MA lilt OF S—

In EXCLUSION Proceedings
A-10494958
Decided by Board May 15.1962
Inadmissibility—Crime prior to entry—Conspiracy.
(1) Conviction on a plea of guilty to a general conspiracy stated in one count

to commit, among other offenses, the crimes of forgery in the third degree
and uttering a forged instrument, which are crimes involving moral turpitude, is conviction of
crime involving moral turpitude and appellant is
excludable under section 212(a) (9) of the 1952 Act
(2) A plea of guilty to a conspiracy count is a plea to the entire count In
the absence of a showing to the contrary.
.

EXCLUDABLE:

Act of 1952—Section 212 ( a ) (9 ) [8 U.S.C. 1182 (a ) (9) ] —Convicted of crimes involving moral turpitude, to wit: Assault and
babtery (N.J., 102:7) ; failure to file State ineo_ne tax return
(Calif., 1926); conspiracy, gambling and owning and operating
a gambling establishment (N.Y., 1956).
Act of 1952—Section 212(a) (20) [8 U.S.C. 1182(a) (20)1—No
immigrant visa.
Act of 1952—Section 212(a) (27) [8 U.S.C. 1182(a) (27)1—Entry
prejudicial to the public interest.
BEFORE THE BOARD

DISCUSSION: Appellant is 61 years old, a native of Russia, who
was first admitted to the United States for permanent residence in
July 1912, accompanied by other members of his family. He was
naturalized in 1930, but his citizenship was revoked in July 1958.
See Stacker v. United. States, 258 F.2d 112 (C.A. 9, 1958), cert. den.
3M U.S. 90T. The Court of Appeals sustained the finding of the

District Court that despite the passage of 28 years, the Government
had established "by clear, unequivocal and convincing evidence that
the defendant under oath had stated ho had no previous arrests,"

while in fact appellant had "a prior criminal record." The court
had before it other matters of proof and jurisdiction not pertinent
here. The court recited appellant's nine arrests between 1924 and
1928, prior to his naturalization; most of them for "assault and battery" or for "atrocious assault and battery." He was convicted on
688

only one of these charges; his arrest for "atrocious assault and battery" was reduced to assault and battery, for which he paid a fine
of $50 at Newark, New Jersey, on December 14, 1927.
Appellant departed from the United States on or about April 10,
1960, and returned on July 19, 1960. He departed again on January 20, 1961, and applied for readmission on March 20, 1961. In
connection with his last entry the present exclusion proceeding was
instituted. At the time of his return in March 1961 he preSented
an affidavit in lieu of passport (Exh. 4) and an alien registration
receipt card (Form 1-151). The special inquiry- officer found appellant inadmissible on the first two charges set forth above, under
section 212(a) (9) and section 212(a) (20) of the Immigration and
Nationality Act. Appellant appeals from the order of exclusion.
The special inquiry officer found that atrocious assault and battery is a crime involving moral turpitude, but conviction for assault
and battery is not conviction of a crime involving moral turpitude.
The special inquiry officer concluded that appellant did not abandon
his residence in the United States by making two trips to Italy, one
of 3 months' duration and one of 2 months, to see his estranged wife
and their 2 children. The special inquiry officer further concluded
that the Immigration and Naturalization Service has not established
that appellant is inadmissible as a person whose entry is prejudicial
to the public interest. The special inquiry officer found that appellant's conviction for failure to timely file State income tax returns in California in 1955 is not a crime involving moral turpitudo.I
It is not necessary, therefore, for us to consider further the charge
laid under section 212(a) (27).
The special inquiry officer stated that "no probative value" was
being given to the testimony of appellant before Congressional committees investigating organized crime in interstate commerce in New
York and New Jersey. This testimony and the magazine articles and
newspaper clippings referring to appellant's business associates and
gambling activities were introduced in support of the "entry prejudicial to the public interest" charge. These exhibits, 11, 12, 13, 18,
19, and 21, are not now admissible for any purpose, except to establish reputation, and have not been given any consideration by us.
Counsel has alleged in briefs and in oral argument that there was
a "sly scheme" to entrap the alien. A watch notice was pastel for
him before he returned from his first trip to Italy, but he returned
without being apprehended. He was interviewed by the Immigration
Service unce between his first and second . trips. Following his see1 The special inquiry officer has included in an Appendix to his decision the
pertinent section of the various statutes under which appellant has been
convicted.

654377-68---45

689

and trip to Italy a year later, he was apprehended by an inspector
who found his name in a "Lookout Book" when he entered via plane
at California. Counsel contends that appellant should have been
warned by the Immigration Service following his denaturalization
that if he went abroad he might not be readmitted, that the Immigration Service has pursued a policy of warning aliens but deliberately refrained from warning appellant. Entrapment is a criminal
law concept,2 and has no appropriate place in this case. Counsel
claims that the Immigration Service failure to apprehend him at
New York on his first return was "lulling" him into a sense of
security (counsel's pre-decision memo, p. 3), and refers to appellant
as an "unwary victim." Appellant has had continuous competent
legal assistance for years, defending him in criminal prosecutions,

representing him when he' has testified before various investigatory
bodies, and in immigration matters. Counsel declares that, while the
usual practice of the Immigration Service is to notify an alien that

he might be excludabh or could be excluded upon reentry, in this
case the Service delivered to appellant his alien registration card in
1959 without any such warning. The examining officer has stated
that at the time the "watch notice" was posted the Service was not
aware of appellant's conviction at Saratoga, New York in 1952. AR
investigator for the Immigration and Naturalization Service at
Los Angeles testified that appellant's record was given iim in Janu
ary 1959 for the purpose of registering appellant under the Alien
Registration Act. The witness testified that he concluded on the
basis of the record then before him that Mr. S did not fall within
the excludable classes. The fact that the Government posted a
lookout notice for Mr. 5-- before his first return from Italy in June
1960 (p. 8, oral argument) at various ports, including the Northeast

Region, but failed to apprehend him until the occasion of his second
return, does not constitute "entrapment" by the Immigration Service,
either on the law or the facts.
Concerning counsel's contention that the Service conduct was improper with regard to appellant's departures and reentries, see
Klapholz v. Esperdy, 201 F. Supp. 294 (S.D., N.Y., 1961), referring
to the standard procedure of "Lookout Book," detention by an
2 Entrapment. The act of officers or agents of the Government in inducing& person to commit a crime not contemplated by him for the purpose of instituting a criminal prosecution against him. Faiden v. Commonwealth, 167
Va. 549, 189 S.E. 329, 332. Lee v. State, 66 OkL Cr. 399, 92 P.2d 621, 623.
But the mere act of an officer in furnishing the accused an opportunity to

commit the Crime, where the criminal Intent was already present In the ac-

case '4 mind, is not ordinarily entrapment. State v, Cowling, 1.61 Wash. 519,
297 P. 172, 174. Black's Law Dictionary (Fourth Edition),

690

immigrant inspector, and parole into the United States pending
determination of admissibtlity. 4
Counsel states that appellant lives from the proceeds of a $1,000,000
note resulting from the sale of some of his properties in Nevada and
that he has not been engaged in gambling activities in the past ten
years. Stadler v. United States, 258 F.2d 112, 116, fn. 11, states
that in July 1950 defendant purchased "an interest" costing roughly
$91,000 in two corporations, the Bank Club of Nevada, Inc., and the
Golden Security Company. According to his tax attorney he sold his
interest in the Golden Hotel and the Bank Club of Reno in May 1952
and received $86,000 cash, a one-third interest in the Earl Carroll
Theater Building in Hollywood, valued at $97,000, and "Installment
Notes" of $1,166,000.
Following his indictment by the Extraordinary Grand Jury on
September 8, 1052, sitting in Saratoga County, New York, for the
crimes of conspiracy, gambling, owning and operating a gambling
establishment, and forgery in the third degree, appellant went to
Nevada. A State court in Nevada refused to extradite appellant to
New York. The extradition proceedings went to the Supreme Court
as State of Nevada v. Stacher, 346 U.S. 906 (1953), and in a per
curiam memorandum decision the Supreme Court reversed the Court
for the 7th Judicial District of Nevada, citing Biddinger v. Commissioner of Police, 245 U.S. 128 (1917), and Pierce v. Creecy, 210
U.S. 387 (1908). Biddinger states the rule (p. 134) that a fugitive
from justice:
• . . If found in another State must be delivered up by the Governor of
such State to the State whose laws are alleged to have been violated, on the
production of such indictment or affidavit, certified as authentic by the Governor of the State from which the accused departed. Such is the command
of the Supreme law of the land, which may not be disregarded by any State.
. . . that when the extradition papers required by the statute are in the
proper form the only evidence sanctioned by this court as admissible on such
a Learlug is such as teals to prove that the accused was not in the demanding State at the time the crime is alleged to have been committed.

