Interim Decision #2878

MATTER OF LOK

In Deport—tion Proceedings
A-31327663
Decided by Board July 31, 1981
(1) The lawful permanent resident status of an alien terminates within the meaning of
section 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(20), with
th a entry of a final administrative order of deportation, i.e., when the Board renders
its decision in the case upon appeal or certification or, where no appeal to the Board
is taken, when appeal is waived or the time allotted for appeal has expired.
(2) Once a final administrative order of deportation has been entered, barring a reversal
on the merits of the deportability finding by an appellate court or administratively upon
a motion for reopening or reconsideration, an alien may not thereafter establish eligibility as a lawful permanent resident for relief under section 212(c) of the Act, 8 U. S. C.

1182(c), nor may his domicile in this country from then on be considered lawful for

purposes of that section.
for an alien to establish a domicile in the United States, he must he physicpresent in this country and have the intention of residing here permanently or
indefinitely; for that domicile to be considered lawful within the meaning of section
212(c) of the Act, the alien's presence in the United States must be lawful within the
meaning of this country's immigration laws.
(4) The Immigration and Nationality Act sanctions the continuing presence in this country
of but one class of aliens other than those lawfully admitted for permanent residence,
namely, nonimmigrants in compliance with the terms and conditions of their admission.
(5) Govertimignt action or policy to refrain from instituting deportation proceedings against
an alien or enforcing his deportation notwithstanding, an alien in breach of the terms
and conditions of his nonimmigrant status remains in the United States at the sufferance of the Government, not under any lawful status accorded him by the Act.
(6) A nonimmigrant crewman who complied with the conditions of his admission and did
not intend to remain in this country beyond the fixed period of his temporary stay
may not establish that he was "domiciled" here during the time his stay as a nonimmigrant was authorized under our immigration laws; conversely, if the nonimmigrant
crewman did intend to make the United States his permanent home and domicile, he
was in violation of the conditions of his admission and was not here "lawfully."
(3) In order
ally

CHARGE:

Order: Act of 1952—Sec. 241(a)(11) [8 U.S.C. 1251(a)(11)J—Conviction of violation
of law relating to narcotic drugs
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Lloyd A. Sherman
Trial Attorney

Stanley'it. Wallenstein, Esquire
Schiano & Wallenstein
80 Well Street

New Yorit, New York 10005

101

Interim Decision #2878
BY: Mholian, Chairman; Mardatis, and Vacca, Board Members

This case comes to us pursuant to a Stipulation and Order of Remand

entered by the United States Court of Appeals for the Second Circuit on
June 18, 1980. Tim Lok v. INS, No. 80-4076 (2 Cir. 1980). A complex
procedural history preceded the court's present order in the case.
The respondent, a native and citizen of China, now 43 years of age,
entered the United States as a noninunigrant crewman in July 1959, and
was authorized to remain in this country no longer than 29 days. He
failed to depart within the authorized period. At a deportation hearing

conducted on October 26, 1965, an immigration judge found the respondent deportable under section 241(a)(2) of the Immigration and Nationality Aet, 8 U.S.C. .1251(a)(2), granted him the privilege of voluntary
departure in lieu of deportation, but ordered him deported from the
United States in the event of his failure to depart voluntarily within the
period specified by the District Director. Voluntary departure was ulti- mately authorized, with extensions, to March 2, 1969, to permit Congressional consideration of private bills introduced in the respondent's
behalf.
On February 27, 1968, the respondent married a United States citizen
who on February 2, 1922, nne month before the respondent's voluntary
departure authorization was to expire, filed a visa petition to accord him
immediate relative status. Under existing Service policy, the order of
deportation outstanding against the respondent was not enforced pending adjudication of the visa petition. The visa petition was approved on
January 30, 1970, and forwarded to the United States Consulate in
-Hong Kong, where the respondent was to apply for an immigrant visa
based upon his marriage. 1
On October 25, 1971, the respondent left the United States for Hong
Kong to obtain his immigrant visa, apparently thus effecting his deportation under the 1965 order of deportation. 2 Section 101(g) of the Act, 8
U.S.C. 1101(g); 8 C.F.R. 243.5. In November 1971, the respondent

applied for and received permission from the Attorney General to reapply for admission following deportation and was thereafter issued his
immigrant visa by the consul in Hong Kong. He was admitted to the
United States for lawful permanent residence on December 26, 1971.
1 Section 245 of the Act, 8 U.S.C. 1255, which permits adjustment of status in this
country, does not apply to aliens who entered as crewmen.
2 The Second Circuit appears to have concluded that the respondent left the country
while still in voluntary departure status. Lok v. INS, 548 F.2d S7, 38 (2 Cir. 1977). We

find no indication in the record that the voluntary departure period granted the respondent waR extended beyond March 3, 1969_ Resolution of the question is not, however,
necessary to a disposition of the case.

102

Interim Decision #2878
In early 1973, the respondent was convicted upon his plea of guilty of
offenses relating to the possession and distribution of narcotic drugs.
The present deportation proceedings were thereupon instituted by the
issuance of an Order to Show Cause charging the respondent with deport-

ability under section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11), as an
alien convicted of a drug—related crime. At the deportation hearing that
ensued, the respondent conceded deportability but contended that he
was eligible for relief from deportation through a discretionary waiver
under section 212(c) of the Act, 8 U.S.C. 1182(c), which provides in
pertinent part:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad

voluntarily and not under an order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may be admitted in the discretion
of the Attorney General without regard to the provisions of paragraph (1) through (25)
and paragraphs (30) and (31) of subsection (a). 3

The immigration judge found the respondent deportable as charged
and rejected his claim of eligibility for section 212(c) relief in a decision
dated May 29, 1975. On July 30, 1976, the Board affirmed the immigration judge's decision. With respect to the denial of relief under section
212(e), we relied upon our decision in Matter of S-, 5 I&N Dec. 116 (BIA
1953), decided some 24 years earlier, in which we held that in order to
comply with the "lawful unrelinquished domicile" requirement of the
statute an alien must have maintained a domicile in the United States
for 7 consecutive years subsequent to his lawful admission for permanent residence. Matter of Lok, 15 I&N Dec. 720 (BIA 1976). Inasmuch
as the respondent had not been admitted as a lawful permanent resident
until 1971, we determined that he did not have the requisite 7 years of
lawful domicile and was consequently statutorily ineligible for section
212(c) relief. Matter of Lok, id. The respondent filed a petition for review
of our decision with the United States Court of Appeals for the Second
Circuit.
In Lok v. INS, 548 F. 2d 37 (2 Cir. 1977), entered on January 4, 1977,
the Second Circuit rejected our long-standing interpretation of the phrase
"lawful unrelinquished domicile" and reversed our decision in the case.
Finding that the statutory terms "lawfully admitted for permanent
residence" and "lawful =relinquished domicile" could not be equated,
the court concluded that it is in fact possible for an alien to possess a
"lawful domicile" in this country without having been admitted for permanent residence and that the entire 7 years of lawful domicile need not
3 Although section 212(c) by its terms applies only to excludable aliens seeldng admission to the United States, we have held, following the Second Circuit's decision in Francis
v. INS, 532 F.2d 268 (2 Cir. 1976), that section 212(c) relief is available in deportation
proceedings notwithstanding the fact that the respondent had not departed from this
country since the act or event that rendered him excludable and depul table. Metter of
Silva, 16 l&N Dec. 26 (BIA 1976).

103

Interim Decision #2878
necessarily be accumulated after the alien acquires permanent resident
status.4 The court remanded the case to the Board for a determination
as to whether the respondent's domicile prior to his 1971 admission had
been "lawful."
On January 13, 1978, we remanded the record to the immigration
judge for initial consideration of the issue framed by the Second Circuit
and ordered that the ease be certified back to the Board for review.
Matter of Lok, 16 I&N Dec. 441 (BIA 1978). In a decision dated June 14,
1979, the immigration judge again found the respondent statutorily
ineligible for the relief sought under section 212(c), holding that no
portion of the respondent's domicile prior to his 1971 admission for
permanent residence was lawful. Recognizing that more than 7 years by
then had elapsed since the respondent's admission for permanent residence in December 1971, the immigration judge further held that the
respondent's lawful status, which began with that admission, ended in
May 1975 when he was found deportable and ordered deported from the
United States. 5 The immigration judge thus concluded that the respondent had satisfied only 3 Vs years of the requisite 7-year period of lawful
domicile.
In considering the case upon certification, we adopted the immigration judge's findings of fact and conclusions of law and affirmed his
decision without extended discussion in an unpublished per curiam opinion dated November 8, 1979. 6 The respondent again sought review of
our decision in the Second Circuit.
Bringing the case to its present posture, the court, pursuant to stipulation between the parties, entered its June 18, 1980, order remanding
the case to the Board for reexamination of the following "remanded
question:"
Whether the immigration judge erred in concluding that his 19Th deportability finding

terminated [the respondent's] lawful domicile under section 212(c) and in holding that,
as a result, [the respondent) was ineligible in 1979 for relief under that provision.

The court's order further instructs the Board to set forth the reasons
for its conclusion in a written opinion in the event the decision on remand
is adverse to the respondent.
4 We declined to apply the decision in Lok v. INS, 548 F.2d 37 (2 Cir. 1977), in cases
arising outside the Second Circuit. Matter of Alm, 16 I&N Dec. 293 (BIA 1977).
5 The immigration judge additionally concluded that the respondent was barred by his
deportation in October 1971 from establishing eligibility for section 212(e) relief. The
foregoing theory is not presently advanced by the Government as a basis for denying the
relief sought and we need not and do not address its merits.
e
In affirming the jminigration judge's June 1979 holding that the respondent's lawful
status ended when he was initially found deportable in May 1975, we referred to dictum in
our earlier decision in Matter of Hinojosa, 17 I&N Dee. 34 (BIA 1979), to the effect that an
"adjudication" of deportability terminates an alien's "lawful status." See also Matter of
Hinojosa, 17 MN Dec. 322 (BIA 1980).

