1(f); 8 CFR
242.17(a).
621

Interim Decision #2483
In Vrettakos, the alien was not charged under section 241(a)(1) as that
section relates to section 212(a)(17). He was charged with deportability
under section 241(a)(2), on the ground that he was a crewman who had
entered the United States after being refused permission to land temporarily. A mow pro tune grant of permission to reapply could not have

cured that ground of deportability. As a crewman, he was also ineligible
for adjustment of status and hence could not avail himself of that relief.
A grant of permission to reapply for admission could not help in any way
to conclude the proceedings against him.
However, in this case we hive a deportation proceeding in which the
sole ground of deportability is based on section 241(a)(1) as that section
relates to section 212(a)(17). A grant of permission to reapply for admission, retroactive to before the respondent's last entry, would eliminate
the section 212(a)(17) ground of inadmissibility, and would render the

respondent not deportable on the only charge now pending against him.
On the present state of the record, the proceedings would then be
terminated in favor of the respondent.
The Service, however, argues that this would not "conclude the
proceedings," within the contemplation of Vrettakos because the respondent would remain deportable on several other charges. The short
answer to this contention is that no other charges of deportability have
been made against the respondent nor are they clearly established by

the present record. Neither the Board nor an immigration judge may
make a specific finding of deportability against an alien in the absence of
an appropriate charge and proof. In general, we should not be required
to speculate as to other possible grounds of deportability, even though
such grounds are likely to exist in this case.
We hold -Id an order terminating proceedings is a conclusion of the
proceedings within the contemplation of Yrettakos. Such a disposition
of the case is sufficiently final to invoke our authority and the authority
of an immigration judge to make a retroactive grant of permission to
reapply for admission to the United States. The immigration judge

therefore erred in concluding that he had no jurisdiction to grant the
relief requested by the respondent.
We have determined that jurisdiction presently exists to entertain
the respondent's application for retroactive permission to reapply for
admission. This does not end the inquiry, however, because a question
as to the exercise of discretion remains. As with other forms of discretionary relief, an alien respondent bears the burden of showing that he
merits a favorable exercise of discretion on an application for permission
to reapply for admission. Evidence indicating that a respondent would
be otherwise deportable or inadmissible can be considered by the immigration judge on the question of discretion, even if the Service specifically declines to charge the respondent in this regard.
622

Interim Decision #2483
We shall remand the record to the immigration judge for further
proceedings. On remand, the Service will have the opportunity to lodge
additional charges against the respondent. In the event that an additional
charge is both lodged and established, the immigration judge will no
longer have jurisdiction to grant the respondent's application.
Counsel evidently seeks to avoid this possibility by having us determine the issue of discretion. The record, however, is incomplete as it
relates to the favorable or unfavorable factors which would affect our
exercise of discretion. Little evidence in this connection was introduced
below because of the immigration judge's jurisdictional resolution of the
respondent's application_ For example, a strong inference can be drawn
from certain facts in the record that the respondent is presently an
"overstayed visitor," and deportable on that ground. However, this
point was not developed below.
The record does not now contain sufficient information on which we
could base an exercise of discretion.
ORDER: The record is remanded to the 'immigration judge for
further proceedings.

623


Interim Decision #2748

MATTER OF CANTU
In Deportation Proceedings
• A-20554647
Decided by Board October 19, 1978
Decided by Attorney General December 18, 1978
(1) There is no basis in the legislative history or judicial construction of the Citizenship
Clause of the Fourteenth Amendment to the United States Constitution for the view
that territory of which the United States is the sovereign can be deemed removed from
its jurisdiction for purpose of the Citizenship Clause.
(2) It is the presence within and the personal relationship to the United States of a

newborn child's parents that determines whether he was born "subject to the jurisdiction [of the United States]" and without more became a citizen.
(3) Since the birth of the respondent occurred in territory of which the United States
was then the sovereign, since the birth occurred prim to the territory being transferred to Mexico, and since the respondent's parents did not fall within any of the
exceptions to the rule of jus soli noted in United States v. Wong Kim Ark, 169 U.S. 649
(1898), the respondent became a citizen of this country at the moment of his birth.
CHAR=
Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained
longer than permitted
ON BEHALF OF RESPONDENT:
Laurier B. McDonald, Esquire
600 South Closner Avenue
P.O. Drawer 54

ON BEHALF OF SERVICE

George Indelicate
Appellate Trial Attorney

Edinburg, Texas 78539

BEFORE THE BOARD
(October 19, 1978)
Br: Milhollan, Chairman; Appleman, and Farb, Board Members. Dissenting Opinion,
Maniatis, and Maguire, Board Members

This case is before tie upon certification by an immigration judge,
who found the respondent deportable under the above charge.
The respondent is a 42-year-old male who was admitted to the
190

Interim Decision #2748

United States at Hidalgo, Texas, on May 12, 1972, as a temporary
visitor alien for 3 days. It is conceded that he has remained longer than
authorized. If alienage has been established, then he is clearly deportable as charged.
The pertinent facts are set forth in part in an oral stipulation made
to the immigration judge.' The respondent was born in an area known
as the "Horcon Tract," at the Texas-Mexico boundary, on August 25,
1935, to parents who were both natives and citizens of Mexico.z That
portion of the "Horcon Tract" in which he was born is now part of the
township of Rio Rico, Tamaulipas, Mexico. Geographically the "Horcon Tract" is in the lower half of a reverse S curve of the Rio Grande

River, the international boundary between the United States and
Mexico. For purposes of this case the upper half of the S curve was
always Mexican territory and the lower half originally was part of the
United States (see Map, Ex. 2 Appendix I). In 1906, the Rio Grande
Land and Irrigation Company, a private concern, unlawfully changed
the course of the river by making a cut-off to prevent the river from
changing its course naturally so as to adversely affect the company's
irrigation activities. The diversion had the effect of cutting off the

lower half - of the S curve, thus placing the "Horcon Tract" on the
Mexican side of the river. (See Map Ex. 2 Appendix I). Thereafter, in

the language of the stipulation, the United States "totally refrained
from exercising jurisdiction over the aforesaid Sorcon Tract'."
The International (Water) Boundary Commission found the company's action to be in violation of the Convention of 1884 between the
United States and Mexico. It further found that the artificial diversion
of the river did not change the preexisting boundary. In 1911, the
United States, in combination with private Mexican citizens, insti -.

tuted a suit in equity against the company, resulting in payment of
penalty to the United States for its illegal action, and damages to the
private parties for claims arising from the diversion.

It has been stipulated that the "Horcon Tract," notwithstanding the
diversion, continued to be United States territory until the signing of a
treaty between the United States and Mexico on November 23, 1970,
designed to resolve pending boundary differences. Under the treaty,
which became effective in 1972, the United States ceded the "Horcon
Tract" to Mexico.
It has been further stipulated that the town of Rio Rico was founded
' A more definitive stipulation would have been helpful. However, the record is
supplemented by exhibits which give a clearer picture.
He thus acquired Mexican citizenship at birth under Article 40 of the Political

constitution of Mexico of 1917, Matter of Quintanilla-Montes,13 MN Dec. 508 (MA 1970).
It is conceded by the Government that if he was a United States citizen at birth, he never
expatriated. See Service Brief on Appeal, Page 4. He would thus be a dual national.
191

Interim Decision #2748
in 1929 in Tamaulipas, Mexico, wholly within the upper half of the S
curve, in Mexican territory_ Thereafter, as a result of floods that
eroded the town, it gradually moved southward until by the 1940's it
had crossed the abandoned bend of the Rio Grande and encroached

into the "Horcon Tract" on the United States side of the river. Eventually about two-thirds of the town was in United States territory, and
one-third still in Mexican territory.
From the time that the town of Rio Rico was established in 1929, it
has had Mexican policemen on duty, the public schools are maintained
by the Republic of Mexico or some political subdivision of it, such roads
as there are, are maintained by Mexican authorities, and "the residents of the area abide by Mexican conscription laws which were in
effect in their area" (Tr. p. 13). Births and deaths in the township were
recorded, as in the case of the respondent, at the office of the Civil
Registry at Matamoros, Mexico. The respondent himself complied with
the conscription laws of Mexico. However, at the time the respondent
was born in the "Horcon Tract," the town of Rio Rico had not yet
expanded into that area where he was born, although the township
later included the place of his birth'
Lastly, it was stipulated at the hearing that the International Bridge
between Thayer, Texas, across the Rio Grande, to the original location
of Rio Rico, was carried away by a flood in 1941 and since then there
has been no practical means of direct access between that part of Texas
north of the river and the "Horton Tract."'
The stipulated facts are corroborated and supplemented by an appendix to Exhibit 3, respondent's Brief below. The appendix is a
scholarly treatise which appeared in the Rocky Mountain Social Science Journal, entitled El Horcon: A United States-Mexican Boundary

Anomaly, by James E. Hill, Jr.5 From it we learn that the court action
instituted in 1911, occurred after the matter was reported to the
Mexican Secretary of Foreign Affairs, and that the suit was by the
United States Department of Justice, at the instigation of the United
States Department of State. The bridge at Thayer, Texas, was built in
1929 and the town of Rio Rico was established at its south end. There

was heavy traffic across the bridge during prohibition in the United
See Tr. p. 23. This is according to a statement of counsel, made at the hearing during
the oral stipulation, which was not opposed by the Immigration and Naturalization
Service trial attorney, and which appears to be part of the stipulated facts.
' It will be noted that even prior to that, in the period between 1906 and 1941, to reach
the Horcon Tract from the Unitid States, it was necessary to proceed across the Mexican
territory in the northern loop and to reeruee the abandoned bed of the Rio Grande River
at its middle bend. The international line would actually be crossed twice.
The exact date of publication is not set forth, but judging from the footnotes it was
subsequent to 1965.