Pierce v. Creecy, supra, is to the same effect saying:

• ..

This indictment meets and surpasses that standard, and is enough. If
more were required it would impose upon courts, in the trial of writs of
habeas corpus, the duty of a critical examination of the laws of States with
whose jurisprudence and criminal procedure they can have only a general
acquaintance. Such a duty would he an intolerable burden, certain to lead to
errors in decision, irritable to the just pride of the States, and fruitful of
miscarriages of justice. (p. 405)
The court in Kiaphola had no criticism of thic standard procedure and
found that a conviction following parole into the United States rendered the
alien excludable as a person convicted prior to admission of a crime involving moral turpitude, sustaining the finding of the special Inquiry officer and
the Attorney General, and overruling the Board on this point.

691

The Supreme Court decided that the indictment was in the form
and certified as required by the law, and that the appellant did not
deny that he was in the State of New York at the time the crime
was committed. Counsel contends that the indictment is ambiguous
and uncertain. The Supreme Court implicitly found to the contrary.
Following the Supreme Court decision appellant returned to Saratoga, New York, and on December 29, 1953, entered a plea of guilty
to twenty counts of the indictment pending against him.
Appellant pleaded guilty to the crime of conspiracy as set forth
in the first count, and the crimes of gambling and owning and operating a gambling establishment, counts 14 through 32. Appellant
pleaded guilty to 20 counts, including the.first count, paid a fine
of $600 on each count, the total fine amounting to $10,000. In ad. it:tion, upon motion of the Special Assistant Attorney General, the
court sentenced appellant to serve one year in the Saratoga County
Jail on his plea of guilty to the crime of conspiracy, and execution
of the jail sentence was suspended. The principal question before
this Board is the scone of appellant's plea of guilty to the first
count. Only if appellant has been convicted of the commission of a
crime involving moral turpitude is he excludable from the United
States in this proceeding The only crime found by the special inquiry officer to involve moral turpitude is the 'crime of conspiracy
to commit "forgery in the third degree" and "uttering a forged instrument." It is our conclusion that the appellant's plea of guilty
included an admission of guilt of all the offenses set forth under
count one.
Counsel has discussed at length, both in briefs and in oral argument, the fact that the indictment and certificate of conviction
(Exh. 6) came to us from the Office of the Attorney General of the
State of New York, rather than from the Office of the County Clerk
of Saratoga County. The certification, part of Exhibit 6, carrying
the seal of the Attorney General of New York states: "This is to
certify that the attached is an exact copy of an indictment of the
Extraordinary Grand Jury of the County of Saratoga, State of New
York v. M—L—, J—S—, et al., filed September 8, 1952, on file in
this office. This office is the official custodian of the aforesaid records." The certification is signed for Louis Lefkowitz, Attorney
General of the State of New York, by Paxton Blair, Solicitor General of the State of New York. A considerable portion of counsel's
argument and memoranda have boon devoted to the authenticity and
.source of the copies of the indictment and certificate of conviction.
It is his contention that they are not certified under the hand and
seal of the Clerk of the Supreme Court of the State of New York
for the County of Saratoga, the proper forum, but instead by the
Attorney General who declares himself to be the official custodian of
692

compares this with the prosecuting attorney
sitting in judgment on the merits of the case. This is not a legitimate analogy, because the adjudication was, of course, made by the
court.
The record contains (also part of Exh. 6) a letter from the present Saratoga County Clerk stating that he made a search of the
records in the County Clerk's office and was able to find no indictment again s t J S on file in that office. He refers the, officer of the
United States Immigration Service to the Attorney General's office
at Albany for papers pertaining to the investigation that have not
been filed with the County Clerk. This alien has been engaged in
constant litigation, at least since 1952, with denaturalization and
extradition proceedings, and income tax, conspiracy and gambling
prosecutions. All the papers may have been removed from the office
of the County Clerk in connection with any une of these proceedings
or other investigations.
We have no doubt as to the authenticity of these documents, even
though they came from the Attorney General of the State of New
York rather than from the Circuit Court, or the office of the County
Clerk. The Certification of the Librarian, State of New York Department of Law (April 25, 1961), covering the order of the Governor of New York of April 2, 1951, and other communications
comprising Exhibit 6 indicate that the Office of the Attorney General was a proper custodian and source of these documents,
the records Connse,1

—

—

The "certificate of conviction" recites that the appellant was

indicted "for the crimes of conspiracy, forgery in the third degree,
gambling and owning and operating a gambling establishment, PL
§ 580, § 932, § 889, § 970 and § 973, committed in the County of
Saratoga, State of New York." The certificate continues by stating
that at the arraignment and with the consent of the defendant,
J—S—, "the said indictment was amended to charge the defendant
with the crimes set forth in counts fourteen through_twenty one, inclusive . . . and the indictment was further amended to add counts
twenty-two through thirty-two, inclusive, charging violations of
section 970 of the Penal Law on the dates of August 3, 1947 to
August 15, 1947." The certificate does not state that count one was
amended. The certificate of conviction then continues:
-

indictment as above set forth,
the said J—S- , the above-named defendant, pleaded guilty to the crimes of
conspiracy, gambling and owning and operating a gambling establishment in
violation of section 970 of the Penal Law, constituting the first count, the
fourteenth to the twenty - first counts, inclusive. and the twenty-second through
the thirty-second counts, inclusive, of said indictment, as amended, to cover
the said amended indictment.
Thereupon, following the amendment of the said

The certificate of conviction then recites that the defendant was
thereupon sentenced to the fine and penalties as set forth above.
693

Counsel attempted to introduce into the record testimony of appellant as to which portions of the indictment he intended to plead
guilty to, on the ground that the certificate is ambiguous. The special inquiry officer refused to permit the testimony. In argument
before the Board, counsel stated that appellant pleaded guilty to
nineteen substantive counts of gambling or operating a gambling
establishment and that he also pleaded guilty to the first count, the
conspiracy count, only as to that portion that dealt with gambling,
because he was not denying an interest in, or that he did, for a time,
operate this gambling casino. Counsel argued further that there
were 12 nongambling counts in the indictment, dealing with third
degree forgery under the New York Code, or obtaining the signature
of a person to a written instrument, like a liquor license, with intent to defraud or cheat, but that appellant did not plead guilty to
any of the nongambling substantive counts. As to appellant, those
counts were dismissed. Counsel states that in the amended indictment "the court added" additional gambling counts (twenty-two
through thirty-two), covering different dates, and operating a gambling casino, covering additional dates, and the common gambler
count, but that none of the substantive counts to which appellant
pleaded guilty covered the forgery charge.
Appellant did not plead guilty to counts two through thirteen.
However, the same plan, scheme and organization is described in
these counts as that described in the conspiracy count, except that it
is described in greater detail. By his pleas of guilty to the other

counts he admitted his participation in the plan or "conspiracy."
Counts two and three charge appellant and others with unlawfully
and feloniously obtaining the signature of certain persons to a summer liquor license in the name of a person who was not actually the
sole proprietor and partner in the restaurant, in violation of section
932 of the Penal Law, of "obtaining the signature of a person to a
written instrument with intent to cheat and defraud, designedly, by
aid of false pretense in violation of section 932 of the Penal Law,"
the written instrument involved being a lease, and that the coconspirators (five in number), including S—, obtained the signatures
of two other persons to an application for a summer liquor license,
which application alleged U— to be the bona fide proprietor of the
premises, that none of the partners had ever been arrested or indicted for any crime, that no person other than U— was interested
in the business, or had a lien or mortgage thereon, or had been known
by any other name, etc., all of which allegations the defendants
knew to be untrue, and all of which statements were made to defraud the New York State Liquor Authority.
The fourth and fifth counts allege the crime of forgery in the
—

third degree in violation of section 889 of the Penal Law by falsi694

lying leases and making a false statement of the financial condition

of the Arrowhead Inn through the period August 1, 1946, to August
31, 1946, for the purpose of creating the illusion that the restaurant \
enterprise was owned and operated independently, that money for