104

Interim Decision #2878
We note at the outset that while the immigration judge and the court
in its remand order couched the question, in terms of whether the
respondent's "lawful domicile" came to an end with the immigration
judge's May 1975 finding of deportability, the precise legal issue before

us is whether the respondent's status as an alien "lawfully admitted for
permanent residence" was then terminated. ? The loss of lawful permanent resident status is a necessary corollary to the loss of lawful domicile since it is illogical to conclude that the domicile of one who retains
his lawful permanent resident status could be anything but lawful. The
question confronting us, then, is: At what point in the deportation
proceedings does the status of an alien lawfully admitted for permanent
residence come to an end?
Termination of Lawful Permanent Resident Status
The term "law.fully admitted for permanent residence" within section
212(e) is a defined term whose definition is set forth in section 101(a)(20)
of the Act, 8 U.S.C. 1101(a)(20), as follows:
The terra lawfully admitted for permanent residence" means the status of having been
lawfully accorded the privilege of residing permanently in the United States as an

immigrant in accordance with the immigration laws, such status not having changed.
(Emphasis added.)

The pivotal underlined language was not, however, defined by Congress.
We have carefully examined the various stages within the deportation

process at which the status of an alien "lawfully admitted for permanent
residence" may be considered to have changed within the meaning of
section 101(a)(20) of the Act: (1) upon the immigration judge's initial
determination of deportability, (2) when the Unrnigration judge's order
becomes administratively final, (3) when a United States Court of Appeals
acts upon a petition for review of the Board's order or the time allowed
for filing such petition expires, or (4) only upon the execution of the

deportation order by the alien's departure, voluntary or enforced, from
this country. Upon reconsideration, we conclude that the policies of the
Act would best be served by deeming the lawful permanent resident
status of an alien to end with the entry of a final administrative order of
deportation— generally, when the Board renders its decision in the
case upon appeal or certification or, where no appeal to the Board is
taken, when appeal is waived or the time allotted for appeal has expired.
8 C.F.R. 3.1(d)(2); 8 C.F.R. 242.20; 8 C.F.R. 243.1.
• Thus, we hold that the respondent's lawful permanent resident status
terminated on July 30, 1976, with the Board's affirmance of the immigration judge's determination of deportability. Barring a reversal on the
merits of that deportability finding by an appellate court or administraThe distinction is subtle but not entirely inconsequential in light of certain privileges
that attach to lawful permanent resident status. (See discussion, infra.)

105

Interim Decision #2878
tively upon a motion for reopening or reconsideration, the respondent
could not thereafter establish eligibility as a lawful permanent resident
for section 212(e) relief nor could his domicile in this country from then
on be considered lawful.
It is established that the mere occurrence of an act or event which
provides a basis for an alien's deportation does not in itself cause the
alien's status as a lawful permanent resident to change within the contemplation of section 101(a)(20). Matter of Salmon, 16 I &N Dec. 734
(BIA 1978); Matter of S-, 6 I&N Dee. 392 (BIA 1954; A.G. 1955). Cf.
Matter of Einojosa, supra. At the other mil of the spectrum, we have
held that the lawful permanent resident status of an alien is terminated
when he departs the United States after having been ordered deptirted,
thereby executing the outstanding order of deportation. Matter of
Mosgueda, 14 I&N Dec. 55 (R.C. 1972). See also Matter of Kane, 15
I&N Dec. 258 (BIA 1975); Matter of Guiot, 14 I&N Dec. 393 (D.D.
1973). Cf. Matter of Igal, 10 I&N Dec. 460 (BIA 1964).
While it is settled than an alien who departs the United States under
an order of deportation thereby loses his lawful permanent resident
status (see Matter of Mosqueda, supra), it by no means follows that the
alien retains that status, with all the rights that attach thereto, until
such departure. We find the proposition that an alien under a final order
of deportation may remain a lawful permanent resident inherently
incongruous. Were that the case, for example, a clearly deportable alien
who has exhausted all of his administrative and judicial appeal rights
but whose departure cannot for some reason be enforced (e.g., for lack
of a country that will accept him into its territory) may continue to
accord designated relatives visa preference so long as he remains in this
country. We decline to adOpt a position that could produce such anomalous result_
On the other hand, we are satisfied upon reconsideration of our November 1979, decision that termination of lawful permanent resident status
upon the immigration judge's initial adjudication of deportability is
premature- An alien is entitled as of right to appeal to the Board from an
immigration judge's finding of deportability, the final administrative
recourse 'available to him. 8 C.F.R. 3.1(b)(2); 8 C.F.R. 242.21. The
Board is not bound by the immigration judge's conclusions but rather
has plenary power to review the record de novo and to make its own
independent determinations on questions of law and fact. Matter of
Beeerra4firanda, 12 I&N Dec. 358. (BIA 1967); Matter of VilanovaGonzalez, 13 I&N Dee. 399 (BIA 1969), and the cases cited therein.
Under the diretnnstances, we believe that where a timely appeal to the
Board is taken or the Board considers the case upon certification as
provided in 8 C.F.R. 3.1(c), the time the Board renders its decision,
rather than some earlier point in time; ought to govern when the status
106

Interim Decision #2878
of an alien lawfully admitted for permanent residence changes within
the meaning of section 101(a)(20) of the Act on account of his being
adjudged deportable. 8
We further conclude that lawful permanent resident status ought not
be considered to continue beyond the entry of a final administrative
order of deportation through the judicial appellate process. Authority to
adjudicate an alien's deportability is vested primarily in the Attorney
General and, his delegates, the immigration judge and the Board. .Where
an administrative appeal has been taken, the alien is entitled to seek
review of an adverse decision of the Board in the United States Circuit

Courts of Appeals pursuant to the provisions of section 106 of the Act, 8
U.S.C. 1105a. However, in contrast to the Board's de novo review
powers, the appellate courts' scope of review is limited. Assuming no
error of law or unfairness in procedure, the court must affirm the administrative order of deportation if the order is supported by reasonable,
substantial, and probative evidence of record. Section 106(a)(4) of the
Act,. 8 U.S.C. 1105a(a)(4).
To hold that an alien under a final administrative order of deportation
remains a lawful permanent resident throughout the judicial proceedings would encourage spurious appeals to the courts, made solely-for the
purpose of accumulating more time toward eligibility for section 212(e)
relief. The termination of lawful permanent resident status upon the
entry of a final administrative order of deportation, on the other hand,
would result in no ultimate prejudice to the alien. In those relatively
rare instances where the court determines that the Board erred, as a
matter of fact or law, with respect to its deportability finding, reversal
of the Board's order of deportation nullifies the order and restores the
alien's lawful permanent resident status.We recognize that certain prior Board decisions, both precedent and
unreported, 9 suggest a result contrary to our present holding. See, e.g.,
Matter of Mosqueda, supra. However, we have never before directly
addressed the specific issue here presented. To the extent any conflict

exists, our decision in the instant case supersedes our previous decisions.
Other circumstances under which lawful permanent resident status may change include:
through rescission of adjustment of status under section 246 of the Act, 8 U.S.C. 1256 (see
Matter of Guiot, 14 I&N Dec. 393 (D.D. 1973); through adjustment to noninunigrant
status pursuant to section 247 of the Act, 8 U.S.C. 1257 (see Matter of S-, 6 I&N Dee. 392
(BIA 1954; A.G. 1955); when an alien departs the United States under an order of deportation (Matter of Mosqueda, 14 I&N Dec. 55 (R.C. 1972)) or under an order of exclusion and
deportation (Matter of Igal,10 I&M Dec. 460 (BIA 1964); and when he relinquishes such
status, intentionally (Matter of Montero, 14 l&N Dec. 399 (BIA 1973)) or unintentionally
(Malt-err of Kano, 15 I&N Dee. 258 (BIA .1975)).

Board decisions not selected as precedents are not binding in subsequent proceedings.
See generally 8 C.F.R. 3.1(g).

107

Interim Decision #2878
Lawfulness of Domicile
Prior to
Admission as Lawful Permanent Resident

To hold that the respondent's lawful permanent resident status ended
when the order of deportation outstanding against him became administratively final on July 30, 1976, does not end our inquiry in the case.
Pursuant to Lok v. INS, 548 F.2d 37 (2 Cir. 1977), which is binding upon
us in this and in other cases arising within the Second Circuit,' we must
also determine whether the respondent's domicile in this country immediately preceding:his December1971, admission for permanent residence

was "lawful" and, if so, whether that period of domicile, tacked onto his
indisputably lawful domicile following his acquisition of permanent resident status, totaled at least 7 years at the time of our July 1976 decision.
The respondent argues that his domicile in the United States was
lawful from the date of his marriage to a United States citizen in February 1968. He points to the fact, uneontroverted by the Government,
that he came•within the protection of formal Service policy as a consequence of his marriage whereunder he was permitted to remain in this

country, notwithstanding the 1965 deportation order outstanding against
him, until such time as he was eligible to apply for an immigrant visa.
Thus, the respondent insists, his lawful domicile, having begun on February 27, 1968, totaled more than 7 years by the time the immigration
judge rendered his May 1975 decision. We agree with the immigration
judge that no portion of the respondent's domicile prior to his admission
for permanent residence in December 1971 was lawful.
In order for an alien to establish a domicile in the United States, he
must be physically present in this country and have the intention of
residing here permanently or indefinitely. Anwo v. INS, 607 F.2d 435
(D.C. Cir. 1979); Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980),
and the cases cited therein. For that domicile to be considered "lawful,"
however, the alien's presence here must he lawful within the meaning of
this country's immigration laws. Cf. Kan. Kam Lin v. Rinaldi, 361
F.Supp. 177 (D. N.J. 1973), affd mem., 493 F.2d 1229 (3 Cir. 1974);
Ming v. Marks, 367 F.Supp. 673 (S.D.N. Y. 1973), affd, 505 F.2d 1170
(2 Cir. 1974); Matter of Dunar, 14 I&N Dee. 310 (BIA 1973). The Im(pigrition and Nationality Act sanctions the continuing presence in this
country of but one class of aliens other than those lawfully admitted for
permanent residence, namely, nonimmigrants in compliance with the
terms and conditions of their admission. See generally Kan Kam Lin v.
Rinaldi, supra;;Ming v. Marks,•supra; Matter of Dunar, supra.
An alien in breach of his nonimmigrant status, such as the respondent
.10