192

Interim Decision #2748
States, and a considerable influx of tourists was attracted by dog
racing. As of the date of the article there was one official, a police
inspector, and the police station, school, church, and plaza, all were
located on United States soil, although the entire town was deemed
within Tamaulipas, Mexico. Area residents had no knowledge of the
presence of an international boundary line and only one monument
marking the abandoned channel of the Rio Grande was still standing.
The boundary was poorly delineated and even passed through some of
the houses in Rio Rico. Officials in Hidalgo County, Texas, were not

aware that the Horcon Tract was a part of the county. The county tax
office taxed nothing south of the river, county law enforcement

agencies had no jurisdiction in the area, and the county representative
of the United States Department of Agriculture had no control over
agricultural policies in the "Horcon Tract." A Mexican public road
crossed the tract, one-quarter mile of it in United States territory.
Appendix 3 to Exhibit 2 is the Senate Report on the Treaty signed on
November 23, 1970.' The Letter of Submittal from the Department of
State to the President notes that under the convention of 1884 the

"Horcon Tract" belonged to the United States, that a wilful and illegal
relocation of the river took place in 1906, and that "In view of the
exceptional origin and situation of the detached tract, the United.
States, at Federal, State, and local levels, has refrained from exercising jurisdiction over it." Article I F(2) of the treaty states that the
"Horcon Tract" now under the sovereignty of the United States shall
pass to and become part of the territory of Mexico." Article VI B states
that the transfer "shall not affect in any way (1) the legal status with
respect to citizenship laws, of those persons who are present or former
residents of the portions of the territory transferred."

It is clear that the respondent's citizenship status must be determined in light of the law, and possibly, the facts, existing at the time of
his birth in 1935 in the "Horcon Tract."
Respondent's claim to citizenship is founded on section 1 of the
Fourteenth Amendment to the Constitution, "All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they
reside," and section 1992 of the Revised Statutes, Act of April 9, 1866, 8
U.S.C. 1, section 1, 14 Stat. 27, "All persons born in the United States
and not subject to any foreign power, excluding Indians not taxed, are
declared to be citizens of the United States."
' It was ratified by the Senate on November 29, 1971, and entered in force on April 18,
1972.

Section 1992 was repealed by section 504 of the Act of October 14, 1940 (54 Stat. 1173),
which deleted the language "and not subject to any foreign power," and substituted "and
subject to the jurisdiction thereof." The latter language was carried over into the
193

Interim Decision #2748
The Government concedes that the respondent was "born in the
United States within the meaning of the Fourteenth Amendment."
However, it challenges his assertion that he was also "subject to the
jurisdiction thereof," the second prerequisite for United States citizenship at birth.
Before examining the meaning of these words it might be well to
establish the burden of proof. This is a deportation proceeding. The
overall burden is on the Government.to prove its case by clear, convincing, and unequivocal evidence, Woodby v INS, 385 U.S. 276 (1966).
Alienage is jurisdictional. The respondent has denied alienage and has
clearly established that he was born in United States territory. The

burden of proving a defense would normally be on the one asserting the
defense. Here, however, the respondent has not merely denied
alienage, and asserted citizenship, he has proved he was born in this
country. Since, with rare exceptions, persons born in United States
territory are United States citizens at birth, it is clear that the burden
is on the Government to show that he is in fact an alien. Nishikawa v.
Dulles, 356 U.S. 129, 133, 2 L.Ed. 2d 659, 663 (1958).

As a corollary, the respondent does not have to establish that he is,
beyond any challenge, a United States citizen. If the Government has
not satisfactorily established alienage, that would end this deportation
case. So far as this Board is concerned the task before us is solely to
determine the outcome of this deportation proceeding. Either the
Government has established, by the requisite burden of proof, that the
respondent is an alien, or it has. not; if it has not, it is not incumbent
upon this Board to go the additional step of determining whether he is
also a citizen. That determination can be left to some future date and
some other process.
Section 1 of the Fourteenth Amendment, and more particularly the
clause "subject to the jurisdiction thereof" has acquired some judicial
gloss. In the Brief in Support of Respondent's Motion to Terminate the
Proceedings, our attention has been directed to United States v. Wong
Kim Ark, 169 U.S. 649 (1898) That case held that one born in San
Francisco, of parents who were of Chinese descent and subject to the
emperor of China although domiciled in the United States was a
citizen of the United States and not excludable despite the fact that his
employment would otherwise have brought him within the terms of
the then existing Chinese exclusion laws. The Schooner Exchange v.
Immigration and Nationality Act of 1952. (8 U.S.C. 1401). The language "and not subject
to any foreign power," appearing in sectiot 1992 must be deemed to have the same
meaning as "subject to the jurisdiction thereof" as it appears in the Fourteenth Amend
ment and in the later statutes. No judicial interpretation has been cited giving a
different meaning, nor would it appear that any statutory act could diminish, lawfully,
the constitutional definition.

194

Interim Decision 112748

M'Faddon, et al., 7 Cranch 116, (1812), a ease involving an attempted
exercise of United States jurisdiction over a public vessel of a friendly
sovereign power in a United States harbor. There Chief Justice Marshall enunciated the rule that territorial jurisdiction is exclusive in the
sovereign. However, where another sovereign enters with consent and
license, the dignity of the foreign sovereign and the object for which
the license is granted may equally require that the one obtaining the
license shall have full security, and an exemption may exist.

In United States v. Rice, 4 Wheat. 246, 4 L.Ed. 562 (1819) the exemption was extended to United States territory occupied by hostile enemy
forces. The children of occupying enemy aliens have been held not born
"subject to the jurisdiction" of the United States during such occupation, since at the time of birth they did not derive protection from, and
consequently did not owe obedience or allegiance to the United States.
Inglis v. Sailor's Snug Harbor, 28 U.S. (3 Pet.), 99, 145-188 (1830).
Similarly those born within the Indian. tribes in the United States,
owing allegiance to their tribes rather than to the United States
Government according to practices dating from the founding of this
country, under which they were deemed citizens of the United States
only under explicit provisions of a treaty or statute to that effect, were
not born "subject to the jurisdiction" of this country within the meaning of the first section of the Fourteenth Amendment—any more than
the children born within the United States of ambassadors or other
public ministers of foreign nations, Elk v. Wilkins,112 U.S. 94, 28 L.Ed.
643 (1884). Elk v. Wilkins recognizes the possibility that other exemptions might be implied from future facts.
Unfortunately, none of the cases cited deal with the issue raised in
this case. That the Fourteenth Amendment is a living organism which
can accommodate itself to future courses of human behavior and
embrace additional categories of exemption, as argued by the Government, is not unreasonable. Clearly, the United States can, under appropriate circumstances and by suitable means, expressly relinquish the
exercise of sovereignty over a given area. Lastly, well established
custom and usage, as in Inglis v. Sailor's Snug Harbor, and Elk v.
Wilkins, supra, can also dictate recognition of an exemption.
However, the question of an implied relinquishment is a far different matter. Our attention has been directed to no law that permits a
foreign Government to exercise exclusive jurisdiction over United
States territory—and certainly to none applicable to the "Horcon
Tract" prior to 1972. The accepted constitutional method to convey
territory and with it to surrender, or acquire, jurisdiction, is by treaty
ratified by the Senate, as occurred here. Can either the Federal executive, or the inhibitants of a part of the United States, unilaterally
divest themselves of the duties and obligations stemming from United
195

Interim Decision #2748
States sovereignty over an entire arear Surely this nation fought a
terrible and bloody Civil War to prove the contrary.
The words "subject to the jurisdiction thereof," like the language
"completely subject" and "owing allegiance" to the United States used
in Elk v. Wilkins, supra, embody concepts which may exist independently of physical action. For example, it is conceivable that the United
States Government may never have exercised jurisdiction over some
remote area of the United States in Alaska, or in the Great Smoky
Mountains, perhaps for lack of knowledge of its existence, or perhaps
just because of remoteness and difficulty of access. It could hardly be
argued on that basis alone, that that area was not "subject to the
jurisdiction" of this Government. A more reasonable interpretation of
the phrase "subject to the jurisdiction" is that it connotes a duty or
obligation on the part of both Government and those domiciled in
United States territory. On the one hand the Government owes the
duty of protection, or the grant of benefits and rights available to other
citizens, and on the other the citizen owes the duties which every
citizen owes to this Government if and when he is called upon to
perform them. That the debt may not have been called in, does not
mean it does not exist. In essence this case poses the question whether
a non exorcise of rights and duties on the part of either the Government or those domiciled in United States territory, if coupled with the
performance of otherwise illegal acts by and for another sovereign, is
enough in itself to bring about a change in citizenship.
Even if, arguendo, the answer is in the affirmative, still another
question must be answered. At what point in time would "non-action"
lead to a change in citizenship status? From 1884 on, the Horcon Tract
was clearly a part of the United States. Whatever lack of attention was
paid to this small and remote area prior to 1906, there is little question
that those born in it were citizens of the United States before that
year. Why then is there an issue as to their citizenship thereafter? It
arises because there was a gradual usurpation, or acceptance (depending on the point of view), of local Mexican jurisdiction as a result of
various accidents of local geography. This continued in various degrees
over some 60 odd years..
However, the Mexican town of Rio Rico did not even come into
existence until 1929. It was created on Mexican land, at the Mexican
end of the then existing international bridge. It did not expand over
the abandoned bend of the Rio Grande River into the United States
"Horcon Tract" until land erosion forced its southward migration. But
the respondent was born in the "Horcon Tract" in 1325. As of some
.