-

rent had been paid out in good faith, and that M—F— had sustained
loss of $31,782 during this period. This count alleges that the

statement of financial condition was compiled by defendants in order to conceal from the New York State Liquor Authority the truth
toncerning the particulars alleged.
Counts 6, 7, 8, 9, 10, 11, 12 and 13 all include S— as one of the
codefendants and all allege the crime of forgery in the third degree in violation of paragraph 1 of the first subdivision of section
889 of the Penal Law. These counts include allegations set forth
above in other counts and all relate to unlawfully, knowingly and
corruptly falsifying writings or financial summaries relating to the
operation of the restaurant, alleging sums paid out as rent that had
not been paid in good faith; that no actual audit of the books was
made as had been alleged; that the statements of financial condition
were compiled, prepared, and issued with the intent to defraud the
New York State Tax Commission and the Collector of Internal
Revenue of the United States who were creditors for income tax
purposes of the defendants and M—U—; and that these false statements of financial condition were compiled, prepared, and issued for
the purposes, not only of concealing the interests and financial condition of the defendants from the New York State Tax Commission
and the Collector of Internal Revenue, but also of deceiving the
New York State Liquor Authority. It is alleged that statements
relating to the financial condition of Arrowhead Inn omitted material entries with the intent of concealing the fact that the restaurant
operated at a substantial loss, that the false entries in financial statements wore made with intent also to defraud creditors. Counts

twelve and thirteen describe a checking account in a fictiticus name
in which money (checks) was deposited and withdrawn, this money
being the proceeds of gambling conducted at the Arrowhead Inn,
and allege that this activity was for the purpose of misleading state
and federal tax agents, and that these acts constituted violations
not only of section 889 of the Penal Law but also of sections 970
and 973. Mr. S-- did not plead guilty to counts two through thirteen described above, but they describe the same scheme as that set

forth in count one, and the other substantive counts to which he
did plead guilty.

In the indictment (unamended) in our record Mr. 5— is not
named in counts fourteen through seventeen, but he did plead guilty
to there etnintR, which allege the crimes of gambling in violation of
section 970 of the Penal Law, and of owning and operating a gam695

Ming establishment in violation of section 973 of the Penal Law,
specifically, of operating and conducting for their personal gain
games of chance including roulette, chemin de fer, birdcage and
craps, and keeping a building and casino adjacent to the Arrowhead Inn for these purposes.
In counts eighteen through twenty-one appellant is named as a
co-defendant (aider and abbettor), and these counts charge conunis&ion of the crime of gambling and owning and operating a gambling
establishment in violation of sections 970 and 973 of the Penal Law,
and that the defendants were not inhabitants of or usually or publicly resident within the State of New York.
The special inquiry officer found that gambling and owning and
operating a gambling establishment and being a common gambler
under sections 970 and 973 of the New York Penal Code are not
crimes involving moral turpitude. We agree that the offenses set
forth in counts fourteen through twenty-one, and, so far as we can
tell from the certificate of conviction, those offenses described in
counts twenty-two through thirty-two, are not crimes involving
moral turpitude. If appellant is excludable for the commission of
a crime involving moral turpitude prior to entry, it is on his plea
of guilty to count one. We agree that Mr. S—, in pleading guilty
to count one, pleaded guilty to the entire count.
Count one indicts the defendants in broad terms of violating six
sections of the Penal Code, and the indictment then states, not as
overt acts or as substantive counts, but as "parts of the conspiracy,"
the following agreements: Parts (1) to (5) relate to the setting up
and operating of the restaurant and casino. Parts (6) and (7) relate to the obtaining of a. local figure to sign leases as tenant of the
property, the leases to be "conditioned upon the granting of a slimmer liquor lieenae," to procure in successive years the necessary liquor and other licenses, to conceal from federal and New York State

liquor and tax authorities the identity of the true principals. Parts
(8) to (10) relate to obtaining a local figure to act as a respectable
"front" for the organization, and set forth the aim of the restaurant to serve excellent food and offer superior entertainers to attract as guests a moneyed clientele. Part (11) alleges establishment
of checking accounts in false names in which to deposit the checks
taken in the casino. Part (12) alleges the establishment of a dummy
corporation to pay the expenses of the operation. Part (13) allogos the stock was to be held in the dummy corporation and officers and directors thereof were to be selected so as not to disturb
the true owners
- in their beneficial enjoyment. Part (14) alleges
that distorted financial statements were to be prepared and issued
by accountants "to heighten the illusion" that the restaurant was a
bona fide enterprise and to mislead the New York and federal liquor
696

the defendants should
raid income tax authorities. Part (15) nil
share in fixed proportions the net profits of the gambling operations.
Part (16) alleges the defendants should utilize the capital of the
corporate defendant for their personal use without regard for and
in violation of statutory injunctions regarding the use and transfer
of corporate capital, property and stock. Part (17) alleges the
defendants should withhold and divert from the person in whose
name the restaurant operation was conducted, the true records and
should conceal and destroy these records.
Of the 42 overt acts which then follow, two overt acts, (15) and
(24), refer to the "defendants" without naming specific names.
Overt acts (13), (23) and (27) state that S— was a copartner in
operating the casino and the gambling at Arrowhead Inn, and that
he was in daily attendance at the casino and conferred with and
issued instructions to employees.
Section 881 defining "uttering forged instruments" has three sections. Section 889, defining "forgery in the third degree" (pp. 4
and 5, Appendix, Special inquiry officer's decision), has four subsections, each defining or describing many different kinds of acts.
It is counsel's contention that these sections are divisible and that
from the indictment you cannot tell what subsections of these statutes, particularly section 889, appellant is alleged to have conspired
to violate, or what sections or subsections he pleaded guilty to. The
rules of criminal pleading do not require the same degree of detail
and technical precision in an indictment for conspiracy in stating
the object of the conspiracy as is required when the indictment
charges the substantive offense. Thornton v. United States, 271 U.S.
412, 423 (1926), and Wong Tai v. United States, 273 U.S. 77 (1927),
and cases cited therein. The indictment was sufficient to advise the
defendant of what he had to meet, and sufficient to protect him
against subsequent prosecution for the same offenses. The indictment states clearly, particularly in count one, paragraphs 4 and 17
(pp. 3 and 5, indictment) that the acts- recited therein were done
"to conceal" the identity of the true principals from, and "to mislead," the New York State Liquor Authority and the state and
federal income tax authorities. It is our belief that the conspiracy
count includes crimes involving moral turpitude.
The certificate of elmvintinn sets forth clearly enough the fact
that appellant pleaded guilty to three crimes, (1) conspiracy, (2)
gambling, and (3) owning and operating a gambling establishment
in violation of section 970 of the Penal Law. The offenses to which
he pleaded guilty, as described in the certificate of conviction, are
set forth in "the first count, the 14th to the 21st counts, inclusive,
and the 22nd through the 32nd counts, inclusive." There is nothing in the certificate of conviction to indicate that appellant pleaded