But see Matter of Anwo, supra.
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Interim Decision #2878
in the instant case, has no claim of right under the Act to remain in this
country. The fact that the Government refrains, in an individual case or
as a matter of general policy, from instituting deportation proceedings

against an alien or enforcing his deportation does not legalize the status
of the beneficiary of the Government's forebearance. He remains in the
United States at the sufferance of the Government, not under any lawfill status accorded him by the Act."
The respondent's reliance upon the Second Circuit's decision in Holley
v. Lavine, 553 F.2d 845 (2 Cir. 1977), is misplaced. At issue in that case
was whether an alien with six United States citizen children who had

been given official assurance that the Service did not presently intend to
enforce her departure from this country was eligible under a federal
regulation which assured financial aid to qualified aliens residing permanently in the United States "under color of law." The court held in favor
of the alien, who had entered the country with a nonimmigrant student
visa, long since expired. Noting that the phrase "under color of law"
obviously included situations not covered by specific authorization of
law, the court left no doubt that the alien in question was "unlawfully
residing in the United States." Id. at 849. (Emphasis added.)
Furthermore, the respondent may not establish that he had a lawful
domicile in the United States even during the brief period his stay in
this country was authorized under our immigration laws. In order to
qualify as a nonimmigrant crewman, an alien must be one who "intends
to land temporarily and solely in pursuit of his calling as a crewman . . . ."
Section 101(a)(15)(D) of the Act, 8 U.S.C. 1101(a)(15)(D). An alien crewman may be granted authorization to land in this country for a period
not exceeding 29 days. Section 252 of the Act, 8 U.S.C. 1282; 8 C.F.R.
252.1(d).

In Elkins v. Moreno, 435 U.S. 647 (1978), the Supreme Court recognized that the intent to form a domicile in the United States is incompatible with the terms and conditions of an alien's admission as a nonimmigrant in the case of many of the nonimmigrant categories set forth in
section 101(a)(15) of the Act, including the nonimmigrant crewman
classification. Id. at 665. If the respondent complied with the terms of
his admission and did not intend to remain in the United States beyond
the fixed period of his temporary stay, then he was not "domiciled" in
this country. Conversely, if he did, intend to make the United States his

permanent home and domicile, he violated the conditions of his.gdmission and was not here "lawfully." See generally Elkins v. Moreno,
" We find nothing in Parco v. Morris, 962 F. Supp. 976 (E.D, Pa. 1977), a case commended
to us by the respondent concerning a different aspect of the Service policy here involved.
which would lead us to conclude that the respondent's domicile in this country prior to
December 1971 was lawful. In any event, as the Service point: out, Noel v. Chapman, 508
F.2d 1023 (2 Cir. 1975). not Perco v. Morris. supra. governs in the Second Circuit.

109

Interim Decision #2878
supra; Anwo v. INS, supra; Castillo-Felix v. INS, 601 F.2d 459 (9 Cir.
1979); Matter of Anwo, 16 I&N Dec. 293 (131A 1977).

On the basis of the foregoing discussion, we conclude that the
respondent's lawful domicile began with his admission for lawful permanent residence on December 26, 1971, and ended with the termination of
his lawful permanent resident status on July 30, 1076, when the order of

deportation outstanding against him became administratively finaL We
thus hold that the respondent is statutorily ineligible for the relief he
seeks under section 212(c) of the Act. The following order will be enter
ed.
ORDER The respondent's application for relief from deportation
under section 212(e) of the Act is denied.
Board Members Mary P. Maguire and James P. Morris abstained
from consideration of this case.

110


Interim Decision #2832

MATTER OF SEDA
In Deportation Proceedings
A-20879583
Decided by Board October 10, 1980
(1) Section 101(0(3) of the Immigration and Nationality Act, 8 U.S.C. 1101(0(3),
precludes a person from establishing good moral character if he has been convicted of
or admits the commission of a crime involving moral turpitude during the period for
which good moral character is required to be established.
(2) The crime of forgery, to which the respondent pleaded guilty, is a crime involving
moral turpitude.
(3) A conviction exists for immigration purposes when there is a judicial finding of guilt,
the court takes action which removes the case from a pending status, and the action of
the court is considered a conviction by the state for at least some purposes.
(4) The Georgia Act for Probation of Pirst Offenders provides that upon a verdict or a

plea of guilty or nolo contendere, but before an adjudication of guilt, the court may,
without entering a judgment of guilt, defer proceedings, place the defendant on
probation, and subsequently discharge the defendant without court adjudication of
guilt so that he is not considered to have a criminal conviction. Ga. CodeAnn. sections
27-2727, 27-2728.
(5) A person sentenced under a first offender statute which provides for withholding of
adjudication of guilt by the court and discharge without conviction upon successful
,

completion of probation is not considered to be convicted for immigration purposes.

Matter of Kaneda, 16 LEN Dec. 677 (BIA 1979); Matter of Haddad., 16 I&N Dec. 253
(BIA 1977); and Matter of Werk,16 I&N Dec. 234 (BIA 1977), modified.
(6) Where a plea of guilty results in something less, than a conviction, the plea, without
more, is not tantamount to an admission of commission of crime for immigration
purposes, so the respondent, who was not convicted, is not statutorily ineligible for
voluntary departure as a person precluded from establishing good moral character.
(7) Notwithstanding the absence of a conviction by reason of the Georgia Act for
Probation of First Offenders, a plea of guilty to the crime of forgery is a significant
adverse factor in determining whether a favorable exercise of discretion is warranted.
(8) The respondent, who has no family ties or other equities to offset the adverse factors
of his guilty plea to the crime of forgery and the withdrawal of church sponsorship on
the basis of his objectionable behavior, is denied voluntary departure as a matter of
discretion.
CHARGES:
Order. Act of 1952—Sec. 241(a)(9) [8 U.S.C. 1251(a)(9)]—Nonimmigrant student—failed to comply with conditions of status
550

Interim De.cision #2832
Lodged: Act of 1952—Sec. 241(a)(2){8 U.S.C. 1251(a)(2)]—Nonimmigrant student—
remained longer than permitted
ON BEHALF OF RESPONDENT: Dale M. Schwartz, Esquire
1400 Candler Building
Atlanta, Georgia 30303
BY: Milhollan, Chairman; Maniatis, and Farb, Board Members. Concurring Opinion:
Maguire, Board Member. Concurring in Part, Dissenting in Part Appleman. Board
Member

In a decision dated February 15, 1979, the immigration judge found
the respondent deportable on his own admission on the lodged charge,
under section 241(a)(2) of the Immigration and Nationality Act, 8
U.S.C. 1251(a)(2), as a nonimmigrant who remained longer than
authorized. He further denied the respondent's request for voluntary
departure. The respondent has appealed from the immigration judge's
denial of voluntary departure_ The appeal will be dismissed.
The respondent is a 34-year-old native and citizen of Kenya who
entered the United States on September 12, 1973, as a nonimmigrant
student. His status was subsequently changed to that of an exchange
visitor, and his stay was extended to March 22, 1978. At deportation
proceedings, he conceded deportability as an overstay, but denied that
he had failed to maintain his student status as charged in the Order to
Show Cause. The respondent's wife and four children, all natives and
citizens of Kenya, reside in the United States with him.
At deportation proceedings, the trial attorney introduced evidence
that the respondent had pleaded guilty on January 27, 1978, to the
offense of forgery in the first degree in the Superior Court of the State
of Georgia for Fulton County. The record indicates that the respondent
was placed on probation for 5 years under the provisions of the Georgia
Act for Probation of First Offenders and was ordered to make restitution in the amount of $3,585.00. The immigration judge determined on
the basis of that court order that the respondent was statutorily
ineligible for voluntary departure under section 101(f)(3) of the Act, 8
U.S.C. 1101(f)(3), as a person who had been convicted of a crime
involving moral turpitude.
On appeal, the respondent argues that he has not been "convicted" of
the forgery offense because under the Georgia statute relating to first
offenders under which he was sentenced, proceedings are deferred
while the defendant is on probation, and upon fulfillment of probation,
the defendant is discharged without court adjudication of guilt. Ga.
Code Ann. sections 27-2727 and 27-2728. He further cites as applicable
our decisions recognizing that first offender statutes may eliminate the
effect of a conviction for immigration purposes. See Matter of Kaneda,

Interim Decision #2832
16 I&N Dec. 677 (BIA 1979); Matter of Haddad,16 I&N Dec. 253 (BIA
1977); Matter of Werk, 16 I&N Dec. 234 (BIA 1977).
In order to be eligible for voluntary departure, an alien must establish, inter cilia, that he is, and has been, a person of good moral
character for at least 5 years immediately preceding his application
for such relief. Section 244(e) of the Act, 8 U.S.C. 1254(e). Under section
101(f)(3) of the Act, a person is precluded from establishing good moral
character if he has been convicted of or admits the commission of a
crime involving moral turpitude during the statutory period.
The record indicates that the respondent pleaded guilty to forgery,
which is a crime involving moral turpitude. See Matter of Jimenez, 14
I&N Dec. 442 (BIA 1973); Matter of A—, 5 I&N Dec. 52 (BIA. 1953). We,
therefore, must determine whether for immigration purposes the respondent can be considered to have been "convicted" of that offense
under Georgia law or to have admitted commission of the crime.
This Board has repeatedly held that a conviction exists for immigration purposes when the following elements are present: (1) there has
been a judicial finding of guilt, (2) the court takes action which
removes the case from the category of those which are (actually or in
theory) pending for consideration by the court—the court orders the
defendant fined or incarcerated, or the court suspends sentence, (3) the

action of the court is considered a conviction by the state for at least
some purpose. Matter of Robinson,16 I&N Dec. 762 (BIA 1979); Matter
of Varagianis, 16 I&N Dec. 48 (BIA 1976); Matter of Pikkarainen, 10
I&N Dec. 401 (BIA. 1963); Matter of L—R—, 8 I&N Dec. 269 (BIA 1959).
The pertinent sections of the Georgia statute relating to first
offenders provide as follows:
Probation for first offenders; when applicable; violation of terms of probation—
Upon a verdict or plea of guilty or a plea of nolo contendere by [sic] before an
adjudication of guilt, the court may, in the case of a defendant who has not been
previously convicted of a felony, without entering a judgment of guilt and with the
consent of the defendant, defer further proceeding and place the defendant on
probation as provided by the Statewide Probation Act [sections 27-2702 through 272726.1]. Upon violation of the terms of probation, or upon a conviction for another
crime, the court may enter an adjudication of guilt and proceed as otherwise
provided. No person may avail himself of the provisions of this law [sections 27-2727
through 27-2732] on more than one occasion.