-

° One must distinguish here an individual's voluntary divestiture of citizenship after
birth authorized by statute, see Afroyim v. Rusk, 387 U.S. 253 (1967).
196

Interim Decision #2748
later date, the part of the present town where the respondent was born
had a Mexican police official, church, birth records, Mexican Army
conscription, and even one-quarter of a mile of Mexican road—but
there is nothing to indicate when all this came about.

As of the date that the respondent was born,. the town did not yet
include the place of his birth. It is most unlikely that all of these
"indicia" of Mexican sovereignty would have shown themselves in the
brief period between 1929, when the town was founded, in Mexico, and
1935, when the respondent was born. There is no showing that the
United States Government even knew of these encroachments on its
territory, or, if it did know, when it learned about them. It has not been
shown that, having learned about them at a time prior to the respondent's birth, it acquiesced in them to the point of renouncing the right to
assert its sovereignty.
Thus, apart from the very formidable legal obstacle of whether a
non-acquisition of citizenship can be based on a circumstantial "implication" of renunciation of sovereignty, there is a lack of evidence
establishing by the requisite burden of proof that there was any such
"implied" renunciation or consent by the United States Government.
In summary, with respect to the crucial period in 1935 when this
respondent was born, there had been neither a formal assumption of
sovereignty by Mexico nor a formal renunciation of sovereignty by the
United States. The Government case depends on an unauthorized
assumption of authority by Mexico, allegedly impliedly recognized and
acquiesced in by the United States Government, and constituting the
equivalent of consent to exemption from sovereignty.' We have difficulty with this in the face of the clear assertion in the treaty that
sovereignty was still in the United States. Nor does the language in the
Department of State's Letter of Submittal of the treaty to the President, "in view of the exceptional origin and situation of the detached
tract, the United States at Federal, State, and local levels, has
refrained from exercising jurisdiction over it," dictate a contrary
finding. The intimation is that jurisdiction was not exercised because
of fear of causing an international incident or disturbing international
harmony. One reading of this is that the United States, as late as 1970,
felt that it could have exercised its rights of jurisdiction at any time
had it chosen to, but that it was content to leave matters in status quo.
To put the extreme—that this country would not have been disposed to
go to war with Mexico because of encroachments within the "Horton
Traet" dnes not necessarily warrant the conclusion that the United
—

' Somewhat paradoxically the Government is urging the loss of its sovereignty. One
can readily envisage the United States taking a diametrically opposite position on a
different set of facts.
197

Interim Decision #2748
States either deemed the encroachments legal, or had surrendered its
of sovereignty. The question must be posed, if, as of 1935, the
United States Government had demanded that those born and
rights

domiciled in the "Horcon Tract" pay taxes to this country, or otherwise

perform the duties of citizenship, they could have legally and rightfully refused. By the same token, it has not been shown that if such a
person had been conscripted into Mexico's army and refused to serve
on the ground that he was a United States citizen, that he might not
have been able to have this Government intervene in his behalf.'°
It is not without significance in the overall consideration of this case
that the renunciation of sovereignty, when it did occur, was part of a
treaty between the United States and Mexico to resolve boundary
differences and disputes, and further, that that treaty required the
advice and consent, and, ultimately, the ratification of the Senate. All
this was a futile exercise if our country had clearly relinquished, as far
back as 1935, its rights of sovereignty.
Lastly, we do not see any failure to act by the United States Government officials creating an estoppel on the facts of this case, as urged by
the respondent, nor do we view the respondent as estopped by reason of
his inaction in asserting a right to citizenship. As to the former, the
United States did not affirmatively act to mislead the respondent into a
misconception of his position —Hibi v. INS, 414 U.S. 5 (1973); as to the

latter, it would appear that there is at least a possibility that until
recent date he had no knowledge of what rights he might have had as a
citizen. Even assuming an outward failure to exercise jurisdiction, a
fact which was stipulated, this does not mean the area was not "subject
to the jurisdiction" of the United States for the reasons stated.
It is concluded that the Service has failed to establish alienage.
ORDER: It is ordered that the proceeding be terminated.
DISSENTING OPINION:

Louis P. Maniatis, Board Member

I must respectfully dissent as I find that the respondent's deportability has been established by clear, convincing, and unequivocal
evidence.
The sole issue before us is whether this respondent, by virtue of his
birth in the Horcon Tract' on August 25, 1935, falls within the cate" That this respondent did serve is not significant. His service occurred after the date
of his birth in 1935 and was not expatriative in effect, as conceded. In any event there is
serious question whether he was not obligated to serve as a Mexican citizen at birth. See
Note 2.

The circumstances underlying the creation of the Horcon Tract in 1906 are set forth
by the majority and need not be restated here. The history of this tract of land
subsequent to 1906, however, will be further developed infra.

198

Interim Decision #2748
gory of persons declared to be citizens in section 1 of the Fourteenth
Amendment to the Constitution of the United States. That section
reads in relevant part:
"Section 1. All persons born . in the United States, and subject to thezfuris'diction
thefeof, are citizens of the United States and of the state wherein they reside." (Under
scoring supplied.)

If the respondent derived citizenship at birth under this section, then
the deportation proceedings must clearly be terminated. If he did not,
however, then it is equally clear (and the respondent so concedes) that
he is deportable as charged.
The immigration judge found that the grant of citizenship in this
section of the Fourteenth Amendment attaches only to those persons
who are both born within United States territory and born subject to
its jurisdiction. He concluded that although this respondent was born
within United States territory, he did not derive citizenship thereby
because he was not subject to the jurisdiction of this country at the
time of his birth. He, therefore, found the respondent deportable as
charged. I must concur with the immigration judge's conclusion.
The issue of the respondent's citizenship is most reasonably resolved
by addressing three underlying questions. The first relates to the
words "and subject to the jurisdiction thereof" in section 1 of the
Fourteenth Amendment. Do these words of limitation refer only to the
three categories of persons found not to acquire citizenship at common
law even though born within the King's realm, as argued by the
respondent, or are they sufficiently expansive to encompass other
categories of persons not subject to the jurisdiction of this country at
birth either because of the sovereign's choice or otherwise? Secondly,
assuming the latter construction to be correct, are there circumstances
under which the United States has the sovereign authority to remove
from within its jurisdiction, expressly or impliedly, a particular tract
of its own territory so as to defeat subsequent claims of citizenship by
those born therein? Finally, assuming that the United States could do
so, has it been established as a factual matter that prior to the
respondent's birth, this country elected to waive its jurisdiction over
the Horcon Tract.

I. Construction of the words ".. . and subject to the jurisdiction
thereof ..." in Section 1 of the Fourteenth Amendment
The respondent admits that the specification of citizenship in section
1 of the Fourteenth Amendment is founded on the dual requirement of
This Constitutional declaration of citizenship is incorporated in the Immigration and
Nationality Act of 1952 at section 301(a)(1), 8 U.S.C. 1401(a)(1).
1 Qt)

Interim Decision #2748
birth within United States territory and birth "subject to the jurisdiction thereof." He maintains, however, that these cited words of limitation were placed in the Fourteenth Amendment only so as to incorporate an exclusion of three fixed categories of persons who were
denied jus soli citizenship at common law even though born within the
territory of the sovereign (i.e., children born of diplomatic representatives of a foreign state; children born of alien enemies in hostile
occupation; and, children born of aliens on foreign warships in the
sovereign's domain). The respondent submits that the words "and
subject to the jurisdiction thereof" were used simply as an abbreviated
method of excluding from jus soli citizenship these three, and only
these three, categories of persons. I . find this construction overly
restrictive, however, in view of the common law origins of these words
and their subsequent interpretation by judicial authorities.

Justice Story ably summarized the common law principles underlying the acquisition of jus soli citizenship in his separate opinion in
Inglis v. Sailor's Snug Harbor, 28 U.S. (3 Pet.) 99, 145-188 (1830),
wherein he stated;
The rule commonly laid down in the books is that every person who is born within the
ligeanee of a sovereign is a subject; and, e converso, that every person born without
such allegiance is an alien. This, however, is little more than a mere definition of
terms, and affords no light to guide us in the inquiry what constitutes allegiance, and
who shall be said to be born within, the allegiance of a particular sovereign; or, in other
words, what are the facts and circumstances from which the law deduces the conclusion of citizenship or alienage. Now, allegiance is nothing more than the tie or duty of
obedience of a subject to the sovereign under whose protection he is; and allegiance by
birth is that which arises from being born within the dominions and under the
protection of a particular sovereign. Two things usually concur to create citizenship;
first, birth locally within the dominions of the sovereign; and second, birth within the
protection and obedience, or in other words, within the ligeance of the sovereign. That
is, the party must be born within a place where the sovereign is at the time in full
possession and exercise of his power, and the party must also at his birth derive
protection from, and, consequently, owe obedience or allegiance to, the sovereign, as
such, de facto.