697

guilty to only part of the conspiracy count. A defendant does not
plead guilty to part of a count' He must plead either "guilty"
or "not guilty" to the entire count. We have been unable to discover a case, statute, or precedent of any kind to support counsel's
contention that it is possible to "split a count," and to plead guilty
to part of a count only. Suppose a count charges a defendant with
conspiring to steal a watch and a ring. He cannot say, "I conspired to steal the watch but not the ring." He must plead "guilty"
or "not guilty" to the entire count, and if he denies having conspired to steal the ring, he would, of course, plead "not guilty" to
the entire count.
What is the effect of a guilty plea? The rule is stated in many
cases, and we will cite only a few. Rader v. United States, 288
F.2d 453 (C.A. 8, 1959), 185 F. Supp. 224, 230, declares, "This plea
of guilty has the same force and effect as a conviction by a jury."
Harris v. United States, 288 F.2d 790 (C.A. 8, 1961), holds, "Defendant's plea of guilty was an admission of his guilt and a 'waiver'
of all nonjurisdictional defects and defenses and an admission of
all the facts averred in the information," citing Lipscomb v. United
States, 273 F.2d 860, 865 (CA. 8, 1960).
Williams v. United States, 290 F.2d 217 (C.A. 5, 1961), also
states that a plea of guilty is a judicial admission of all of the
elements of the crime and no proof is needed. "Tt is as conclusive
as the verdict of a jury," says United States v. Swaggerty, 218
F.2d 875 (CA. 7, 1955). See also Novalie v. United States, 254
F.2d 869 (C.A. 5, 1958) ; Thomas v. United States, 290 F.2d 691
(C.A. 9, 1961), wherein the court held that by his plea of guilty
the appellant foreclosed his right to raise objections to the manner in which evidence upon which he was indicted was obtained.
See also //all v. United States, 259 F.2d 480 (C.A. 8, 1958); Edwards v. United States, 256 F.2d 707 (CA. D.C., 1958) ; Berg v.
United States, 176 F.2d 122 (CA. 9, 1949) ; Kercheval v. United
States, 274 U.S. 220 (1927) ; Friedman v. United States, 200 F.2d
690 (C.A. 8, 1953) ; and United States v. Parker, 292 F.2d 2 (C.A.
6, 1961). Maye v. Pescor, 162 F.2d 641 (C.A. 8, 1947), states that
the hearing on a petition for a writ of habeas corpus is not a substitute for the functions of the trial court and that, "The record
does not purport to set out all the facts presented to or known by
the United States Attorney, and we cannot go outside the record
for the facto" (Conte in v. Coaart, Warden, 158 F gcl 676 (CA. 5,

1946)). The plea of guilty admitted all the facts. charged in the
indictment. See also, Dalton v. Hunter, 174 F.2d 633, 635 (C.A.
10, 1949) ; Bugg v. Hudspeth, 113 F.2d 260 (C.A. 10, 1940) ; and
4 Rule 11, Federal Rules of Criminal Procedure, Title 18, also permits the
defendant, with the consent of the court, to plead nob contendere.

698

Norris v. Hudspeth, 114 F.2d 1007 (C.A. 10, 1940); Thornberg v.
United States, 164 F.2d 37 (C.A. 10, 1947); Lindsay v. United
States, 134 F.2d 960 (C.A. 10, 1943), cert. den. 319 U.S. 763;
Spencer v. Hunter, 139 F.2d 828 (C.A. 10, 1944) ; Hawley v. Hunter,

161 F. 2d 825 (C.A. 10, 1947). Therefore, the irregularities in procedure occurring before entry of the plea became harmless and do
not constitute any basis for the vacating of the judgment. United
States v Tiny1a7u1, 264 F. 2d 346 (C.A. 7, 1059), points out that to
hold otherwise would render every judgment based on a guilty plea
open to collateral attack, motion to vacate judgment, etc. (pp. 349,
352).
In United States v. Ben Grunstein and Sons Co., 127 F. Supp.
907 (D.C. N.J., 1955), the court said, "Surely, if, after a criminal
verdict against him, overruling his denial of guilt, one is not permitted to make further denial, he should not be permitted to do so,
when, instead of denying guilt, he has previously formally admitted it. Indeed at times a plea of guilty is given greater scope than
is a judgment of conviction after trial, as where the parties are
not the same in the two proceedings. 31 A.L.R. 261, 278 (1924);
18 A.L.R.2d 1287, 1290 (1951) ; 5 Wigmore, Evidence, secs. 1066,
1346, 1671a."
Many cases concerned with the effect of a plea of guilty arise
when the defendant concludes that the plea of guilty was a mistake, either after he has served a portion of his sentence and wishes
to be released from confinement, or when the sentence following
his plea is much more sex ere than he expected. In Friedman et al.
v. United States, 200 F.2d 690 (C.A. 8, 1952), the indictment consisted of four counts, the first two counts were conspiracy counts,
and the last two counts alleged substantive offenses. The defendant corporation pleaded guilty to one of the substantive counts and
not guilty as to others. The individual defendants pleaded guilty
only to one of the conspiracy counts, conspiring to defraud the

Government. The principal defendant, an officer of the corporation, expected a fine. In fact, he was the only defendant to be
given a prison sentence. The other defendants were given suspended sentences and placed on probation. The principal defendant sought to withdraw his guilty plea. The court discussed at
length the effect of pleas of guilty, the circumstances under which
pleas may be withdrawn, and stated that a guilty plea "is not a
mere admission or extrajudicial confession of guilt; it is as conclusive as the verdict of a jury," and the "defendant who enters
a plea of guilty has no legal right to withdraw the plea" (citing
cases).
The alien in the instant case is somewhat in the position of
Friedman, supra, in that the punishment for his offense is greater

699

than he expected, not in the matter of a prison sentence, but in that
it renders him excludable from the United States. See, particularly, discussion of "collateral consequences" of a guilty plea in
United States v. Parrino, 212 F.2d 919 (C.A. 2, 1954).
Counsel argues that there is no substantive count in the indictment charging a violation of section 881, uttering a fdrged instrument, and that respondent cannot be convicted upon a trial for
conspiracy unless one or more overt acts alleged in the indictment
be proved. The contention that appellant participated in the operation of the gambling establishment but did not participate in
the aspects of the conspiracy which related to forgery ignores the
basic nature of the crime of conspiracy. Even if it were possible
for him to plead guilty to only part of the conspiracy count, he
must still have been found guilty of participation in the entire
combination. The fact that a person is not found guilty of the
substantive offence does not prevent his conviction of the conspiracy
to commit it. The cases hold that if there is concert of design
there need not be participation in every detail of its execution, or
even knowledge of the scope of the conspiracy. It is not necessary
to detail the evidence of the conspiracy in the indictment. If there
is a "meeting of the minds," an understanding and an agreement
with all parties working together toward a single design or purpose, the existence of the conspiracy may be inferred Telm,an v.
United States, 67 F.2d 716 (C.A. 10, 1933), cert. den. 292 U.S. 650.
A plea of guilty to conspiracy admits the existence of the conspiracy as charged, as well as the defendant's participation therein.
United States v. American Packing Co., 113 F. Supp. 223 (D.C.
N.J., 1953).
Where the conspiracy has been conclusively established, slight
evidence connecting accused therewith will suffice, and it is not
necessary to connect him directly with the actual crime committed.
Luteran v. United States, 93 F.2d 395, affirming United States v.
Buck, 18 F. Supp. 213, cert. den. Luteran v. United States, 303
U.S. 644, reh. den. 303 U.S. 668.
The general rule is that a party coming into a conspiracy or
scheme to defraud at any stage of the proceeding, with knowledge
that an illegal scheme or conspiracy is in operation, becomes responsible for all acts done by any of the other parties in furtherance of the common design. We will refer only to a few of the
many cases. In Levy v. United States, (C.A. Wash.) 92 F.2d 688,
the court held that it was proper to instruct the jury that the accused, joining in a conspiracy to defraud by use of the mails, would
be guilty of overt acts by coconspirators, whether immediately participating therein or not. See also, Harris v. United States, 48
F.2d 771; Edwards v. Commonwealth, 74 S.W.2d 949, 254 Ky. 492;

700

Skelly v. United States and Berman v. United States, 76 F.2d 483
(C.A. 10, 1935), cert. den. 55 S.Ct. 914, 295 U.S. 757; People v.
Darr, 179 Ill. App. 130.