Same; discharged probationer not to be considered to have criminal conviction;
records of probation—
Upon fulfillment of the terms of probation, or upon release by the court prior to
the termination of the period thereof, the defendant shall be discharged without
court adjudication of guilt. Such discharge shall completely exonerate the defendant
of any criminal purpose ; shall not affect any civil right nr lihertics, and he shall not
be considered to have a criminal conviction. Should a person be placed under
probation under this law [sections 27-2727 through 27-2732], a record of the same
shall be forwarded to the office of the State Probation System and to the Identifies-

552

Interim Decision #2832
tion Division of the Federal Bureau of Investigation. Ga. Code Ann. sections 27-2727,
27-2728 (emphasis added).

In interpreting these provisions, the Supreme Court of Georgia has
imposed, the defendant's
trial has, in effect, been suspended, and if he successfully completes the
probationary sentence without violations, no formal act of conviction
is rendered. See Favors v. State, 214 S.E2d 645 (Ga. 1975); State v.
Wiley, 210 S.E.2d 790 (Ga. 1974). Thus, the clear language of the statute
and the judicial interpretation thereof indicate that a defendant
sentenced under the Georgia Act for Probation of First Offenders is
not convicted unless and until he violates the terms of his probation or
is convicted of another crime, at which time an adjudication of guilt
may be entered by the court. Therefore, under the standards previously set forth, the probationary sentence imposed on a defendant
under that Act should not be considered to be a "conviction" for
immigration purposes. See Pin() v. Landon, 349 U.S. 901 (1955); cf.
Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968); Matter of G—, 9
I&N Dec. 159 (BIA 1960; A.G. 1961).
In previous decisions, this Board has treated other first offender
statutes, the language of which is nearly identical to the Georgia Act,
as expungement statutes. See Matter of Kaneda, supra; Matter of
Haddad, supra; Matter of Werk, supra. In Werk we accepted the
Service policy that the federal first offender statute, 21 U.S.C.
844(b)(1), which dealt only with narcotics convictions, was comparable
to the Federal Youth Corrections Act, 18 U.S.C. 5005, et seq. That Act,
as well as its state counterparts, had been held to expunge narcotics
convictions of youth offendersc for deportation purposes. See Matter of
stated that during the probationary period

Andrade, 14 I&N Dec. 651 (BIA 1974); Matter of ingis, 14 I&N Dec. 621
(BIA 1974). We, therefore, held that convictions under the federal first
offender statute could be considered expunged for deportation
purposes.

Our subsequent inquiry in Haddad and Kaneda, which dealt with
state first offender statutes, was limited to determining whether the
statute involved was the state counterpart of the federal statute. Thus,
the threshold question of whether there was a conviction in existence
which could be expunged was never addressed. Although in Werk we
quoted a Service memorandum stating that the "legislative history
indicates that discharge and dismissal under [21 U.S.C. 844(b)(1)1 shall
not be deemed conviction of a crime," we have continued to refer to the
federal first offender statute and its state counterparts as having the
effect of expunging a conviction.

We now hold that a person sentenced under a first offender statute,
which provides for withholding of adjudication of guilt by the court
and discharge without conviction upon successful completion of proba-

Interim Decision #2832
tion, shall not be considered to be "convicted" for immigration purposes. Our decisions in Matter of Werk, supra, Matter of Haddad,
supra, and Matter of Kaneda, supra, are modified to comport with this
view.
We must next determine whether the respondent's plea of guilty
constitutes an admission of commission of the crime, which also would
render him ineligible for voluntary departure. Ordinarily, a plea of
guilty in a criminal prosecution is regarded as an "admission" within

the meaning of the immigration laws. Blumen v. Hoff, 78 F.2d 833 (9
Cir.), cert. denied, 296 U.S. 644 (1935); Matter of K—, 9 I&N Dec. 143
(S.I.O. 1959, ETA 1959, A.G. 1961); Matter of P , 4 I&N Dec. 373 (BIA
1951). However, where a plea of guilty results in something less than a
conviction, it has been held that the plea, without more, is not
tantamount to an admission of commission of the crime for immigration purposes. Matter of Winter, supra. Since we have found that the
respondent's guilty plea does not amount to, a conviction, it also cannot
be considered to be an admission of commission of the crime. Accordingly, we find that the respondent is not statutorily ineligible for
voluntary departure as a person precluded by section 101(1)(3) from
establishing good moral character.
A grant of voluntary departure is a matter of discretion, however,
and an alien must not only establish that he is statutorily eligible, but
also that he is worthy of discretionary relief. See Matter of Turcotte,12
I&N Dec. 206 (BIA 1967); Matter of Mariann 11 I&N Dec. 210 (BIA
1965). Consideration of an application for voluntary departure involves
many factors, including the alien's prior immigration history, the
nature of his entry, and his violations of the immigration and other
laws, as well as the length of residence in this country, close family
ties, and humanitarian needs. See Matter of Gamboa, 14 I&N Dec. 244
(BIA 1972).
In the instant case, the respondent pleaded guilty to the crime of
forgery. Although we have determined that such a plea does not render
him statutorily ineligible for voluntary departure, we believe it is a
significant adverse factor to be considered in deciding whether a
—

favorable exercise of discretion is warranted. CI Matter of Tureotte,

supra; Matter of Pitzoff, 10 I&N Dec. 35 (BIA 1962).

In addition, the church sponsor who took the respondent into his
home upon his arrival in the United States testified at deportation
proceedings that he asked the respondent to leave his house and that
the church withdrew its sponsorship of the respondent due to his
behavior. Although the respondent attempted to rebut the accusations
made against him, we believe that the witness's testimony and the fact

that church sponsorship was withdrawn must be viewed as negative
factors in our determination on discretion.
554

Interim Decision #2832
The respondent's wife and children are citizens of Kenya whose
status in this country is dependent on that of the respondent. Therefore, he cannot be considered to have close family ties in the United
States. No other equities have been presented by the respondent to
offset the adverse factors in this case. Accordingly, we conclude that
voluntary departure should be denied as a matter of discretion. The
appeal will be dismissed.

ORDERS The appeal is dismissed.
DISSENTING IN PART AND CONCURRING IN PART:

Irving A. Appleman,
Board Member
I concur in that portion of the decision which finds there was no
conviction in view of the Georgia first offender statute under which the
respondent was sentenced, and in the denial of voluntary departure as
a matter of discretion.
However, I am disturbed by the remainder of the majority opinion.
The purpose of the comments regarding Matter of Werk, 16 I&N Dec.
234 (BIA 1977), Matter of Haddad, 16 I&N Dec. 253 (BIA 1977), However, I am disturbed by the remainder of the majority opinion. The
purpose of the comments regarding Matter of Werk, 16 I&N Dec. 234
(BIA 1977), Matter of Haddad, 16 I&N Dec. 253 (BIA 1977), and Matter
of Kaneda,16 I&N Dec. 6'77 (BIA 1979), is not clear. Those holdings are
not necessarily germane to an inquiry into the language and meaning
of the Georgia statute we are concerned with here, and if the intent is
to impeach them, it is done in a singularly imprecise and unscholarly
way. Thus the majority notes: "In previous decisions this Board has
treated other first offender statutes, the language of which is nearly
identical (emphasis supplied) to the Georgia Act, as expungement
statutes." No analysis or comparison is made of the statutes in question, but the decisions in Matter of Werk, supra, Matter of Haddad,

supra, and Matter of Kaneda, supra, are "modified" to comport with

though it is not shown what, or why, "modification" is needed.
The decision in Matter of Werk was premised on a Wisconsin first
offender statute which, according to representations made by the
Immigration and Naturalization Service, was a counterpart to 21
U.S.C. 844(b)(1), which, in turn, was the equivalent, in the narcotics
field, of the Federal Youth Corrections Act, 18 U.S.C. 5010, et seq. Since
both 21 U.S.C. 844(b)(1) and 18 U.S.C. 5010 are statutes which suspend
the imposition or execution of sentence after a finding of guilt, it is
clear that the Service motion to terminate in Werk rested on an
assumption there was a conviction in that case. Whether the Service
the present decision even

Interim Decision #2832
would agree that termination was warranted in Werk on an assumption there was no conviction is not known, nor has the Service been
given a chance to brief or argue the point. Nor is it clear whether, in
casting doubt on the interpretations of state first offender statutes

such as that in Werk, the majority also questions the reasoning in
decisions involving the application of 21 U.S.C. 844(b)(1} to narcotics
convictions, or the Federal Youth Corrections Act to other "convictions" (see e.g., Matter of Zingis, 14 I&N Dec. 621 (BIA 1974)).
In point of fact there is a very significant difference between (a) the
Georgia statute, and (b) the Wisconsin statute in Work, the Michigan
statute in Haddad, and the Virginia statute in Kaneda. That difference
has been completely overlooked or ignored by the majority, and makes
any "modification" very questionable.
In Matter of 0—, 7 I&N Dec. 539 (BIA 1957), in defining a "conviction" for deportation purposes, this Board attempted to explain the
difference between a statute suspending the imposition or execution of
sentence, and one which specifically postponed any consideration of a
case. Only in the latter instance does, the criminal proceeding fail to
achieve the finality necessary to support an order of deportation. Id. at
543. All of the statutes involved (i.e., in Werk, Hculdad, and Kaneda, as
well as here), speak of the non entry of a judgment of guilt_ Only nne,
-

however, the Georgia statute, specifically - stipulates deferment of
proceedings "before an adjudication of guilt . ." Ga. Code Ann. section
27-2'727 (emphasis supplied). The entry of formal judgment of guilt in a
criminal proceeding is a quite different matter from an adjudication of
guilt. See generally Matter of 0—, id. at 542. Hence, even though under
the Georgia statute the "prior finding of guilt may be pleaded and
proven as if an adjudication of guilt had been entered ..." in the event

of a subsequent prosecution for another offense (Ga. Code Ann. section
27-2730), and the respondent is still on "probation" (Ex. 5), I nevertheless agree that there was no conviction here, but rather a complete
deferment of the criminal proceeding without any finding of guilt. Cf.
de Lara v. U.S., 439.F.24 1316 (5 Cir. 1971); Pino v. Landon, 349 U.S. 901
(1955).
On the other hand, a conviction acquires sufficient finality to sustain
deportability when no further consideration is required as to innocence or guilt. Matter of Johnson, 11 I&N Dec. 401 (BIA 1965). This
was the case in Matter of Haddad, Matter of Werk and Matter of
Kaneda, supra. Under the statutes in those cases the defendants were
clearly adjudged guilty, although no formal entry was made in the
criminal record, or, if made, it was subsequently eradicated. All that
was involved was a suspension of imposition of judgment and sentence,
with subsequent expungement, and this is a conviction for deportation
purposes. Matter of Cruzculo,14I&N Dec. 513 (BIA 1973). Significantly,
MR