Inglis at 155. Meeting the dual requirements of birth within the sovereign's dominions and birth subject to his jurisdiction was necessary
for
though at common-law nationality or allegiance in substance depended upon the place
of a person's birth, it in theory at least depended, not upon the locality of a man's
birth, but upon his being born within the jurisdiction and allegiance of the King of
England ...

It was generally true of course that one born within the sovereign's
territory was concomitantly born subj ect to his jurisdiction. Certain
exceptions (those cited by respondent) did arise. Those exceptions,
'Dicey, Digest of the Law of England with Reference to the Conflict of Laws (1896), as
cited in United States v. Wong Kim Ark, 169 U.S. 649, 658 (1897).

200

Interim Decision #2748
however, served to "illustrate and confirm"' the general doctrine that
birth within the King's realm did not by itself guarantee the acquisition of British citizenship.
It was this general common-law doctrine that was incorporated into
the Constitution by the framers of the Fourteenth Amendment. The
fact that the Fourteenth Amendment incorporated the doctrine itself
(rather than just the three common-law exceptions thereto) is readily
apparent from an early Supreme Court interpretation of the language
of that Amendment. In Elk v. Wilkins, 112 U.S. 94 (1884) the Court,
applying the common-law doctrine that birth within the realm alone
did not insure citizenship, found an additional category of persons
who, though born within United States territory, did not acquire jus
soli citizenship because they were not born "completely subject to (the)
political jurisdiction (of the United States) and owing them direct and
immediate allegiance."5 This decision clearly could not have been
reached if only those three categories of persons denied jus soli citizenship at common law could be denied such citizenship under the
Fourteenth Amendment. The Elk decision precludes a finding that the
language of that Amendment is as restrictive as urged by respondent
and directs instead an interpretation which incorporates into the
Constitution the common-law doctrines underlying acquisition of jus
soli citizenship.
The respondent cites in support of his position

a Supreme Court
decision, occurring 14 years after Elk, namely, United States v. Wong
Kim Ark, supra. In Wong Kim Ark,169 U.S. at 682, Justice Gray wrote
for the majority:
The real object of the 14th Amendment of the Constitution, in qualifying the words,

'all persons born in the United States,' by the addition, 'and subject to the jurisdiction
thereof,' would appear to have been to exclude, by the fewest and fittest words (besides
children of members of the Indian tribes, standing in a peculiar relation to the
national government, unknown to the common law), the two classes of cases children
born of alien enemies in hostile occupation, and children of diplomatic representatives
of a foreign state—both of which, as has already been shown by the law of England,
and by our own law, from the time of the first settlement of the English colonies in
—

America, had been recognized exceptions to the fundamental rule of citizenship by

birth within the country.

This language, however, must be read in the context of the issue then
before the Court wherein it was asserted that the limiting words of the
Fourteenth Amendment should be interpreted to exclude from United
States citizenship categories of persons who were born in a place where
' Inglis v. Sailor's Snug Harbor, supra at 155.
In Elk, the court rejected the citizenship claim of an American Indian who was born

within the United States and subsequent to birth "surrendered" himself to its jurisdiction. Later events negated the effect of this decision but not its rationale.

201

Interim Decision #2748
the United States was in full exercise of its jurisdiction and who would
not have been denied citizenship under the general common-law doctrines discussed above.' The Court rejected this position. Within this
context, Justice Story's opinion is appropriately read as affirming that

the common law doctrines regarding the acquisition of jus soli citizenship were incorporated into the Constitution by the Fourteenth
Amendment but that no expansion of those doctrines was intended by
the framers of that Amendment. The Court's reference in Wong Kim
Ark to Elk v. Wilkins, supra, supports a conclusion that the quoted
words cannot be read as a statement that only those exceptions to the
general doctrines arising at common law were incorporated into the
Constitution. Instead, it was acknowledged that other circumstances
"unknown to the common law" might arise where persons would be
born within the territory of the United States without acquiring its
citizenship.
I conclude, therefore, that the words "and subject to the jurisdiction
thereof" in the Fourteenth Amendment cannot be interpreted as
restrictively as the respondent urges but must instead be read as
incorporating into the Constitution the general doctrines under which
one could acquire jus soli citizenship at common law. Thus, the question must be addressed of whether the United States has the sovereign
power to remove an area of its territory from within its jurisdiction so
as to defeat a claim of jus soli citizenship by one subsequently born
'within that territory.
II. Sovereign's Authority to Withhold the Exercise of Jurisdiction over an Area of its Territory
The right of the United States to withhold its jurisdiction over a
tract of its territory was initially raised in the respondent's brief
before the immigration judge wherein he asserted that the United

States engaged in "affirmative misconduct" when it refused to exercise
jurisdiction over the Horcon Tract. "Indeed," it was submitted, "the
failure of the Federal Government to exercise its functions of political
jurisdiction within the 'forma Tract has been a serious breach of duty
on the part of the government, and (the) Respondent ... certainly
should not be penalized ... because of the government's refusal to
exercise jurisdiction within the Horcon Tract since the year 1906."
Such argument perforce assumes that the United States has no legitimate authority to restrict its jurisdiction over an area of its territory. I
As Chief Justice Marshall noted in Cams v. Virginia, 19 U.S. (6 Wheat-) 264, 399
(1821):
It is a maxim not to be disregarded, that general expressions, in every opinion, are to
be taken in connection with the case in which those expressions are used.
202

Interim Decision #2748
cannot concur in this underlying assumption.
The principles which control here were enunciated by Chief Justice
Marshall in 1812 in what has been called "the great case of The
Exch-ange."' He stated there in that:
The jurisdiction of the nation within its own territory is necessarily exclusive and
absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon
it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the
same extent in that power which could impose such restriction.
All exceptions, therefore, to the full and complete power of a nation within its own
territories, must be traced up to the consent of the nation itself. They can flow from no
other legitimate source.
This consent may be either express or implied. In the latter case, it is less
determinate, exposed more to the uncertainties of construction; but, if understood, not
less obligatory.
The world being composed of distinct sovereignties, possessing equal rights and
equal independence, whose mutual benefit is promoted by intercourse with each other,
and by an interchange of those good offices which humanity dictates and its wants
require, all soveteigus have consented to a relaxation in practice, in caeca under
certain peculiar circumstances, of that absolute and complete jurisdiction within their
respective territories which sovereignty confers.

In applying these general principles to the facts before it, the Court in
The Exchange concluded that the United States had impliedly agreed
that foreign armed vessels which entered its ports in peace would be
"exempt from the jurisdiction of this country." The United States
retained the ultimate sovereign power to destroy this exemption, but
while it existed no jurisdiction over such vessels could be said to
remain with the sovereign. From this exemption in turn arose the fact
that children born abroad such vessels, even while within United
States territory, are not considered to be born in a place subject to the
jurisdiction of' this nation and, hence, acquire no jus soli citizenship.
These underlying principles' apply with equal force where the
United States desires for reasons of international relations' to
withhold the exercise of its jurisdiction over a small area of its territory which through unusual circumstances no longer falls within its
natural international border. Thus, contrary to the majority, I find
' The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch.) 116, 136 (1812).
These principles relate solely to the authority of a sovereign nation to withhold the
exercise of complete and absolute jurisdiction within its territories. They are directly
contra to the premise (and it is certainly not submitted by the immigration judge or
herein) that any corresponding right exists with inhibitants of a territory to "unilaterally divest themselves of the duties and obligations (to the sovereign)." Majority at page S.
' The respondent, through counsel, submits that the refusal to exercise jurisdiction by
the United States resulted from the "fear of causing an international riff" and the "fear
of disturbing the international harmony with Mexico." Brief before the immigration
judge at 7.

203

Interim Decision #2748
that the United States does not have the legitimate sovereign authority to restrict its jurisdiction in such a manner. The issue is not merely
whether jurisdiction has in fact been exercised over a given place (e.g.,
a "remote area of the United States in Alaska . . . or in the Great
Smoky Mountains.") as circumstances could arise where the failure
to act was unintentional and no diminution of jurisdictional control
was contemplated. Instead, the determinative question must be
whether the United States (either expressly or impliedly) during the
relevant time period intentionally elected to divest itself of its jurisdiction over a designated area. If such an election was made, then I would
conclude that persons born therein (just as those born on foreign
warships or born to foreign diplomats) could not be said to be born
"subject to the jurisdiction (of the United States)" within the meaning
of those words in section 1 of the Fourteenth Amendment. Thus, I find
that the question must be addressed whether the United States intended to, and in fact did, divest itself of its jurisdictional control over
the Horcon Tract prior to this respondent's birth in 1935.
III. Exercise of Jurisdiction by the United States over the Horcon Tract
I find that the evidence overwhelmingly establishes that the United
States had elected to withhold its jurisdiction over the Horcon Tract at
the time of this respondent's birth." In this regard, one need look no
fUrther than the stipulations of the parties'' and the respondent's brief
" Majority opinion at page 8.
" The majority's discussion of the factual issues is premised on the erroneous conclusion that the Government case depends on a showing that the United States surrendered
its "rights of sovereignty" over the Horcon Tract to Mexico prior to the respondent's
birth. The majority finds that such a showing was not made because the 1970 treaty
indicates that sovereignty was transferred therein and because that treaty would have
been a "futile exercise" if.the "rights of sovereignty" had already been relinquished.