The New York courts follow what appears to be the universal
rule, that a prima facie case of conspiracy having been established,
evidence of every act of the individual conspirators done in furtherance of the common purpose was admissible. People v. Connolly, 253 N.Y. 330, 171 N.E. 393 (1930) ; People v. Van Tassel,

156 N.Y. 561, 51 N.E. 274 (1898) ; People v. Pecken8, 153 N.Y. 576,
47 N.E. 883 (1897) ; People v. Miles, 192 N.Y. 541, 84 N.E. 1117
(1908) ; and People v. Candib, 129 N.Y.S.2d 176 (1954).
Appellant having pleaded guilty to the conspiracy count, it is
unnecessary for us to go to the facts of the case or the "overt acts"
alleged. The plea of guilty relieves tic of that necessity. Actually,
there are many overt acts set forth which were done to effect the
object of the conspiracy after the conspiracy had been formulated
and agreed upon. The aims of the group associated with appellant at Saratoga Springs could not have been accomplished without the false front features of the scheme described in the indictment. The beverage license was essential to the operation of the
restaurant and gambling operation. The same may be said of the
portion of the scheme relating to depositing the checks received
by the gambling organization in checking accounts which operated
under false names. The fact that appellant does not admit that
all the overt acts set forth in the indictment were done by him, and
that he did not plead guilty to all the substantive counts, has no
effect whatever upon his plea of guilty to count one. We find that
appellant is inadmissible to the United States as a person who was
convicted prior to entry on a plea of guilty to a general conspiracy stated in one count to commit, among other offenses, the crimes
of forgery in the third degree and uttering a forged instrument,
which are crimes involving moral turpitude.
The special inquiry officer was correct in finding that as the conviction for the crime under consideration occurred in December
1953, prior to the respondent's first reentry on July 19, 1960, he
was then not admissible to the United States. Therefore, when he
last reentered the United States in March 1961 he was not returning
to a lawful residence in the United States, and he was not entitled
to admission as a returning resident without an immigration visa.
The Board adopts the findings of fact and affirms the conclusions of law of the special inquiry officer.
ORDER: It is ordered that the appeal be and is hereby dismiz.led.

'701


MATTER OF M/S "TENNA DAN"

In FINE Proceedings
PHI-10/99.213
Decided by Board February 16,19E2
Wine

Section 254(a)(2)—Absolgte duty to detain.

The temporary removal of a crewman from a vessel, by order of the Service,
for fingerprinting after he has been refused landing privileges does not relieve the responsible parties from the absolute duty to detain the crewman
on board after he has been returned to the vessel from fingerprinting. The
effect of the "Refused" landing permit was not terminated but merely suspended until the crewman's return aboard the ship.

Is

M/S Tenna Dan, which arrived at the port of Philadelphia, Pennsylvania, from foreign, via ano•lier United States port on September 12,
1961. Alien crewman involved:

BEFORE THE BOARD

DISCUSSION: This appeal is directed to an administrative penalty of $1,000 which the District Director at Philadelphia, finding
no justification for mitigation, has ordered imposed on the Stockard
Shipping and Terminal Corporation, as agents for the vessel. The
District Director charges that said agents failed to detain the abovenamed alien crewman aboard the vessel despite the fact that he had

not been granted a conditional landing permit.
This vessel made its first United States port call at New York
on September 9, 1961, where immigration inspection was accorded
its crew. The result of such inspection was that this crewman was
not granted shore leave privileges, as evidenced by a Form 1-95
"Refused" issued as to him and served on the Master. On September 11, 1961, pursuant to written notice from the Service to the
Master, the vessel's chief wireless operator escorted this crewman
to the Immigration office at 20 West Broadway, New York, so that
he might bo photographed and fingerprinted in connection with his
application for a permanent type conditional landing permit and
identification card, Form 1-184 (8 CFR 252.4). When this had
been accomplished, the chief wireless operator escorted the crewman
back to the vessel and informed the Master that the Service had
issued no further orders or instructions with respect to the crewman. Under these circumstances, the Master believed that it was
564

no longer necessary fur him to guard the crewman and he did not
do so. However, he did immediately notify the Service telephonically when it was reported to him on September 15, 1961, after the
vessel had proceeded coastwise to the port of Philadelphia, that the
crewman was missing from the ship. Five days after he had left
it, and specifically on September 19, 1961, the escapee was taken into
custody by a Marine guard when he returned to the pier where his
ship had been berthed. He was then turned over to the Immigration Service and later removed from the United States by the responsible parties without expense to the Government on another
vessel of the same line.
This statute places upon the parties named therein as being responsible for the operation of a vessel, agents included, the absolute
duty of detaining aboard the vessel at all times aliens serving
thereon as crewmen, unless and until that duty of detention is lifted
by an immigration officer granting the crewmen shore leave privileges. It is no defense to the imposition of a penalty thereunder
that the Service later ordered the detainee taken ashore so that his
further processing might be completed, because the crewman did
not escape until after he had been placed back aboard the vessel and
the "Refused" landing permit was then still outstanding. That is,
the effect of the "Refused" landing permit was not terminated but

merely suspended until the crewman's return aboard the ship.
Upon the basis of all the evidence presented, as hereinbefore
summarized, it is found—
(1) that the M/S Tenna Dan arrived at Philadelphia on September 12, 1961, having on board the alien crewman SAC C , who was not granted a conditional landing permit;
(2) that said crewman escaped from the vessel on or about
September 14, or 15, 1961, and was at large in the United
States for several days; and
(3) that the Stockard Shipping and Terminal Corporation
acted as agents for the vessel at Philadelphia.
Accordingly, it is concluded—
that under section 254(a) (2) of the Immigration and Nationality Act (8 U.S.C." 1284), liability to fine has been incurred by
the Stockard Shipping and Terminal Corporation.
The only issue remaining is whether mitigation of this fine is
merited and, if so, to what extent. On the basis of the factors hereinafter discussed, it is our opinion that some reduction in the
amount of the fine is warranted. However, we cannot agree with
the carrier that mitigation thereof to the minimum amount permissible under the statute, to wit, down to $200, is warranted.
It is established and uncontested that the vessel's Master telephonically informed the Service immediately upon learning of the
565

crewman's escape from the vessel. He also furnished such information with respect to the alien's possible movements in the United
States as was available to him. Such action obviously demonstrates
cooperation with the Service to an extent over and above that required by law under pain of penalty of $10 (section 251(b), (d),
Immigration and Nationality Act; 8 U.S.C. 1281). Accordingly,
we consider this as a factor calling for a reduction in the amount of
the penalty to some extent.
It is also established in the record and uncontested here that the
responsible parties had this escapee removed from the United States
aboard another vessel of the same line promptly and without expense to the government. We think that such prompt action in this
respect by the responsible parties was not only beneficial to them,
since they were required to remove him from the United States
under pain of penalty of $300 under another section of the law
(section 243(e) of the Immigration and Nationality Act; 8 U.S.C.
1253), but was also beneficial to the Service in that it relieved them