Interim Decision #2832
if there were no "convictions" in the Werk-type cases, as the majority
now appears to find, notwithstanding adjudications of guilt, then
deportation for hard narcotics "convictions," after expungement
under statutes such as section 1772 of the Welfare and Institutions

Code of California, arguably is now open to challenge.'
I see no reason for disturbing the earlier decisions at this time. They
appear to be correct and, in any event, their consideration is not
necessary to the determination in this case. If the majority thought
them relevant, one would have hoped for, and expected, a more satisfactory and lucid justification for "modification" than that the statutes
involved are "nearly identical." Since the relief is being denied as a
matter of discretion in any event, it is hard to understand the need for
a rash venture into this particular legal thicket. Bagam,asbad v. INS,
429 U.S. 24 (1976). I expressly dissent from the attack on those
precedents.
CONCURRING OP

Turns Mary P_ Maguire, Board

Member

Contrary to the suggestion in the dissent, the intent of the majority
opinion is not to impeach, but to clarify the Board's former decisions
which were decided on a theory which the majority now finds to be

incorrect. Therefore, in order to be legally precise and consistent in our
rulings, the majority believes that they should be amended to reflect
the Board's current opinion. In my view, it would indeed be unscholarly
to leave unrevised a decision which the majority believed to be founded
on legally erroneous conclusions.
The dissent correctly points out that the Board's decision in Matter
of Werk, 16 I&N Dee. 234 (B1A 1977), was premised on a Service memo
which referred to the federal first offender statute, 21 U.S.C. 844, as the
"equivalent" in the narcotics field of the Federal Youth Corrections
Act. However, the dissent states further that these statutes are similar in that both suspend tife imposition or execution of sentencing

after a finding of guilt. Examination of the statutes reveals the fallacy
of that statement

Under the Federal Youth Corrections Act, the court may suspend
the imposition or execution of sentence of a youth offender and place
him on probation. It may then discharge him from probation, which
' Attorney General, of course, and the Ninth Circuit have consistently upheld deportsbility in such cases despite expungement. Matter c(A—F—, 8 I&N Dec. 429 (A.G. 1959),
(led, Arrellano-Flores v. Hoy, 262 F.2d 667, cert. denied, 362 U.S. 721(1960); cf. Matter of
Andrade,14 IAN Dec. 651 (CIA 1974); see also Matter of G—, 9 Itr,N Dec.159 (A•G, 1961);
Kelly v. INS, 349 F.2d 473 (9 Cir. 1965), cert. denied, 282 'U.S. 932 (1965); Garth Gonzales
v. INS, 344 F.2d 804 (9 Cir. 1965). The dicta as to Werk, etc., would seem to fly in the face
of these holdings.
err,

Interim Decision # 2832
effectively sets aside the conviction. We have found that this statute
provides for a total expungement which eliminates the conviction as a
basis for deportation. See Matter of Berker, Interim Decision 2511
(BIA 1976); Matter of Zingis, 14 I&N Dec. 621 (BIA 1974); see also
Matter of Andrade, 14 I&N Dec. 651 (BIA 1974).
The federal first offender statute, on the other hand, provides that
there is no conviction if the court defers proceedings without entering
a judgment of guilt and later discharges the defendant and dismisses
the proceedings against Mm after successful completion of probation.
This statute, as well as each of the state statutes we have considered,
specifies that such discharge and dismissal shall be without court
adjudication of guilt and shall not be deemed a conviction. The Service,
in fact, notes in its memorandum that the legislative history of the
statute supports the conclusion that no conviction exists upon dis-

charge and dismissal.
Thus, it is clear that these two statutes are by no means procedurally
equivalent to one another. They are comparable, however, in that they
provide a means to ameliorate the stigma of conviction for a certain

class of offenders to whom Congress sought to extend leniency. I
believe that the Service's use of the term "equivalent" was intended to
equate the effect rather than the legal function of the two statutes and
to reflect its conclusion that an alien sentenced under either statute
should not be subject to deportation. Inasmuch as the Service recognized that no conviction resulted under the first offender statute, and
advocated that it be treated in the same manner as the Federal Youth
Corrections Act, I have no doubt that it would approve of the conclusion reached in the majority opinion.
I would note, however, my confusion with the dissent's question
regarding the application of the Board's reasoning to cases involving
21 U.S.C. 844(b)(1) in narcotics convictions or the Federal Youth Corrections Act in other convictions. The federal first offender statute, by
its very language, is limited to narcotics offenses, so it can only be
applied in such cases. Furthermore, as we have distinguished the
procedure used in first offender statutes from that in the Federal
Youth Corrections Act and its state counterparts, I do not see how it

could logically be inferred that the majority's decision in this case
affects our decisions regarding the Federal Youth Corrections Act in
either narcotics or non-narcotics cases. See Matter of Zingis, supra;
Matter of Nagy, 12 I&N Dec. 623 (BIA 1968). Moreover, if the majority
had believed that such decisions were altered by its opinion in this
case, the majority would have so stated.
I also wish to note my disagreement with the conclusion in the
dissent that there are significant differences between the Georgia
statute and the other first offender statutes which this Board has
558

Interim Decision 112832
examined. The difference claimed is that the Georgia statute specifies
that the proceedings may be deferredi before an adjudication of guilt,
whereas the others speak only of the nonentry of a judgment of guilt. It
is also stated in the dissent that the entry of a formal judgment of guilt
is different from an adjudication of guilt, with citation being made to
Matter of 0—, 7 I&N Dec. 539, 542 (BIA 1957).
I would first point out that 21 U.S.C. 244(b)(1), on which our rulings
regarding the state first offender statutes rely, states that if a person is
found guilty, after trial or upon a plea of guilty, the court may, without
entering a judgment of guilt, defer proceedings and place him on
probation and, upon violation of the conditions of probation, may enter
an adjudication of guilt and proceed to sentencing. Furthermore, each
of the state statutes also provides for deferment of proceedings following a plea or finding of guilty without a j udgment of guilt being entered
by the court. Inasmuch as proceedings are deferred under each of the
statutes and no judgment of guilt is entered by the judge, I am unable
to determine what, if any, are distinguishing factors.
In regard to the contention that a judgment of guilt differs from an
adjudication of guilt, I maintain that these terms are synonymous. See
Black's Law Dictionary, 63 (5th ed. 1979); Webster's New Collegiate
Dictionary, 15 (1977). I believe that the dissent has confused the
situation where the court, upon a guilty plea or jury verdict, finds the
defendant guilty and enters a judgment of guilt but declines to impose
a sentence, and that where the court, also following a plea or verdict,
decides to defer proceedings and refrains from entering a judgment of
guilt. These two circumstances were discussed in Matter of 0—, supra,
where it was concluded that the former case resulted in a conviction
while the latter did not. I would agree and cite the Federal Youth
Corrections Act as an example of a case where judgment may be
entered but imposition of sentence suspended, and the first offender
statutes as a situation where no adjudication of guilt is made by the
court. Under either set of circumstances, a guilty plea or finding of
guilt by a jury may be present, but the subsequent act of the judge
determines whether a conviction exists for immigration purposes. If
proceedings are deferred, there is no conviction, but a conviction
results if the court enters a judgment, regardless of whether sentence
is actually imposed or either the imposition or execution of sentence is
suspended. See Pino v. Landon, 349 U.S. 901(1955); Matter of Robinson,
16 I&N Dec. 762 (BIA 1979); Matter of 0—, supra.
It is also argued by the dissent that this case is distinguishable from
our previous decisions in that the defendants there were adjudged to
be guilty by the court and were sentenced to fine or imprisonment or
both. This is true. However, in each case, the conviction was later set
aside, placing the defendant back in the position of one whose guilt had

Interim Decision #2832
not yet been adjudicated. Imposition of the sentence was not merely
suspended, as the dissent suggests, but the conviction, including the
adjudication of guilt, was totally eradicated. See Matter of aneda, 16
I&N Dec. 677 (MA. 1979); Matter of Sirhan,18 I&N Dee. 692 (BIA 1970);
Matter of O'Sullivan, 10 I&N Dec. 320 (BIA 1963). The court then
resentenced the defendant under the first offender statute and discharged him by dismissing the proceedings pursuant to the statute. I,
therefore, remain convinced that such discharge and dismissal under
each of the first offender statutes does not amount to a conviction, as is
manifest from language of each statute, and believe that our decision
correctly so states.

can


Interim Decision #2234

MATTER OF GUTIERREZ
In Deportation Proceedings
A~14176560
Decided by Board September 25, 1973

An alien’s deportation from the United States does not deprive his minor citizen
children of any rights under the Constitution.

CHARGE:

Order: Act of 1952 — Section 241(a)(1) [8 U.S.C. 1251(aX1)] —Excludable as
immigrant without valid immigrant visa.
ON BEHALF OF RESPONDENT: Robert L. Millard, Esquire
El Paso Legal Assistance
Society
109 North Oregon Street
El Paso, Texas 79901

This is an appeal from an order of an immigration judge denying
the respondent’s application for suspension of deportation and
voluntary departure. The appeal will be dismissed.