They further pose the question: Could the United States have reaffirmed its jurisdictional control over the tract prior to the respondent's birth?
This analysis confuses the 'ultimate power of a nation to exercise full and complete
jurisdiction within its territory with its coexisting power to consent to a relaxation in
practice of that absolute and complete jurisdiction. It is not submitted that the ultimate
"right of sovereignty" was transferred to Mexico before the effective date of the 1970
treaty. Until that treaty transferred sovereignty over the tract, the United States could
have reasserted its jurisdiction control (just as this country retains the ultimate right to
"destroy" the implied restriction on jurisdiction over foreign warships within its
waters). See The Schooner Exchange, supra at 146. During the period when jurisdictional control is voluntarily relinquished, however, persons born within such an area
(whether on a tract of land or onboard a foreign warship) cannot be found to bo born
"subject to the jurisdiction" of the United States within the meaning of the Fourteenth
Amendment.
'=It is well settled that stipulations of fact fairly entered into are controlling and
204

Interim Decision #2748
before the immigration judge.
The stipulation reflects that the "United States of America ... has
totally refrained from exercising jurisdiction over the... 'Horton
Tract' since 1906." (Record at page 10) (underscoring supplied). This
conclusion is well supported in the record. No United States official at
Federal, State, or local level ever exercised any authority over the area;
no laws of this country were ever enforced therein; no United States
taxes were collected; no governmental services or benefits of any kind
were provided; no obedience or allegiance to the United States by those
born therein was demanded; and no "protection" by the United States
Government was supplied.
Conversely, the parties have stipulated that the deaths and births
(including the respondent's) of persons living within the Horcon Tract
have been recorded on the Mexican Civil Registry's; that the laws of
Mexico, including the laws of conscription, have been exercised within
that area (the respondent himself complied with Mexico's conscription
laws); that the roads and schools have been maintained by Mexican
authorities; and, that the only police protection and other governmental services ever provided came from the Mexican Government.
It appears beyond question that since the transfer of the Horcon
Tract to the southern side of the Rio Grande in 1906, no jurisdiction
has been exercised therein by the United States. The respondent

submits on appeal that the fact that this country maintained a port of
entry only 300 yards from the Horcon Tract between 1929 and 1949
shows that it "had not abandoned a section of its national soil that
happened to be south of the Rio Grande." The purpose of building that
bridge, however, appears to have been related more to providing access
to "prohibition speakeasies," than to evidencing any intent to exercise
control over the tract. For even while the bridge was in existence and
access to the tract was readily available, respondent admits that the
United States continued to refuse to exercise any jurisdiction over that
area.
This leads to the final question of why jurisdiction was withheld.
Was it through mere neglect or was a conscious election made to waive
jurisdiction because of the peculiar location of the tract? An answer to
this question is found in the Secretary of State's Letter of Submittal to
the President forwarding the "Boundary Treaty of 1970." After
reviewing the origin of the Horcon Tract and the subsequent shifting
conclusive of the matters stipulated to therein. See Fenix v. Finch, 436 F.2d 831, 837 (8
cited therein; Stipulations, sec. 13.
"In this regard, it is noted that the respondent entered the United States in 1972 by
presenting his "Nonresident Alien Mexican Border Crossing Card" (Form 1-186). At the
time he applied for and used that card (when 37 years old), the respondent apparently
considered himself to be only a citizen of Mexico (See Form 1-190).
Cir 1971), and the cases

911c

Interim Decision #2748
of a Mexican village across the United States territorial line, the
Secretary of State wrote:
In view of the exceptional origin and situation of the detached (tract), the United
States at Federal, State, and local levels, has refrained from exercising jurisdiction
over it.

The tract did not escape the notice of the United States from 1912
until 1970; instead, an intentional decision was made for political

reasons not to exercise jurisdiction over the area. Although the
majority appears troubled by this conclusion, it is not contested by the
respondent as he submitted in his brief before the immigration judge
that the "problem with jurisdiction in the Horcon Tract since 1906 has
been the federal government's timidity in exercising its political jurisdiction over the ... Tract for fear of causing an international incident." The respondent also submitted below that:
The United States has long known that the territory was American territory, but
for fear of disturbing the international harmony with Mexico the federal government
acquiesced to the entry of aliens and establishment of homes on the property and
accepted the fact that a viable community existed on American soil.
Thus, the inescapable conclusion is that the United States, for
foreign policy reasons, intentionally elected to except from its jurisdiction those few hundred acres of its territory which through unique
circumstances came to fall on the southern side of the Rio Grande. This
it had the legitimate sovereign power to do effectively. Therefore, when
this respondent was born within that tract in 1935, he received no
protection from the United States Government, owed this nation no
obedience or allegiance, and was not in any manner "subject to the
jurisdiction thereof."
In view of this final factual finding, I conclude that it has been
established that the respondent acquired no jus soli citizenship by
virtue of his birth in the Horcon Tract. Hence, I find that it has been
established by clear, convincing, and unequivocal evidence that he is
not a citizen of the United States and that he is deportable as charged.
I would, therefore, dismiss theappeal. Moreover, as this is a matter of
utmost importance, I believe the proceeding should be referred to the
Attorney General for further review.
DISSENTING OPINION: Mary P. Maguire, Board Member
I concur in the foregoing dissenting opinion.

2f1R

Interim.Decision #2748
BEFORE THE ATTORNEY GENERAL
(December 18, 1979)
This matter is before me for review pursuant to 8 C.F.R. section

3.1(h)(iii) upon a referral by the Board of Immigration Appeals at the
request of the Immigration and Naturalization Service. The Board has
sustained respondent's appeal from the decision of the immigration
judge ordering him deported.
Respondent Homero Cantu-Trevino is an adult male who was admitted to the United States from Mexico in 1972 as an alien visitor. He has
conceded remaining longer than authorized and, if an alien, is deportable under section 241(a)(2) of the Immigration and Nationality Act, 8
U.S.C. 1251(a)(2).
Respondent was born on August 25, 1935, on a ranch in an area of 419
acres known as the "Horcon Tract" (the Tract) near the United States
boundary with Mexico. He claims United States citizenship by virtue
of his birth in that area, which was then territory of this country. His

parents were natives of Mexico.'
The record in this matter is comprised principally of stipulations of
fact presented by the Service and respondent, together with exhibits
submitted by the latter. Following is a summary of the pertinent
evidence.
Until 1906 the Tractwas the southern half of a reverse-S meander of
the Rio Grande River, the international boundary between the United
States and Mexico, and was a contiguous part of Hidalgo County,
Texas. The land within the northern part of the meander was then and
has at all times remained Mexican territory. In 1906 an American
irrigation company, acting for its own benefit, illegally changed the
course of the Rio Grande by cutting a diversionary channel along a line
that positioned the Tract on the Mexican side of the new course and
ended the contiguity of the Tract with rest of Hidalgo County.
Although the American company's action violated a convention
entered into by the United States and Mexico in 1884, it did not have

the effect of changing the international boundary. The Tract continued
to be American territory until the United States ceded it to Mexico in
1972, receiving in return an equal amount of acreage owned by Mexico
north of the Rio Grande. This exchange and others were made in
accordance with a treaty signed by the two countries on November 23,
1970, to resolve various pending boundary differences and
' Respondent acquired Mexican citizenship at birth, Matter of Quintanilla-Montes, 13
I&N Dec. 508 (BIA 1970). His possession of Mexican nationality does not affect his claim
to nationality of the United States. See Perkins v. Elg, 307 U.S. 325, 329 (1939).

207

Interim Decision #2748
uncertainties?
The parties to this matter stipulated that the United States "totally
refrained from exercising jurisdiction" over the Tract after the diversion of the Rio Grande_ Respondent's birth in 1935 was recorded in a
Mexican civil registry office. When the time came, he complied with the
Mexican conscription laws.
The town of Rio Rico, Tamaulipas, was established in 1929 in the
northern or Mexican part of the original reverse S-curve of the river
and from its founding was administered by Mexican officials. Because
of erosion at its northern edge, Rio Rico gradually shifted southward
and beginning October 1941, 6 years after respondent was born,
crossed the former river bed so as to encroach on the Tract. A scholarly
work written sometime after 1965 2 stated that the persons residing
there in that year did not know of the true international boundary and
that officials of Hidalgo County, Texas, were not aware the Tract
belonged to the United States.
In a letter forwarding the Treaty of November 23, 1970, to the
President for relay to the Senate, the Secretary of State informed him
of the unlawful transfer of the Tract to the Mexican side of the Rio

Grande and went on to say, "In view of the exceptional origin and
situation of the detached tract, the United States, at Federal, State,
and local levels, has refrained from exercising jurisdiction over it." 4
Article VI(B) of the Treaty provides that its transfers of the Tract and
other areas "shall not affect in any way ... Nile legal status with
respect to the citizenship laws of those persons who are present or
former residents of the portions of territory transferred."
Finally, the record in this proceeding contains no evidence that the
United States expressly renounced or formally decided not to exercise
jurisdiction of any kind over the Tract at any time before the respondent's birth.
The respondent's assertion of American nationality is based on the
Citizenship Clause of the Fourteenth Amendment, which provides:
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside.'
The Service concedes that respondent was born in the United States
for purposes of this clause. It denies, however, that he was born
"subject to the jurisdiction" of the United States because this country
Senate Ex. B, 92d Cong., 1st Sess., April 21, 1971; ratified November 29, 1971, 117
Cong. Rec. 43249.
' James A. Hill, "El Horcon", the United States-Mexican Boundary Anomaly, Rocky
Mountain Social Science Journal.
4 Senate Ex. B, supra, n. 2.
The words "subject to the jurisdiction thereof" relate to the date of birth or natural.
ization. Elk v. Wilkins, 112 U.S. 94, 102 (1884).