of the necessity of in3tituting deportation proceedings against the
crewman and additional fine proceedings against the responsible
parties. Accordingly, we believe that this factor must be considered in arriving at a just determination of the amount of mitigation warranted in the matter.
Furthermore, in our estimation, the record demonstrates that the
Master did not take the usual precautions to keep this crewman
aboard the ship because of the Service's order to have the crewman
brought ashore for further processing. This was a novel experience
for the Master and a deviation from the usual routine followed as
to crewmen aboard his vessel when previously in United States
ports. We feel that this explains why he did not take all the precautions normally required as to a detainee and reflects that the
violation was not an intentional disregard of the immigration laws
of the United States on his part. .We, therefore, are of the opinion
that this factor is also one properly to be considered in arriving at
a fair amount of mitigation in this matter.
Upon careful consideration of the foregoing, together with the
representations throughout, we feel that this penalty should be
reduced to the extent of $500; but we cannot agree with the carrier

that it should be reduced to $200. No claim has been advanced or
showing made that the responsible parties exerted any efforts of
their own to locate and/or apprehend the escapee, and his ultimate
apprehension is not traceable in any definite way to their efforts.
ORDER: It is ordered that the decision of the District Director be
modified to provide for mitigation of the penalty to the extent of
$500 and that as so modified the decision of said official be and the

same is hereby affirmed. The penalty permitted to stand is $500.
566


MAItt,a OF C

In DEPORTATION Proceedings
A-2471605
Decided by Board March 3, 1959
Deportation order—Collotcy.1 ottock nor permitted after alien has been deported—Deportation hearing—Lodged charges authorized in section 242(f)
proceedings.
(1) No collateral attack is permitted on an executed deportation order, notwithstanding later coram, nobis action that resulted in vacating of conviction record supporting respondent's expulsion under section 241(a) (4) of
the 1952 act.
(2) Respondent's succontitto.. coon.. to the United titan -en In 1956, a year
after his deportation, constitutes an "entry". Contention rejected that he
should be considered as having constructively remained in the United States
on the theory that he is no longer deportable on criminal grounds under
section 241(a) (41 of the act.
(3) Issuance of order to show cause under section 242(f) of the act does not
preclude lodging additional charges of deportability at the hearing.

CHARGES:
Order: Act of 1952—Section 242(5) [8 U.S.C. 1252(f)1—Unlawful reentry
after deportation under 8 II.S.C. 1251(a) (4).
Lodged: Act of 1952 —Section 241(e) (1) to 05.0.0. 1251(a) (11) Excludable
at entry under S U.S.C. 1182(a) (17)—Arrested and deported, no
permission to reapply.
Act of 1952—Section 241(a) {2) [8 C.S.C. 1251(a) (2)1—Entered
without inspection.
Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under 8 U.S.C. 1182(a) (20)—No immigrant visa or
other entry document.
Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under 8 U.S.C. 1182(a) (9)—Convicted of crime, unlawfully entering a building.

BEFuttri THE BOARD

Discussion: This case is before us pursuant to the special inquiry officer's order of October 8, 1958, directing the respondent's
deportation and certifying the case to this Board for final decision.
The respondent is a 60-year-old divorced male, a native and citizen
of Italy, who states that he was lawfully admitted to the United
276

States for permanent residence on August 18, 1905. He was deported from this country on February 8, 1955, and last entered the
United States about March 1956 without inspection. The sole issue
to he determined is whether the respondent is deportable.
In the first proceeding, which culminated in the respondent's expulsion on February 8, 1955, he was found deportable under 8
U.S.C. 1251(a) (4) because of a conviction in 1917 for unlawfully
entering a building and a conviction in 1919 for grand larceny,
second degree. After a hearing on counsel's motion coram nobis
in the criminal proceeding relating to the 1919 conviction, the court
entered an order on October 24, 1957, granting counsel's motion to
vacate the plea and sentence imposed. The respondent was thereupon arraigned on the indictment; he pleaded not guilty; and the
court reserved decision on comma's motion to dicmice the indict-

ment. During the oral argument, it was indicated that the indict
ment was still pending but counsel stated that he was preparing a
motion to have it dismissed for lack of prosecution.
The special inquiry officer concluded that the respondent was not
subject to deportation on the charge stated in the order to show
cause. This charge is not applicable to all aliens who have been
deported but only to those deported pursuant to certain specified
statutory provisions. Included is 8 U.S.C. 1251(a) (4) under which
the respondent was deported. The special inquiry officer reached
his conclusion on the theory that reinstatement of the previous
order of deportation would not be Proper in a case where, at this
time, the respondent would not be deportable on the original charge.
For the reasons hereinafter stated, we concur in the special inquiry
officer's conclusion that the respondent is deportable on the lodged
charges, and we find it unnecessary to consider the charge which
was nnt enctained by the special inquiry officer.
The first lodged charge is predicated on the respondent's inadmissibility in March 1956 under 8 U.S.C. 1182(a) (17) as an alien
who had previously been deported and who had not been granted
permission to reapply for admission to the United States. This
charge differs from that stated in the order to show cause in that
it does not seek to reinstate the prior order of deportation, and it
is the charge applicable to an alien previously deported on any
ground.
Counsel contends that the granting of his motion coram nobis
completely removed the conviction from the record and that this

differs from an absolute executive pardon. No judicial or other authority was cited. We regard this distinction, if any exists, as unimportant. The order of October 25, 1957, in the corarn nobis
proceeding, which set aside the conviction for grand larceny in 1919,
has been given retroactive effect in this deportation proceeding
277

because, even though the respondent was actually excludable m
March 1956 by reason of his conviction of two crimes prior thereto,
he is not charged in this proceeding with having been excludable on

account of the 1919 conviction. Pardons have been given a similar
retroactive effect in immigration cases. For example, in Matter of
H—, 6 I. & N. Dec. 90 (1954), an alien who last entered in 1943
was then excludable because of a conviction prior thereto but she
was held not to be deportable when she secured in 1953 a pardon
for the crime, following the institution of deportation proceedings.
Along the same line, counsel also argues that the effect of the
granting of the motion coram nobis was to wipe out ab initio the
1919 conviction for grand larceny. In other words, the contention
is that we must now consider that this conviction was nonexistent
on February 8, 1955, when the respondent was deported. We find
no merit in this contention and hold that, as of October 25, 1957,
this 1919 conviction ceased to exist but that, in truth and in fact,
it was in existence on February 8, 1955.
It has heretofore been held that after deportation has been accomplished the alien will not be permitted to attack the validity of
that deportation order in a subsequent expulsion or exclusion proceeding. United States ex rel. Steffner v. Carmichael, 183 F.2d
19 (C.A. 5, 1950), cert. den. 340 TT.S. 529; United States ex
Koehler v. Corsi, 60 F.2d 123 (C.C.A. 2, 1932); Matter of S—,
3 I. & N. Dec. 83 (1949); Matter of R
, 3 I. & N. Dec. 605
(1949) ; Matter of P—, 3 I. & N. Dec. 818 (1950) ; Matter of
C
, 4 I. & N. Dec. 126 (1950); Matter of R
, 4 I. & N.
Dec. 173 (1950).
Counsel asserts that the cases previously decided have involved a
change in the judicial or administrative interpretation of the law,
and we agree that this is true except as to United States ex rel.
Koehler v. Corsi, supra, and Matter of C R , supra. He
seeks to distinguish the respondent's case on the ground that it involved not a change of interpretation, but a change of facts. Hence,
his contention is that, for that reason, there should be a departure
from the established rule in the respondent's case. We doubt that
what was a fact on February 8, 1955, ceased to be a fact on or
prior to that date by reason of some subsequent occurrence.
Assuming that under some fictional theory there can be such a
thing as a retroactive change of facts, we do not find counsel's
argument persuasive. In most of the cases cited above, a change
in the interpretation of the law occurred after the alien's deportation. That means that those aliens had actually been deported erroneously. Nevertheless, when they were subsequently charged with
excludability or deportability as aliens previously deported and not
having permission to reapply, they were not permitted to say that
278