The respondent is a 31-year-old married male alien, a native and
citizen of Mexico, who last entered the United States on or about
July 6, 1972. He was not then in possession of a valid nonimmi-
grant visa or border-crossing identification card and was not
exempted from the possession thereof. Furthér, he entered the
United States for the purpose of residing here and has not been |
admitted into the United States for permanent residence. The
immigration judge found the respondent deportable under section
241(aX1) of the Immigration and Nationality Act. Our review of
the record satisfies us that deportability is established by evidence
which is clear, convincing and unequivocal.

The facts have been fully stated in the immigration judge’s
opinion and need not be repeated. After carefully appraising the
evidence in the light of pertinent legal principles, the immigration
Judge concluded that the respondent is statutorily ineligible for (1)
the privilege of suspension of deportation; and (2) the privilege of
voluntary departure.
Interim Decision #2234

On appeal counsel contends (1) that the respondent is entitled to
suspension of deportation because deportation would result in
cruel and unusual punishment to the respondent and his United
States citizen children; (2) that the respondent’s deportation and
exclusion is based on a conviction secured by a Mexican court
without due process of law; (3) that the respondent's deportation
unjustly discriminates against his United States citizen children
in violation of the Fifth Amendment; (4) that the deportation of
the respondent is, in effect, the deportation of his dependent
United States citizen children, contrary to the Fifth Amendment,
and deprives the children of life, liberty and property without due
process of law; and (5) that the deportation of the respondent is in
fact deportation of the children and is contrary to the Thirteenth
Amendment of the United States Constitution.

We reject counsel’s contentions that these proceedings deprive
the respondent, and his United States citizen children, of due
process of law under the Fifth Amendment to the Constitution of
the United States, constitute cruel and unusual! punishment in
violation of the Eighth Amendment to the Constitution, and are
violative of the Thirteenth Amendment to the Constitution be-
cause such contentions properly rest in the courts rather than this
administrative tribunal, Matter of H—, 3 1. & N. Dec. 411, 456 (BIA
1949), Matter of L—, 4 I. & N. Dec. 556, 557 (BIA 1951).

Understandably, the respondent’s children will suffer some
hardship if their father is deported. Nevertheless, it is one of the
incidents of this situation, and is not due to any act or conduct of
the Government. Contrary to assertions in respondent’s brief on
appeal, respondent’s deportation does not deprive his minor citizen
children of any rights under the Constitution. See Application of
Amoury, 307 F.Supp. 213 (S.D.N.Y. 1969); Perdido v. INS, 420 F.2d
1179 (C.A. 5, 1969); Aaluid v. Marshall, 323 F.Supp. 1380 (E.D.
Texas 1971), aff'd 469 F.2d 1405 (C.A. 5, 1973); Dayao v. Staley, 303
F.Supp. 16 (S.D. Texas 1969).

We reject counsel’s contention that it was incumbent on the
Service to show that United States constitutional standards were
applied to the foreign conviction which serves as a basis for denial
of suspension of deportation. First, since the respondent was
convicted of the offense of unlawful possession of a narcotic drug,
to wit, marijuana, we are bound by the criminal record and may
not go behind it, Giammario v. Hurnéy, 311 F.2d 285 (C.A. 3, 1962);
Rassano v. INS, 377 F.2d 971, 974 (C.A. 7, 1966). Second, there is no
requirement that a foreign conviction must conform to constitu-
tional guarantees in the United States, Matter of M—, 9 1. & N.
Dec. 182 (BIA 1960).

The immigration judge denied the respondent suspension of

458

Interim Decision #2234

deportation pursuant to section 244(a\(1) of the Act because of the
marijuana conviction, the respondent was precluded from estab-
lishing the requisite good moral character for the past seven years
under the provisions of section 101(fX3) of the Act, and further
because he has failed to establish the requisite seven years of
physical presence in the United States. The immigration judge
also denied the respondent’s application for voluntary departure
because the respondent could not establish that he was a person of
good moral character for the five-year period as required under
section 244(e) of the Act. The immigration judge concluded that
the conviction barred, as a matter of law, a finding of good moral
character by virtue of section 101(f3). We agree with the immigra-
tion judge’s conclusions. Hence, respondent’s appeal is without
merit and must be dismissed. The following order will accordingly
be entered.
ORDER: The appeal is dismissed.

459


Interim Decision #2198

MATTER OF DONOSO
In Visa Petition Proceedings
A-19368215
A-19368216
A-19368217
Decided by Board April 27, 1973
The preference classifications of section 203(a) of the Immigration and Nationality Act, as amended, are not available to a native of an independent country of
the Western Hemisphere. Hence, beneficiaries, who were born in Ecuador, are
ineligible for preference classification under section 203(a)(2) of the Act as the
unmarried children of the lawful permanent resident petitioner.

The lawful permanent resident petitioner filed applications to
classify the status of the beneficiaries as his unmarried children
under section 203(a)(2) of the Immigration and Nationality Act.
The District Director denied the applications because the beneficiaries, who were all born in Ecuador, are natives of the Western
Hemisphere and, consequently, not eligible for any preference
under the Immigration. and Nationality Act. The petitioner appealed. His appeal will be dismissed.
The preference categories established under section 203(a) of the
Act are available to' aliens who are subject to the numerical
limitations system specified in section 201(a) of the Act. Section
201(a) specifically excludes "special immigrants" from its scope.
According to section 101(aX27XA), persons born in an independent
foreign country of the Western Hemisphere are "special inimigrants." Because of their birth in Ecuador, an independent country of the Western Hemisphere, there is no preference category
available to the beneficiaries. Hence, the District Director's decision was correct.
Even though , we must dismiss the petitioner's appeal, we feel we
should point out that there are two possible courses of action that
may be open to him. First, if he were to become naturalized, he
could bring his unmarried children under the age of 21 years into
the •United States as his "immediate relatives" under seetion

201(b) of the Act. Immediate relatives who are otherwise qualified
342

Interim Decision #2198
are admitted without regard to numerical limitations. We mention
this possibility inasmuch as the record indicates that the petitioner was admitted as an immigrant in 1967, and the residence
requirement for naturalization contained in section 316(aX1) of the
Act is five years. Second, the petitioner could apply for special
immigrant visas for his children. This would establish a priority
date for them under the Western Hemisphere annual limitation of

120,000. Pursuant to section 21(e) of the Act of October 3, 1965 (P.L.
89-236, 79 Stat. 920), a special annual ceiling was established for
Western Hemisphere special immigrants (other than those who
qualify as immediate relatives under section 201(b)).. There are no
preference classes within the Western Hemisphere quota, and
Western Hemisphere special immigrants will be considered for
entry, without priority, on a first -come, first served basis.
Petitioner's notice of appeal contains the contention that the
District Director's decision was discriminatory. We regard this as
an attack on the constitutionality of the statutory arrangement
under which natives of independent countries of the Western
Hemisphere do not come within the scope of the preference system
set forth in section 203(a), but come under the Western Hemisphere annual ceiling as special immigrants instead. In Mcitter of
Santana, 13 I. & N. Dec. 362 (BIA, 1969), we rejected a similar
argument. We held in the Santana case that Congress has the
-

absolute Sand unqualified power to prescribe the conditions under

which an alien may enter the United States. We also reiterated
the conclusion that we lack power to pass upon the validity of the
statutes we administer:
Therefore, despite the sympathetic aspects of this case, we have
no alternative but to uphold the District Director's decision and
dismiss the appeal. The following order will accordingly be entered.
ORDER: The appeal is dismissed.

343


Interim Decision #2940

APPENDIX A
LEGITIMATION
Ecuador
This report concerns the requirements for legitimation in Ecuador
from 1936 to the present.
During this time period, legitimation was apparently controlled by a
number of provisions contained in the different constitutions that were
successively .in force in the country and in the Civil Code. Since these
provisions may not reveal a clear sequence, a brief legislative history
follows.
A.

Civil Code Provisions in Force until the Enactment of the 1945
Constitution

As of 1945, the Civil Code' established and defined two•basic categories of children: legitimate and illegitimate. Legitimate children were

those conceived during a fully valid or putative marriage of their parents,
as well as those whose parents had married each other after their
conception. Illegitimate children were those who had been voluntarily
acknowledged as such by either parent or both parents, as well as those
who had been declared to be so by judicial decision.'
Regarding children born out of wedlock, the Code provided that they
could be acknowledged by either parent or both parents. In such cases,
these children were to enjoy the rights assigned to them by law in
relation to the acknowledging parent or parents. 3 The acknowledgment
of children could be made by means of a public instrument which could

be: (a) notarial, (b) issued before a judge and three capable witnesses,
(c) on a will, (d) a personal statement issued at the time of registration
of the birth, or (e) a part of the marriage record of the parents. 4 A -child
who had not been voluntarily acknowledged by the parents could petition the courts to issue a declaration of filiation in regard with either
parent or both parents.'
A 1930 version of the Ecuadorean Civil Code as amended by Supreme Decree 94 of
Nov. 23, 1935, was consulted for this part of the report: Codigo Civil (C. Civ. I] lTalleres
Graficos Nacionales, Quito, 1930].
2 C. Civ. I, arts. 30, 31 and 269.
3 C. Civ. I, arts. 267 and 271.
4 C. Civ. I, arts. 201 and 269.
5 C. Civ. I, arts. 277-289.