208

Interim Decision #2748
did not exercise governmental authority in the Tract after 1906 and, so
far as the record shows, did not resist the Mexican Government's
exercise of such authority. In short, the Service contends there was a
de facto waiver of jurisdiction before the respondent's birth. The
immigration judge agreed and found that the respondent is not a
citizen of the United States.
The Board of Immigration Appeals reversed the judge's decision. It
pointed out that in a deportation proceeding the Service has the overall
burden of proving its case by clear, unequivocal, and convincing
evidence, Woodby v. INS, 385 U.S. 276 (1966), and is also required to
provide the same measure of proof to establish the alienage of a
citizenship claimant born in this country. Nishikawa v. Dees, 356
U.S. 129, 133 (1958). Then the Board assumed for the purpose of

argument that the United States could by "non-action" relinquish
Fourteenth Amendment jurisdiction over a portion of its territory. It
went on to find, however, that the Service had not produced the
required quantum of proof that such jurisdiction in relation to the
Tract had in fact passed from the United States to Mexico before the
birth of the respondent. The Board accordingly terminated the deportation proceeding against him_ It left "to some future date and
some other process" a decision whether he is a United States citizen.
I concur in the Board's factual conclusion that the evidence on the
issue it framed does not provide sufficient support for a holding that
the United States by implication renounced or gave up its Fourteenth
Amendment jurisdiction at a time fatal to the respondent's citizenship. However, I cannot join in the view of the Service and the assumption arguendo of the Board that this is a valid issue. More particularly,
I cannot read the Citizenship Clause to permit in a case like this the
severance of Fourteenth Amendment jurisdiction from territory in
which the United States is the sovereign. Accordingly, I have concluded that respondent acquired citizenship of the United States at
birth.
The starting point for the ascertainment of the correct approach in
this matter is the landmark case of United States v. Wang Kim Ark,169
U.S. 649 (1898), which held that the Fourteenth Amendment conferred
citizenship on a child born in the United States to parents of Chinese
descent who were resident aliens. The Court stated that the common
law rule in this country both before and after it gained its independence was the English rule that any person born within the
territory of a sovereign nation thereby acquired its citizenship. The
purpose and effect of the Citizenship Clause, according to the Court,
was in part to affirm this principle of jus soli in the Constitution. As it
209

Interim Decision #2748
stated, 169 U.S. at 693:
The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the
country, including all children here born of resident aliens, with the exceptions or
qualifications (as old as the rule itself) of children of foreign sovereigns or their
ministers, or born on foreign public ships, or of enemies within and during a hostile
occupation of part of our territory, and with the single additional exception of children
of members of the Indian tribes owing direct allegiance to their several tribes_ The

Amendment, in clear words and in manifest intent, includes the children born, within
the territory of the United States, of all other persons, of whatever race or color,
domiciled within the United States. Every citizen or subject of another country, while
domiciled here, is within the allegiance and the protection, and consequently subject
to the jurisdiction, of the United States. His allegiance to the United States is direct
and immediate, and, although but local and temporary, continuing only so long as he
remains within our territory, is yet, in the words of Lord Coke, in Calvin's Case, 7 Rep.
6a, 'strong enough to make a natural subject, for if he bath issue here, that issue is a
natural born subject.'

The Court had earlier in its opinion, id. at 682, related the words
"and subject to the Jurisdiction thereof" to the "exceptions or qualifications" referred to in the above passage:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the
words. 'All persons born in the United States,' by the addition, 'and subject to the
jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest
words, (besides children of members of the Indian tribes, standing in a peculiar
relation to the National Government, unknown to the common law,) the two classes of
cases—children born of alien enemies in hostile occupation, and children of diplomatic
representatives of a foreign State—both of which, as has already been shown, by the
law of England, and by our own law, from the time of the first settlement of the
English colonies in America, had been recognized exceptions to the fundamental rule
of citizenship by birth within the country.

These excerpts from Wong Kim Ark are consistent with the understanding of 'the draftsman of the Citizenship Clause, Senator Howard.
He explained to the Senate:
[It] is simply declaratory of what I regard as the law of the land already, that every
person born within the limits of the United States, and subject to their jurisdiction, is

by virtue of natural law and national law a citizen of the United

Staten. This will not,

of course, include persons born in the United States who are foreigners, aliens, who
belong to the families of ambassadors [sic] or foreign ministers accredited to the
Government of the United States, but will include every other class of persons.'
' Gong. Globe, 39th Gong., 1st Sen., 2890, May SO, 1866. 'The words "subject to the
jurisdiction thereof" were obviously the basis for Senator Howard's remarks concerning
the exclusion of families of ambassadors and foreign ministers. In later remarks he
assured the Senate that these words were also a means of sAcluding tribal Indiana from
citizenship by birth. Id, 2890; 2895. Elk v. Wilkins, 112 U.S. 94 (1884), vindicated these
assurances by holding that children born to such Indians did not acquire citizenship
under the Fourteenth Amendment.

210

Interim Decision #2748
Judicial interpretation of the Citizenship Clause has uniformly adhered to Wong Kim Ark. See for example, Perkins v. Elg, 307 U.S. 325,
328-29 (1939); Acosta v. Gaffney, 413 F.Supp. 827, 830-831 (D. N.J. 1976),
rev'd on other grounds, 558 F.2d 1153 (C.A. 3,1977); Regan v. King 49
F.Supp. 222 (N.D. Calif. S.D., 1942), aff'd, 134 F:2d 413 (CA. 9, 1943),
cert. den., 319 U.S. 753 (1943); and see Gordon and Ropiffield, Immigration Law and Procedure, section 12.5 (1979).
Thus there is no basis in the legislative history or judicial construction of the Citizenship Clause for the view that territory of which the
United States is the sovereign can be deemed removed from its jurisdiction for purposes of the Citizenship Clause. Instead, it is the
presence within and the personal relationship to the United States of a
newborn child's parents that determines whether he was born "subject
to the jurisdiction thereof" and without more became a citizen. Accordingly, since the birth of the respondent hi this matter took place in
the Horcon Tract before the United States transferred it to Mexico and
since his parents did not fall within any of the exceptions to the rule of
jus soli noted in Wong Kim Ark, he became a citizen at the moment of
birth.
The Service has stated that if respondent acquired American nationality, he has never lost it The immigration judge also found no basis
for expatriation. The order of the Board terminating the deportation
proceeding against the respondent is affirmed.

211


Interim Decision #2810

MATTER OF BAKER
In Deportation Proceedings
A-20224363

Decided Board August 8, 1974
Conviction in the Virgin Islands of oggoult in the third degree in violation of 14 V. L C. 297
(1964), as amended (Supp. 1978), resulting in a sentence to 21/2 years' imprisonment, is
conviction of a crime involving moral turpitude within the meaning of section 241(a)(4) of
the Immigrati an and Nationality Act, as amended. This is true notwithstanding the
statute under which the conviction occurred contains five different subdivisions and the
judgment of conviction does not specify under which subdivision the conviction is based,
Since all five subdivisions involve moral turpitude.
CHARGE:

Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4))—Convicted of crime involving moral turpitude within five years after entry.
ON BEHALF OF RESPONDENT! James Pomeroy Hendrick, Esquire
Mt. Welcome, Above Gallows Bay
P.O. Box 2931
Christiansted, St. Croix
U.S. Virgin Islands 00802

This is an appeal from the November 15, 1972 decision of the immigration judge in which he found the respondent deportable as charged and
ineligible for any discretionary relief. The immigration judge ordered
that the respondent be deported to Montserrat, British West Indies.
The appeal will be dismissed.
The alien respondent, a native of Montserrat, British West Indies,
and a citizen of Great Britain, last entered the United States on September 12, 1970. He was convicted in the Virgin Islands, on a plea of not
guilty, of assault in the third degree, committed on June 3, 197 2 , and
was sentenced to two and one-half years imprisonment. Section 241(a) of
the Immigration and Nationality Act provides, in pertinent part: "Any
alien in the United States . . . shall, upon the order of the Attorney
General, be deported who— . . . (4) is convicted of a crime involving
moral turpitude committed within five years after entry and either
sentenced to confinement or confined therefor in a prison or corrective
institution, br a year or more . . . ."
50

Interim Decision #2310
The only issue to be decided is whether or not the crime of which the
respondent was convicted is a crime involving moral turpitude, since it
was committed within five years after entry and he was sentenced to
confinement in prison for a year or more.
Crimes involving moral turpitude have been described as crimes
which shock the public conscience; crimes of violence, inherent baseness, vileness, or depravity. U.S. ex rel. DeGeorge v. Jordan, 183 F.211
768 (C.A. 7, 1950), reversed 341 U.S. 223 (1951); U.S. ex rel. Manzella
v. Zimmerman, 71 F. Supp. 534, 537 (E.D. Pa., 1947). "It is the
inherent nature of the crime as defined by the statute or interpreted by

the courts and as limited and described by the record of conviction
which determines whether the offense is one involving moral turpitude." Matter of H , 7 I. & N. Dec. 616, 618 (BIA 1957).
The respondent was convicted of assault in the third degree, pursuant
to 14 V.I.C. 297 (1964), as amended (Supp. 1973), which provides as
follows:
—

Whoever, under circumstances not amounting to an assault in the first or second
degree—
(1) assaults another person with intent to commit a felony;
(2) assaults another with a deadly weapon;

(3) assaults another with premeditated design and by use of means calculated to
inflict great bodily harm;
(4)assaults another and inflicts serious bodily injury upon the person assaulted; or
whoever under any circumstances; (ate]

(5) assaults a peace officer in the lawful discharge of the duties of his office with a
weapon of any kind, if it was known or declared to the defendant that the person
assaulted was a peace officer discharging an official duty;— shall be fined not more than
$500 or imprisoned not more than 5 years or both.