there was actually no deportation because the order had been
entered erroneously. In the respondent's case, there was no error
in the previous order of deportation because, until the court's order
of °etcher 25, 1957, in the Cara7iZ nob:, proceeding, the respondent
was an alien who, in truth and in fact, had been convicted of two
crimes involving moral turpitude.
We can perceive no logical basis for permitting the respondent in
this proceeding to attack the validity of the previous order of deportation under a fictional theory concerning an asserted retroactive
change of facts when the decided cases hold that this cannot be
done even by an alien who woe deported solely because of an
erroneous interpretation of the law. Accordingly, we reject counsers contention that the respondent's case is distinguishable on this
ground.
During the oral argument, there was some discussion concerning
our decisions holding that the law of the case becomes fixed at the
time of deportation. While such a statement was made in Matter
of 1?—, 3 I. & N. Dec. 605, supra, and Matter of P , supra,
we do not base our decision here on any such concept but solely on
the primary proposition for which all of the cited cases stand, that
is, that an alien who has been deported will not be permitted to
attack the validity of that deportation order in any subsequent
proceedings.
We have already indicated our opinion that under the factual
situation existing at the time of the respondent's deportation on
February 8, 1955, he had been convicted of two crimes involving
moral turpitude, and the fact that one of the convictions ceased to
exist on October 25, 1957, did not render the order of deportation
invalid. 'When the respondent entered the United States in March
1055, he was, in truth and in fact, an alien who had been previously
deported and who had not been granted permission to reapply for
admission to the United States. Accordingly, we hold that he was
excludable in March 1956 under 8 U.S.C. 1182 (a)(17) and that
the first lodged charge is sustained.
In connection with the three remaining charges, it is clear from
the record that the respondent entered without inspection in March
1956; that he intended to remain indefinitely; and that he did not
have an immigrant visa or other entry document. Eliminating the
conviction which was set aside in 1957, the respondent was excludable in March 1950 because of his prior conviction of a crime involving turpitude, that is, unlawfully entering a building. Counsel
contends that we should waive these defects relating to the respondent's March 1956 entry although no statutory authority for doing
so was cited and no such authority exists. 8 U.S.C. 1182(c) is
specifically limited to aliens who proceeded abroad voluntarily and
279

not under an order of deportation, and it would also be inapplicable
to the entry without inspection charge.
Counsel also contends that we should completely disregard the
entry of March 1956 and consider that the respondent has constructively remained in the United States on the theory that he
would not now be subject to deportation under 8 U.S.C.'1251(a) (4)
and he did not depart from the United States voluntarily but was
deported against his will. A similar contention was advanced and
rejected in Matter Of R — , .copra. That 041,1, was &rifled prior to
the Immigration and Nationality Act which contains a specific provision [8 U.S.C. 1101(a) (13)] that the term "entry" means any
coming of an alien into the United States from a foreign port or
place with one exception mentioned. It is further provided that
no person whose departure was occasioned by deportation shall be
entitled to the exception. Under these circumstances, we hold that
the respondent made an entry in March 1956, and we conclude that
he is deportable on the last three lodged charges mentioned above.
Counsel contends that the regulations preclude the lodging of additional charges where the proceedings are under section 242(f) of
the Immigration and Nationality Act [8 U.S.C. 1252(f)]. He cites
8 CFR 242.6 which provides that the order to show cause in the

case of

an alien within thc purview of section 942(f) shall charge

him with deportability only under that section. However, this
means only that the order to sh,ou, cause shall not contain other
charges but it does not preclude the lodging of additional charges.
As a matter of fact, 8 CFR 242.22(d), which relates only to proceedings under section 242(f), specifically refers to the lodging of
additional charges. Hence, we find this contention to be without
merit.
Counsel contends that the offense of unlawfully entering a building in violation of section 405 of the New York Penal Code does not
necessarily involve moral turpitude and that the charge that the
respondent was excludable under 8 U.S.C. 1182(a) (9) should not
be sustained. This same section of the New York Penal Code was
carefully considered in Matter of W—, 4 I. & N. Dec. 241 (1951),
in which the facts pertaining to the conviction were entirely analogous to the facts in the respondent's case. We there held that a
conviction for unlawfully entering a building in violation of section
405 of the New York Penal Code involved moral turpitude. Accordingly, we adhere to our previous similar conclusion in the
respondent's case.
During the oral argument, counsel stated that he believed that
the court would grant his proposed motion to have the 1919 indictment for grand larceny dismissed; that the respondent's first
marriage was terminated by divorce on December 12, 1958; and
000

that he will shortly marry a citizen of the United States. On this
basis, counsel asked that the case be remanded to the New York
office for consideration as to the granting of discretionary relief.
We will not remand the case on the assumptirm thnt certain contingencies may occur, and approval of the special inquiry officer's
order will be directed. However, if the indictment for grand larceny is dismissed, counsel may file a motion for reconsideration.
Order: It is ordered that the special inquiry's officer's order,
directing deportation, be and the same is hereby approved.

281


Cite as 26 I&N Dec. 563 (BIA 2015)

Interim Decision #3836

Matter of J-H-J-, Respondent
Decided May 12, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

An alien who adjusted status in the United States, and who has not entered as a lawful
permanent resident, is not barred from establishing eligibility for a waiver of
inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(h) (2012), as a result of an aggravated felony conviction. Matter of E.W.
Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219
(BIA 2010), withdrawn.
FOR RESPONDENT: Monica Nevin, Esquire, Minneapolis, Minnesota
FOR THE DEPARTMENT OF HOMELAND SECURITY: Terry M. Louie, Senior
Attorney
BEFORE: Board Panel: PAULEY, WENDTLAND, and GREER, Board Members.
PAULEY, Board Member:

In a decision dated August 29, 2014, an Immigration Judge found the
respondent ineligible for a waiver of inadmissibility under section 212(h) of
the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), in
conjunction with his application for adjustment of status under section
245(a) of the Act, 8 U.S.C. § 1255(a) (2012), and denied his application for
deferral of removal under the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted and opened for
signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for
the United States Apr. 18, 1988) (“Convention Against Torture”). The
respondent appealed and on November 13, 2014, we remanded the record
to the Immigration Judge to complete the record. The Immigration Judge
has complied and has certified the case for our adjudication of the
respondent’s appeal. The record will be remanded to the Immigration
Judge for further proceedings.
The respondent is a native and citizen of China whose status was
adjusted to that of a lawful permanent resident in 2009. On March 21,
2012, he was convicted in Minnesota of assault in the first degree, which he
has conceded is an aggravated felony.
563

Cite as 26 I&N Dec. 563 (BIA 2015)