393

Interim Decision #2940
With regard to legitimation, the.Civil Code, as amended by Supreme
Decree 94 of November 21, 1936, 6 provided that the marriage of the
parents to each other produeed the effect of legitimating ipso itcre the
children conceived or born prior to the celebration of that marriage."'
Children born prior to the marriage who were not acknowledged by
both parents did not benefit by the ipso jure legitimation by subsequent
marriage of their parents; the acknowledgment by both parents as
described above is necessary. This acknowledgment could take place at
any time.
In short, legitimation of children born out of wedlock required two
basic elements: (1) acknowledgment of filiation by both parents and (2)
subsequent marriage of the children's parents to each other'
B. Provisions of the 1945 Constitution
On March 6, 1945, a new Constitution was enacted which provided
that legitimate and illegitimate children had the same rights to support
and inheritance. ° The new Constitution also provided that in registering

births no statement could be required concerning the status of filiation."
The Constitution did not farther elaborate on the effects of these new
rules upon the existing provisions. of the Civil Code. The only other
applicable provision was contained in article 163, which provided that
any laws, decrees, regulations, ordinances, etc., which were in any way
contradictory to it or which departed from its text had no validity.ii
This Constitution was in force for only a few months, however, and
therefore, according to Dr. Juan Larrea Holguin," its provisions did not
affect other laws governing the subject or judicial decisions rendered on
the matter after itvenactraent."
6 J. Torres, Compilation de Rqjormas at Codigo Civil,
Leyes y Reglamentos Conexos
(Talleres Graficos del Ministerio de Gobierno, Quito, 1942].
T Id. at 17, art. 11, amending C. Civ. I, art. 200.,
Civ. I, arts. 201 and 202.
9 Ccntstitucicm, art. 142 (3) (1945) [R. Borja y Borja, Las Constitaciones del Ecuador
(Editions Culturallispanica, Madrid, 1951)] (hereinafter cited as Borja).
10 Id., art. 142 (4). This provision implied en important change in the existing system
where the Registry of Births at the Civil. Registry was formed by three sections: (1) for

legitimate children, (2) for illegitimate children, and (3) for children either abandoned or
with unknown parents.
Constitution, art. 163 (1945) (Borja at 622).
Dr. Larrea Holguin is a professor of law at the Universidad Catolica del Ecuador, and
author of numerous books and articles concerning civil laNi. He has also been active in the
drafting of bills amending Civil Code provisions.
'7-9
18 J. Larrea Holguin, Igualdodes de Los Conyuges e Igualdades de Los Hijos
(Corporation de Estudios y Pubteaciones, Quito, 1967). ft,should also be noted that, in
pieparing this report, several updated versions of the Civil Code were consulted and
appear to contain no amendments based on the 1945 Constitution.
u

38

.

394

Interim Decision #2940
C. Provisions of the 1946 Constitution
On December 31, 1946, the Constitution of 1945 was repealed and

replaced by a new one which made a differentiation between legitimate
and illegitimate children regarding inheritance rights." It also provided
the following:
Art. 165. The law shall regulate all matters relating to filiation and its rights and
investigation of paternity. In registering births, no statement may be required concerning the status of filiation.

No significant amendments were apparently introduced to the Civil
Code concerning this subject; therefore, the legal status of filiation and
legitimation remained the same as described in section A above until
May 25, 1967, when a new Constitution entered into force."
D. Provisions of the

1967 Constitution

The new. Constitution

regulated this subject in the following terms:

Art. 29. . . . Children, whether born in or out of wedlock, have the same rights with
regard to name, upbringing, education and inheritance.
The law shall regulate matters pertainingto filiation and shall facilitate investigation
as to paternity.
In registering births, no statement shall be required concerning the status of filiation.'

This provision and others concerning various matters were contrary
to the existing provisions of the Civil Code and related laws and
regulations. The Constitution provided its own supremacy in the follow:
ing terms:
Art. 257. The Constitution is the supreme law of he State. All other laws must be in
conformity with constitutional principles; therefore, any laws, decrees, regulations,
ordinances, provisions, and public treaties that are in any way contradictory to it are
null and void.
Art. 260. This Constitution repeals all previous juridical precepts that are contrary to
its provisions, whether issued by legitimate authorities or by de facto governments, so
that any Jaws, decrees, regulations, decisions, orders, or resolutions issued before the
Constitution takes effect shall be in force only insofar as they_are in conformity with it,
and provided that they are not or have not been repealed or revoked, with the exception

of rights validly acquired in accordance with such precepts.,

E. Current Civil Code Provisions
Given the constitutional provisions in force, a new version of the Civil
a Constitution, art.

164 (1946) (Borja at 681).
Is The new Constitution was enacted, published in the Registro Off iat and entered into
force on the same date, May 25, 1967.
16 Constitution (1967) [Organization of American States, Washington, 1968) (English
version).

395

Interim Decision #2940
Code was necessary in order to adapt its provisions to the new norms
and to clarify the existing legal situation in several areas. A special
commission was charged with drafting a bill containing the necessary
amendments to the Civil Code."
The draft prepared by the special commission was almost entirely
accepted by the Legislative Commission of Congress. The Legislative

Commission expressed the opinion, however,. that no distinction should
be made between legitimate and illegitimate children, so that all children should have not only the same rights but also the same denomination."
• Congress approved this bill in the terms established by its own Legislative Commission and sent it to the President for its enactment. The
President, however, objected to the part of the bill that eliminated the
categories of legitimate and illegitimate children because he understood
that "the Political Constitution in force does not imply that the categories of legitimate and illegitimate children have disappeared."' The
Legislative Commission reiterated its position and Congress overrode

the President's objections.' Finally on June 4, 1970, the law amending
the Civil Code was enacted.'
The new law eliminated the expressions "legitimate and "illegitimate"
from the Civil Code when they referred to children, and all of the
provisions concerning legitimation were suppressed. The procedures for
acknowledging children born out of -wedlock, however, remained the
same as described earlier, although the numeration of the articles of the
Civil Code dealing with them was changed.' The only novelty contained
in the new Code on this subject was that the acknowledgment was now
permitted from the time of the child's conception."
F. New Constitutional Developments

As said before, the Civil Code was amended in order to adjust its
provisions to the 1967 Constitution. However, on June 22, 1970, several
days after the amendments were enacted, the President in a de facto

decision assumed all the powers of the State, repealed the 1967 Constitution and declared the 1946 Constitution to be in force "to the extent to
17 This commission was formed by Drs. Juan Larrea Holguin and Francisco Costales
Herrera.
18 6 J. Larrea Holguin, Derecho Civil del Ecuador 9 (Corporacion de Estudios y
Publicaciones, Quito,•1970) [hereinafter cited as Larrea II].
19 Letter of President Jose M. Velasco to the Permanent Legislative Commission of
Congress, Apr. 1, 1970, cited in Larrea II at 318.

Larrea II at 326.

Law 256 of June 4, 1970, Registro Official (R.0.), June 4, 1970.
Codigo Civil (C. Civ. II], arts. 261-274 [7th ed., R.O. Sup. 104, Quito, Nov. 20, 1970].
n C. Civ. II, art. 261(2).

396

• Interim Decision #2940
which it is not contrary to the purposes of the Government." 24 Although
both- Constitutions did not differ substantially in other matters, they
were In disagreement with regard to the existence of legitimate and
illegitimate children. The 1946 •Constitution expressly acknowledged
the categories and granted better inheritance rights to legitimate
children.' This fact created uncertainty about the applicability of the
recent reforms to the Civil Code that was finally resolved by the
promulgation of Supreme Decree 180 that declared in force the amendments of June 4, 1970."
On January 15, 1972, a new de facto Government took power and
issued a decree repealing the 1946 Constitution and declaring in force
the Constitution of 1945. 27
On January 11, 1976, a Military Junta took power and declared in
force once again' the 1945 Constitution "in all matters in which it is not
inconsistent with the purposes of political transformation."'
On January 15, 1978, a national referendum approved a new Constitution, which took effect on August 10, 1979, with the inauguration of the
President and Vice President of the Republic' elected inJuly 1978. This
new charter states that in registering births and in identification documents no statement may be made as to the status of filiation."Apparently these last constitutional changes had no bearing on the
Civil Code provisions concerning legitimation. No judicial precedents or
legal literature on the subject are available to better interpret this legal
situation: The only additional information available is a provision in the
new Civil Registry Law.3I Article 129 of this law provides that "for all
legal purposes, acknowledgment and legitimation of children shall be
considered equivalent."
The Code of Minors currently in force, enacted on June 2, 1976, 32 also
makes no distinction between legitimate and illegitimate children. It
specific'lly extends its protection and benefits to all children regardless
of their family status.
In conclusion, it appears that under the early Civil Code and related

laws the basic requirements for legitimation were the acknowledgment
of the child by both parents and their subseqUent marriage to each
other, while under the current Civil Code there is no longer a distinction
Larrea II at 11.
"26
27

Constitucion, art. 164 (1946) (Borja at 681).

Supreme Decree 180 of Aug. 7, 1970, ILO., Aug. 7, 1970.

Decree 1 of Feb. 15, 1972, R.O., Feb. 16, 1972.

Supreme Decree 01 of Jan. 11, 1976, R.O. Jan. 12, 1976.
Decree 2400 of Mar. 31, 1978 (R.O., Apr. 12, 1978), art. 1.
Constitucion Politics de la Republica de Ecuador, art. 22, R.O., Mar. 27, 1979.
31 Decree 278 of Apr. 2, 1976, R.O., Apr. 21, 1976.
R.O., June 14, 1976.
22

29

397

Interim Decision #2940
between legitimate and illegitimate children; therefore only the aclmowledgment by either or both parents is required for establishing filiation.
Prepared by Eduardo Abbott
Legal Specialist
Hispanic Law Division
Law Library, Library of Congress
April 1978
Updated February 1980

398


Interim Decision #2376

MATTER OF BRONSZTEJN
`1 ,

•

In Deportation Proceedings
A-13880397
Decided by Board November 26, 1974
Section 241(a)(11) of the Immigration and Nationality Act directs the deportation of an
alien who has been convicted of a violation of, or conspiracy to violate, any law or
regulation relating to the illicit possession of narcotic drugs or 'marijuana. The
respondent was convicted upon a plea of guilty for attempted possession of marijuana.
The Act makes no distinction between felonies and misdemeanors in narcotics offenses. Conviction for the offense of attempted possession of marijuana is an offense
relating to the illicit possession of narcotic drugs or marijuana. Where a person would
be found deportable if convicted of a substantive offense, he would also be deportable
if convicted of an attempt to commit that offense. Therefore, reapondent's conviction
for attempted pcissession of marijuana renders him deportable -under section 241(a)(11) of the Act, and also ineligible for voluntary departure.
CHARGES:
Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Illicit possession of
marijuana (Sections 220.05 and lib, New York Penal Law).
Lodged: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11))—Attempted criminal
possession of marijuana (Sections 110 and 220.05, New York
Penal Law).
ON BEHALF OF RESPONDENT:

ON BEHALF OF SERVICE:

Edith Lowenstein, Esquire
36 West 44th Street

Paul C. Vincent
... Appellate Trial Attorney

New York, New York 10026

.