Although the conviction record does not mention the use of a weapon,
the respondent stated at the deportation hearing that he had used a
partly full beer bottle, from which he had been drinking, to strike the

victim. Transcript, pp. 7-8. A glass bottle can be a dangerous weapon.
See Matter of R—, 1 I. & N. Dec. 353 (BIA 1942).
Simple assault is not considered to be a crime involving moral turpitude. U.S. ex. rel. Zaffarano v. Corsi, 63 F.2d 757, 758 (C.A. 2, 1933);
Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465 (D. Mass., 1926);
Matter of B—, 5 I. & N. Dec. 538 (BIA 1953). 14 V. L C. 299 (1964),
provides a maximum sentence of 30 days or $50 or both for simple
assault and battery. Although it is not clear under which subsection of
the third degree assault provision the respondent was convicted, the
crime of which he was found guilty was evidently more serious than a
simple assault and battery. The greater gravity of third degree assault
is evidenced by the specific intent required in subsections (1) and (3), the
use of a weapon specified in subsections (2) and (5), the serious injury
recited in subsection (4), the more severe penalty which may be imposed
51

Interim Decision #2310
for conviction under any of the several subsections, and the fact that the
crime is a felony. Because these crimes are more serious than simple
assault and battery, we find that they all involve moral turpitude.
Consequently, it does not matter under which subsection the respondent was convicted, for all of the subsections involve moral turpitude.
We, therefore, agree with the conclusion of the immigration judge
that the respondent was convicted of a crime involving moral turpitude.
ORDER: The appeal is dismissed.
Louisa Wilson, Member, Dissenting:

I respectfullY dissent.
The majority has correctly stated the facts and the issue of this case.
However, I must reject the conclusion drawn and the reasoning leading
to that conclusion. It does not seem to me that the Immigration and
Naturalization Service has established by evidence which is clear, convincing, and unequivocal that the respondent has been convicted of a
crime involving moral turpitude. Therefore, the appeal should be sustained and the proceedings terminated.
Matter of H—, 7 I. & N. Dec. 616 (BIA 1957), quoted in the majority
opinion, states the following: "It is the inherent nature of the crime as
defined by the statute or interpreted by the courts and as limited and
described by the record of conviction which determines whether the
offense is one involving moral turpitude." (Emphasis supplied.) Id. at

618:
14 V.I.C. 297 (1964), as amended (Supp. 1973),, assault in the third
degree, the statute under which the respondent was convicted, is a
divisible statute. It is nowhere stated under which subsection of this
statute the respondent was convicted. Therefore, we must look beyond
the statute itself to ascertain whether or not the conviction was for a
crime involving moral turpitude. However, since this proceeding is
based on section 241(a)(4) of the Immigration and Nationality Act, we
must limit our efforts to define the nature of the crime of which the
respondent was convicted to a consideration of the conviction record. I

The conviction record consists of the charge, plea, verdict or judgment,
and sentence. Matter of Lopez, 13 I. & N. Dec. 725, 726 (BIA 1971).
. Since the respondent was charged by information under 14 V.I.C. 295(3)
(1964) for assault in the first degree 2, but pleaded not guilty and was
not convicted therefor, it is necessary to eliminate from our considers' The situation would be slightly different in a case where the alien was charged under
sections 241(a)(1) and 212(a)(9) of the Act, where actual conviction may not be necessary.
z "Whoever . . . (2) with intent to commit rape, sodomy, mayhem, robbery or larceny,
assaults another—shall be imprisoned not more than 15 years."
—

52

Interim Decision #23101
don of the charge those parts which are pertinent to first degree assault
but not to third degree assault.
In the information it is alleged that the respondent "did, 'with-intent
to commit mayhem, assault one [name of person assaulted] by cutting
hini on the chest and wrist, causing serious bodily injury, in violation of
Title 14 V.I.C., §295(3)." If the respondent had been found guilty of
assault with intent to commit mayhem, he would have been convicted of
assault in the first degree. He was not so convicted, although the
immigration judge evidently thought he was. (Transcript p. 9.) Conviction of a lesser included offense is acquittal of the higher offense. U.S. ex
rel, Valenti v. Karnuth, 1 F. Supp. 370, 375 (M.D:N.Y. 1932); Matter of
V—T—, 2 I. & N. Dee. 213, 216-17 (BIA 1944); cf. Matter of W—, 4 I. &
N. Dec. 241 (BIA 1951). What remains of the charge appears to be
consonant with the language of subsection (4) of section 297, which is set
out in the majority opinion. This subsection, unlike subsections (1) and
(3), does not necessarily involve any intent beyond that inherent in a
simple assault charge. Simple assault is not considered to be a crime
involving moral turpitude. U.S. ex rel. Zaffarano v. Corsi, 63 F.2d 757,
758 (C.A. 2, 1933); Ciambelli ex rel. Maranci v. Johnson, 12 F.2d 465
(D. Mass., 1926); Matter of

5 I. & N. Dec. 538 (BIA 1953). Unlike

subsections (2) and (5), subsection (4) contains no reference to a
weapon. 3 Subsection (4) refers to the injury suffered rather than to the
intent, but it is in the intent that moral turpitude inheres. TT ex rel.

Meyer v. Day, 54 F.2d 336, 337 (C.A. 2,• 1931); U.S. ex rel. Shladzien v.
Warden, 45 F.2d 204,205- 6 (E.D. Pa., 1930); see Matter of L — , 2 I. &
N. Dec. 54 (BIA 1944).
Thus, .the statute in question includes at least one offense which does
not necessarily involve moral turpitude. If a statute includes offenses in
which moral turpitude 'does not necessarily inhere, and if it is not clear
from the conviction record under which subsection the respondent was-

in the
particular instance his conduct may have been immoral. Ablett v. Brownell, 240 F.2d 625, 627 (D.C. , Cir., 1957); U.S. ex rel. Robinson v. Day,
51 F.2d 1022 (C.A. 2, 1931); U.S. ex rel. Mylius v. Uhl, supra, note 2;
Forbes v. Broilinell, 149 F. Supp. 848,•850-51 (D. D.C., 1957); Matter
of N-1, 8 I. & N. Dee. 466 (BIA 1959).
-Without diStinguishing or even mentioning the above-cited decisions,
convicted, then the respondent is not deportable, even though

3 The respondent testified at his deportation hearing that he had struck the victim with
a partly full beer bottle; however, the conviction record contains no mention of k weapon.
Therefore, it does not appear that the conviction was based on the use of a weapon. In any
case, it is improper to look beyond the conviction record to find moral turpitude. U.S. ex
rel. Guarino v. Uhl, 107 F.2d 399, 400 (C.A. 2,1939); U.S. ex rel. Mylius v. Uhl, 210 F.
860, 862-63 (C.A. 2,1914); Zgodda v. Holland, 184 F. Supp. 847, 851 (E.D. Pa., 1960);
Vidal y Planes v. London., 104 P. Supp. 384, 080 (S.D. Cal., 1952); U.S. ex rd. Manzalla
v. Zimmerman, 71 F. Supp. 534, 536 (E.D. Pa., 1947). '
•

53

Interim Decision #2310
the majority goes beyond the conviction record to consider the respondent's testimony at the deportation hearing. When an alien is to be
deported on the basis of conviction for a crime involving moral turpitude, we may look only at what he was convicted of, not at what he
may have testified to at a deportation hearing. A deportation hearing is
not a criminal trial, and it is improper to retry a criminal case in a

deportation proceeding. •
The majority states that the crime of which the respondent was
convicted was "more serious than a simple assault and battery." This
may be true, but moral turpitude is found in the intent with which a
crime is committed, not in the "seriousness" of that crime. As pointed
out above, the respondent appears to have been convicted under subsection (4) of the third degree assault statute. That subsection does not
require any intent to injure beyond that required for any assault,
including simple assault, which is not considered to be a crime involving
moral turpitude. U.S. ex rel. Zaffarano v. Corsi; Ciambelli as rel.
Maranci v. Johnson, 12 F.2d 465 (D. Mass., 1926); Matter of B—,5 I. &
N. Dec. 538 IBIA 1953); Matter of E—, 1 I. & N. Dec. 505, 507 (BIA
1943); U.S. ex rel. Moracci v. Smith, 8 F.2d 663 (W.D. N.Y., 1925).
While subsection (4) is included in the same statute with other crimes,

some of which probably do involve moral turpitude (because of the
stated specific intent and the use of means calculated to inflict great
bodily harm or because of the intent inferred from the use of a dangerous weapon), and while this may indeed show that the legislature
considered all of these crimes to be of comparable "seriousness" and of
greater "seriousness" than simple assault and battery, it cannot be
assumed that the added seriousness results from the presence of moral
turpitude. It often happens that one statute includes both crimes which
do involve moral turpitude and crimes which do not. When that occurs,
since the burden to prove deportability is upon the Service, we must
take the case in the light most favorable to the respondent and assume

that he was convicted of a crime that does not involve moral turpitude,
Matter of Lopez, supra, at 727; Matter of Espinosa, 10 I. & N. Dec. 98,
100 (BIA 1962). This the majority has not done. ,
The immigration judge states in his opinion that "assault of an aggravated nature with the use of a deadly or dangerous weapon and with the
intent to inflict bodily harm is a crime involving moral turpitude."
Decision of the immigration judge, pp. 2-3. This is true. But it is , not
stated in the conviction record that the respondent was convicted of
such an assault. •
Accordingly, it does not appear to me that the crime of which the
respondent was convicted necessarily involves moral turpitude. Reading the statute at its minimum, we must conclude that the respondent is
not deportable as charged.

Interim Decision #2310
The appeal should be sustained and the proceedings terminated.
Maurice A. Roberts, Chairman, Dissenting:

I join in the foregoing dissenting opinion.
The decision reached by the majority respresents, in my view, an
example of result-oriented decision-making. The unarticulated premise
of the majority opinion seems to be that a person like the respondent,
who has received a two and a half year sentence for a serious crime, is a
bad person who should be deported. Not every serious crime, however,
necessarily involves moral turpitude or calls for deportation.
No alien may be deported unless he clearly fits within one of the
categories of deportable aliens specified by Congress. In determining
whether an alien comes within any of those classes, certain well-defined
principles have emerged through the years. Unless the alien is found to
be within one of the deportable classes in the light of those principles,
his deportation may not be ordered, no matter how unworthy or bad or
immoral we may personally think him.to be. We are bound to apply the
rule of law.
Deportation statutes, because of their drastic consequences, must be

strictly construed, Barber v. Gonzales, 347 U.S. 637, 642-643 (1954);
Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). In section 241(a)(4) of
the Immigration and Nationality Act, Congress has prescribed deportation if an alien is convicted of "a crime involving moral turpitude"
committed within five years of entry. It is the crime of which he is
convicted, and not the alien's conduct, which determines deportability.
If the crime of which he is convicted does not inherently involve moral
turpitude, he may not be deported even if his actual conduct was
immoral, U.S. ex rel. Robinson v. Day, 51 F.2d 1022 (C.A. 2, 1931);
Abiett v. Brownell, 240 F.2d 625, 627 (D.C. Cir., 1957); U.S. ex rel.
Giglio v. Neelly, 208 F.2d 337 (C.A. 7, 1953). On the other hand, if the
crime of which he was convicted does involve moral turpitude, deportability is established even if the alien's actual conduct as he later describes it might not seem so reprehensible, U.S. ex rel. Manzella v.
Zimmerman, 71 F. Supp. 534 (E.D. Pa., 1947). In other words, it is the
alien's crime, and not his conduct, which is determinative under section
241(a)(4).
Whether or not a particular offense involves moral turpitude depends
upon the ingredients of the crime, the elements which must be proved to
establish guilt. If those ingredients necessarily involve baseness, vileness, depravity, an evil intent which shocks the public conscience, the
crime involves moral turpitude, Guerrero de'Noclahl v. INS, 407 F.2d
1405, 1405-07 (C.A. 9, 1969). To determine the nature of the crime, we
must look primarily to the statutory definition of the offense, or, if it is
55

Interim Deeisi on #2310
undefined, to the court decisions which define its elements, U.S. ex rel
63 F.2d 757 (C.A. 2, 1933). If the crime as defined
by the statute under all circumstances encompasses conduct which
involves moral turpitude, the crime involves moral turpitude, U.S. ex
rel. Guarino v. Uhl, 107 F.2d 399 (C.A. 2, 1939). If the crime as defined
by statute punishes conduct which may or may not be turpitudinous,
and if it is not clear under which aspect of the statute the conviction was
rendered, the definition of the crime must be taken at its minimum, i.e.,
as not involving moral turpitude, U.S. ex rel. Manzella v. Zimmerman,
71 F. Supp. 594 (E.D. Pa., 1947).
If the charge is a violation of a statute in general terms, and the
statute itself is divided into specified subdivisions, each of which necessarily involves moral turpitude, the crime obviously involves moral
turpitude. If only some of the subdivisions of a divisible statute involve
moral turpitude, then under the rule of strict construction the crime
does not involve moral turpitude unless it can be established that the
offense as charged was geared to one of the subdivisions involving moral
turpitude, Wadman v. INS, 329 F.2d 812 (C.A. 9, 1964).
Reference can be had to the record of conviction (the indictment or
Zaffarano v. Corsi,

information, the plea, the verdict or judgment, and the sentence) to

establish under which subdivision the defendant , was charged, U.S. ex
63 F.2d 757 (C.A. 2, 1933).
In all cases, the nature of the offense and the guilt of the alien can be
determined only by the record of conviction. The alien cannot be heard
at the deportation hearing to testify that he was not guilty of the
offense, or that his actions were actually different from those described
in the record of conviction. The criminal case cannot be retired in the
deportation proceedings, Zgodda v. Holland, 184 F. Supp. 847 (E.D.
Pa., 1960). Similarly, if the crime as made out by the record of conviction does not involve moral turpitude, the testimony of the alien at the
deportation hearing cannot be accepted to prove that his conduct was
actually turpitudinous.
Applying these principles, it seems to me that the offense of which the
respondent was charged cannot be said to involve moral turpitude.
When it comes to assault and battery, whether or not moral turpitude is
involved is largely a matter of intent. Simple assault and battery does

rel. Zaffarano v. Corsi,

not involve moral turpitude, Ciambelii ex re/. Maranci v. Johnson, 12

F.2d 465 (D. Mass., 1926); Matter of B—, 5 L & N. Dec. 538 (BIA 1953).
Assault with intent to kill does, Clark v. Orabona, 59 F.2d 187 (CA. 1,
1932), cert. denied 287 U.S. 629; U.S. ex rel. Shladzien v. Warden, 45
F.2d 204 (E.D. Pa., 1930). So does assault witha deadly weapon or one
likely to inflict great bodily harm, Gonzales v. Barber, 207 F.2d 398
(C.A. 9, 1953).
Respondent.was convicted of assault in the third degree. As the crime
56

Interim Decision #2310
is defined in the Virgin Islands statute before us, five different types of
conduct are covered. Categories (1), (2), (3) and (5) must be ruled out.
There is nothing in the record of conviction to show either that (1) there
was an intent to commit a felony; or (2) that a deadly weapon was used;
or (3) that there was a premeditated design and that respondent used
means calculated to inflict great bodily harm; or (5) that the victim was a
peace officer and that a weapon was used. This leaves the fourth subdivision as the only possible basis for the third degree assault charge.
Although that subdivision is obviously different from simple assault and
battery, the difference does not lie in the intent involved but in the
nature of the resultant injury. Under the fourth subdivision, it is the
serious bodily injury which results from the assault, and not the intent
with which the assault was committed, that is determinative. A simple
assault and battery which unintentionally results in serious bodily injury is within the ambit of the fourth subdivision. Absent the evil intent
which goes beyond simple assault and battery, the crime defined by the
fourth subdivision cannot be said to involve moral turpitude; the gravity
of the punishment is not controlling, ET .S. as rel. Zaffarano v. Corsi, 63
F.2d 757 (C.A. 2, 1933); Gonzales v. Barber, 207 F.2d 398 (C.A. 9,
1953).

The respondent's testimony at the deportation hearing that he struck
the victim with a partly full beer, bottle from which he had been drinking
does not supply the missing link to moral turpitude. The nature of the
offense must be determined from the conviction record, not from the
alien's testimony at the deportation hearing, U.S. ex rel. Mylius v. Uhl,
210 Fed. 860 (C.A. 2, 1914); U.S. ex rel. Manzella v. Zimmerman, 71
F. Supp. 534 (E.D. Pa., 1947). In relying for its decision on such testimony given at the deportation hearing, the majority recedes from a
long and well-established principle and sets a precedent which may turn
out to be unfortunate in many ways. If the testimony of an alien may be
adduced to prove that the crime of which he was convicted did involve
moral turpitude, no reason appears why an alien should not be permitted to testify as to facts indicating that the crime did not involve moral
turpitude. The net result will be to open the door to retrial in the
deportation hearing of the question of the nature of the crime and
whether the alien was actually guilty of the crime. This is a major and
unwarranted departure from precedents which have stood the test of
time.

Since I conclude that the Service has not borne its burden of proving
by clear, convincing and unequivocal evidence that the respondent was
convicted of a crime involving moral turpitude, I would sustain the
appeal and terminate the proceedings.

57