This is an appeal from an order of an immigration judge finding the
respondent deportable on the lodged charge, and directing his deportation to Israel. The, appeal will laq-, dismissed,
The respondent is a 23-year-old male alien, a native of the Union of
Soviet Socialist Republics, last a citizen of Poland, who was admitted to
the United States for permanent residence in 1964. The respondent was
arraigned on August 5, 1971 and charged with violating sections 220.20
and 220.10 of the New York Penal Law. On December 13, 1971, in the
nriminal Court, City, County and State of New York, the respondent
was convicted upon a plea of guilty for attempted possession of
marijuana pursuant to sections 110 and 220.05 of the New York' Penal
281

Interim Decision #2376
Law. It was on the basis of this conviction that he was found deportable
under the provisions of section 241(a)(11) of the Immigration and Na' lity Act. He designated Israel as the country of deportation.
done.
On appeal counsel argues (1) that there was insufficient evidence to
support the charge on which the respondent was convicted, and that the
conviction was the result of plea bargaining; (2) that conviction under
section 110 of the New York Penal Law, attempted criminal possession
of marijuana in the sixth, degree, is not within the ambit of section
241(a)(11) of the Act. Counsel requests that if the Board finds the

respondent deportable, it remand the case for consideration of the
respondent's eligibity for the privilege of voluntary departure.
Insofar as the question whether there was sufficient evidence to
support the charge under section 110 of the New York Penal Law is
concerned, t:ae short answer is that we are bound by the criminal
record, and that we may not go behind it and review the evidence and
render an independent judgment on the guilt or innocence of the alien
involved, U.S. ex rel. Zaffarano v. Corsi, 63 F.2d 757 (C.A. 2, 1933);
Rassano v. INS, 377 F.2d 971, 974 (C.A. 7, 1966) 1; Cruz—Sanchez v.
INS, 438 1"..2c1 1087 (aA_ '7, 1971). If the respondent wishes to Ram*
the validity of his conviction, he must do so in the criminal courts.
Moreover, under the very terms of section 241(a)(11) of the Act, no
distinction is made between a misdemeanor and a felony.
Section 110 of the New York Penal Law defines attempt as follows:
"... A person is guilty of an attempt to commit a crime when, with intent to commit a
crime, he engages in conduct which tends to effect the commission of such crime."

An attempt to commit a crime has been judicially defined as an act done
with intent to commit and tending but failing to effect its commission. It
does not reac:a the stage of attempt, unless it carries the project forward
within dangerous proximity to the criminal end sought, People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903); People v. Sobieshoda, 235 N.Y.

411, 139 N.E 558 (1923); People v. Werblow, 241 N.Y. 55, 148 N.E. 786
(1926); People v. Ditehik, 288 N.Y. 95, 41 N.B. 2d 905 (1942). The

attempt mus; have gone so far that the crime would have been completed but for an extraneous intervention, People v. Rizzo, 246 U.S.

334, 158 N.E. 888 (1927). It takes its character and its quality from the
nature of the law toward whose violation it is or -was directed and in this
particular instance it was the intended crime of possession of narcotics.
Under New York Penal Law an attempt to possess marijuana is a lesser
degree of the crime of possession of narcotics. The Immigration and
Nationality Act makes no distinction whatever between a conviction for
a felony or a conviction for a misdemeanor.
We have held repeatedly that a person who is found deportable if
I Remanded on other grounds.
282

Interim Decision #2376
convicted of a substantive offense would be deportable if convicted of an
attempt to commit that offense, U.S. ex rel. Meyer v. Day, 54 F.2d 336
(C.A. 2, 1931). See also: Matter of De S—, 1 I. & N. Dec. 553 (BIA
1943), involving an attempt to smuggle; Matter of .5—, 1 L & N. Dec.
505 (BIA 1943), involving attempted compulsory prostitution of women;
Matter of B-, 1 I. & N. Dec. 47 (BIA 1941), involving attempt fraud;
Matter of S—, 3 I. & N. Dec. 617 (BIA 1949), involving attempted
arson; Matter of V—, 4 I. & N. Dec. 100 (BIA 1950), involving attempted bribery.
In enacting the Narcotic Control Act of 1956 (Aet of July 18, 1956, 70
Stat. 567, 575), Congress added language to section 241(a)(11) of the Act
for the purpose of making a conviction relating to illicit possession of
narcotics a ground of deportation. As amended, the provisions of section
241(a)(11) of the Act direct the deportation of an alien "who has been
convicted of, or conspiracy to violate any law or regulation relating to
the illicit possession of narcotic drugs or marijuana."
The words "relating to" have been construed to be the controlling
phrase in section 241(a)(11) of the Act, Matter of M—, 6 I. & N. Dec. 560
(A.G. 1955). The courts have construed the phrase to have broad coverage, Bowles v. Ohio Fuel Gas CO., 65 P. Supp. 426 (N.D. Ohio, 1946),
afrd 158 F.2d 814 (C.A. 6, 1947); Commonwealth v. Mathues, 210 Pa.
372, 407, 59 A. 961, 975 (1904). Deportability based on a conviction for
attempted possession of marijuana in violation of Louisiana Revised
Statutes 14:27-40:962 was upheld in United States v. Rosenson, 291 F.
Supp. 874 (E.D. La. 1968), aff'd United States v. Rosenson, 417 F. 2d
629 (C.A. 5, 1969), cert. denied 397 U.S. 962. See also: Simpson v.
United States, 195 F.2d 721 (C.A. 9, 1952); People v. Siu, 126 Cal.
App.2d 41, 271 P.2d 575 (1954); State v. Broadnax, 216 La. 1003, 45
So.2d 604 (1950); Cruzado-Gomez, 14 L & N. Dec. 513, (BIA December
18, 1973).

For the foregoing reasons, we conclude (1) that the respondent has
been convicted of a narcotic violation within the meaning of the immigration laws and is deportable pursuant to section 244(a)(11) of the Act;
and (2) that deportability has been established by evidence that is clear,
convincing and unequivocal.
Counsel's request that we remand the case for consideration of the
respondent's eligibility for the privilege of voluntary departure is denied. There is no provision in the immigration laws that would permit
the respondent any form of discretionary relief from deportation. Accordingly, and in view of the foregoing, we will affirm the immigration
judge's order and dismiss the appeal.
ORDER: The appeal is dismissed.

283


Interim Decision #2189

MATTER OF KUBICKA

In Visa Petition Proceedings
A-20865987

Decided by Board October 20, 1972
Under the law of Poland, a child born in that country of a bigamous marriage
was legitimated by the act of recognition of the child by the father in a report
of the child's birth to the Civil Registry Office.

This is an appeal from a decision of a district director which
denies a visa petition filed on behalf of the petitioner's 22-year-old
married daughter. The district director based his denial of the
petition on the following grounds: "The facts presented disclose
you were never married to the beneficiary's mother in that you did
not terminate your first marriage until January 27, 1963, seventeen years after the birth of the beneficiary to your second wife
and you have not thereafter entered into a legal marriage with
the mother of the beneficiary."
The documents submitted in support of the petition reveal the
following facts: The petitioner and the beneficiary's mother were
married on June 16, 1945. At that time, a prior marriage entered
into by the petitioner was still in existence. The beneficiary's
mother was not aware of the fact that the petitioner was already
validly married. The beneficiary was born as issue of that bigamous marriage on June 17, 1950. The marriage was annulled on
July 5,1902. The prior marriage of the petitioner was terminated

by a divorce decree, on January 4, 1963. All those events took place
in Poland where the petitioner, the beneficiary's mother, and the
beneficiary resided.
The law of Poland has enlarged the rights of children born out of
wedlock. The constitution of the Polish People's Republic provides
in Article 67 that, "The birth of a child out of wedlock does not
reduce its public rights." Like previous enactments, the latest
Polish Family Code ("Kodeks Rodzinny") which became effective
on January 1, 1965, contains detailed provisions for the acknowledgment or repudiation of paternity, in Articles 62 through 86.
Recognition, whether voluntary or enforced, of a child born out of
303

Interim Decision #2189
wedlock, in conformity with the provisions of the Polish Family
Code, results in the child's legitimation. We recognized the effect of
a natural father's acknowledgment of a child as his own, under
Polish law, in Matter of K—, 8 I. & N. Dec. 73 (BIA, 1958).
The matter before us does not involve the ordinary situation in
which a man. has recognized paternity. Here the beneficiary's
mother and the petitioner had entered into a ceremonial marriage
which, on its face, appeared to be valid. As the Polish District
Court which annulled that marriage on July 5, 1962, pointed out,
only the petitioner knew that the marriage was bigamous. On

June 27, 1950, he reported the beneficiary's birth to the Civil
Registry Office in Lodz, Poland, under No. 4681/50, as the birth of
a child born as issue of his marriage to the beneficiary's mother.
We are satisifed that his act, never repudiated, resulted in the
beneficiary's legitimation, in conformity with the applicable Polish
law.
In Matter of K—, supra, we concluded "that the beneficiary in
the instant case should be regarded as a legitimate or legitimated
child of the petitioner." A "legitimate" child is, of course, a child
"born in wedlock" (Webster's New International Dictionary, 1971).
The distinction between the birth of a child in wedlock and the
birth of a child out of wedlock is recognized in the provisions of
Article 67 of the constitution of the Polish People's Republic which
was quoted above. We, therefore, state, and should more correctly
have stated in Matter of K—, above, that a child born out of
wedlock recognized by the father as his own, in accordance with
the law of Poland, becomes the father's "legitimated" child, rather
than his "legitimate" child.
The petitioner has submitted a marriage certificate which shows
that the beneficiary entered into a marriage with Jan Kubicka on
February 6, 1971. Thus we shall approve the petition for status of
the beneficiary as the married daughter of a citizen of the United
States under section 203(aX4) of the Immigration and Nationality
Act.
ORDER: The petition is approved for status under section
203(aX4) of the Immigration and Nationality Act.

304