Interim Decision #3836

The primary issue in this case is whether the respondent, a lawful
permanent resident by virtue of his adjustment of status in the
United States, is barred from establishing eligibility for a waiver under
section 212(h) of the Act as a result of his conviction for an aggravated
felony.
The Immigration Judge found that the respondent was ineligible for a
waiver in conjunction with his application for adjustment of status, even
though he became a lawful permanent resident by adjusting his status inside
the United States, rather than by being admitted at a port of entry. In
making this determination, the Immigration Judge applied Roberts
v. Holder, 745 F.3d 928 (8th Cir. 2014), a decision of the United States
Court of Appeals for the Eighth Circuit, in whose jurisdiction this case
arises. In that decision, the court held that section 212(h) of the Act is
ambiguous as to the meaning of the phrase “previously been admitted to the
United States as an alien lawfully admitted for permanent residence” and
therefore deferred to our construction of the statute in Matter of Koljenovic,
25 I&N Dec. 219 (BIA 2010), and Matter of E.W. Rodriguez, 25 I&N Dec.
784 (BIA 2012). Roberts v. Holder, 745 F.3d at 932−33.
The respondent would be ineligible for a section 212(h) waiver under
Roberts v. Holder and our decisions in Koljenovic and E.W. Rodriguez.
However, nine circuit courts have held that the plain language of section
212(h) of the Act precludes aliens from establishing eligibility for relief
only if they lawfully entered the United States as permanent residents and
thereafter committed an aggravated felony. Medina-Rosales v. Holder, 778
F.3d 1140 (10th Cir. 2015); Husic v. Holder, 776 F.3d 59 (2d Cir. 2015);
Stanovsek v. Holder, 768 F.3d 515 (6th Cir. 2014); Negrete-Ramirez
v. Holder, 741 F.3d 1047 (9th Cir. 2014); Papazoglou v. Holder, 725 F.3d
790 (7th Cir. 2013); Leiba v. Holder, 699 F.3d 346 (4th Cir. 2012); Hanif
v. Att’y Gen. of U.S., 694 F.3d 479 (3d Cir. 2012); Lanier v. U.S. Att’y
Gen., 631 F.3d 1363 (11th Cir. 2011); Martinez v. Mukasey, 519 F.3d 532
(5th Cir. 2008).1 The decisions of the Second and Tenth Circuits were
issued subsequent to Roberts and expressly disagreed with the Eighth
Circuit’s reasoning. Medina-Rosales v. Holder, 778 F.3d at 1144; Husic
v. Holder, 776 F.3d at 62, 66.
Given the overwhelming circuit court authority in disagreement with
Koljenovic and E.W. Rodriguez on the basis of the plain language of the
statute, we will now accede to the clear majority view of these nine circuits.
See Matter of C-T-L-, 25 I&N Dec. 341, 347 (BIA 2010) (stating that
consistency and predictability are important principles in immigration law);
1

We recognize that the respondent would be considered eligible for a section 212(h)
waiver if his case had arisen in any of these circuits. Only the First Circuit has yet to
address this issue.

564

Cite as 26 I&N Dec. 563 (BIA 2015)

Interim Decision #3836

Matter of Velazquez-Herrera, 24 I&N Dec. 503, 508 (BIA 2008) (“[T]he
Federal immigration laws are intended to have uniform nationwide
application and to implement a unitary Federal policy.”); Matter of Small,
23 I&N Dec. 448, 450 (BIA 2002) (acceding to appellate court authority in
the interest of uniformity in the application of the immigration laws). We
will therefore withdraw from our decisions in Matter of Koljenovic and
Matter of E.W. Rodriguez and hold that section 212(h) of the Act only
precludes aliens who entered the United States as lawful permanent
residents from establishing eligibility for a waiver on the basis of an
aggravated felony conviction. Since the respondent did not enter the
United States as a lawful permanent resident, we will remand the record to
give him an opportunity to apply for a section 212(h) waiver in conjunction
with his application for adjustment of status.2
On remand, the Immigration Judge should also consider the
respondent’s claim that it is more likely than not that he will be subjected to
torture in China on account of his conviction for a serious and violent crime
in the United States. We cannot meaningfully address the respondent’s
arguments in this regard absent sufficient legal analysis by the Immigration
Judge or adequate factual findings, which we are without authority to make
in the first instance. See Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002)
(remanding to the Immigration Judge because of insufficient factual
findings and legal analysis); 8 C.F.R. § 1003.1(d)(3)(iv) (2014) (limiting
the Board’s fact-finding authority and providing that the Board may remand
the proceeding to the Immigration Judge if further fact-finding is needed);
see also Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984) (noting that
the Board is “an appellate body whose function is to review, not to create, a
record”).
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a
new decision.

2

The respondent has submitted evidence that the relative visa petition filed on his
behalf has been approved.

565


Interim Dee...Islam #1581

Rum or Lme
In Section 248 Proceedings
A-14609823
Decided by Regional Commiesiorier May t, 1966
Since an.alien admitted as a person of distinguished merit and ability under
section 101(a) (15) (H) (I), Immigration and Nationality Act, was not maintaining such status when be applied for a change of nonimmigrant classification to that of a visitor for pleasure, he is statutorily,ineligible for a change
of nonimmigrant classification under the provisions of section. 248 of the Act.

Discussion: This is an appeal from the District Director's decision
denying the application.
The applicant is a 22-year-old single male, a native and citizen of
Korea. He entered. the United States on April 30, 1965 at which
time he was .admitted to porfonn temporary services as a person of
distinguished merit and ability until July 30. 1965. Thereafter he
received an extension until January 1, 1900. On December 21, 1965
he applied to change his •onimmigrant status to that of a visitor
for pleasure.
in a. personal interview with an officer of this Service he stated
that he had entered with a group of 36 Korean musicians to perform
in New York City and that when the group disbanded in October
1965, he came to Los Angeles where he has been living with friends.
He further stated that he and his brother, who is also here under
similar circumstances, had about $1000 between them and that neither
had return tickets to Korea.
Although an appeal was taken, no reason was given for taking
such appeal and nothing was offered in support thereof.
Section 248 of the Act provides that a change of nonimmigrant
status may be authorized only if the alien is continuing to maintain
the status of a nonimmigrant. By ceasing his temporary emi•'nyment Is an entertainer the applicant terminated his lawful nonimmigrant status and the District Director had no alternative than
601

Interior Decision #1581
to deny the application. Moreover, the appliCant's case falls squarely
within 8 CFR 103.3 (b) which provides for the dismissal of an appeal
where the party concerned fails to specify the reasons for his appeal.
Accordingly, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby

dismissed.

602


Interim Decision #2528

MATTER. OF CINTRON

In Visa Petition Proceedings
A-20583637
Decided by Board September 3, 1976
The United States citizen petitioner submitted a letter to the District Director requesting
that the visa petition filed to accord his spouse immediate relative classification be
withdrawn. The letter request was acknowledged by the District Director, but he
subsequently ordered the petition denied. In view of the petitioner's letter request that
the petition be withdrawn, the denial by the District Director was erroneous, and it is
the order of the Board that the record reflect that the petition was withdrawn by
petitioner.
ON BEHALF or PE.iiiIONER:

Fried, Fragomen & Del Rey, P.C.
515 Madison Avenue
New York, New York 10022

The United States citizen petitioner filed a visa petition in behalf of
the beneficiary as his spouse under section 201(b) of the Immigration
and Nationality Act. He subsequently submitted a letter withdrawing
the petition. In a decision dated October 9, 1975, the District Director
acknowledged having received the letter withdrawing the petition but
nevertheless ordered the petition be denied. The petitioner has appealed from the District Director's decision refusing to consider the
petition withdrawn. The appeal will be sustained.
Just as any United States citizen or lawful permanent resident may
file a visa petition in behalf of an alien, so may he withdraw the petition
before a decision has been rendered. The action of the District Director
in refusing to consider the petition withdrawn was erroneous. Accordingly, we shall sustain the appeal and order the record to reflect that the
petition has been withdrawn.
ORDER: The appeal is sustained; the visa petition filed by the petitioner in behalf of the beneficiary has been withdrawn.

9

Interim Decision *2529

MATTER OF CONCEPCION
In Visa Petition Proceedings
A-34106980

Decided by Board September 8, 1976
The provision of section 204(c) of the Immigration and Nationality Act which provides that
a visa petition shall not be approved for a beneficiary who has previously been accorded
' a nonquota or preference status based on a marriage entered into to evade the immigration laws is not applicable to a beneficiary who had previously been accorded immediate
relative status as the spouse of a United States citizen on the basis of a marriage which
never took place but which in fact was a fiction based on falsified documents. Under the
circumstances the beneficiary cannot be said to have entered into a marriage for the
purpose of evading the immigration laws, notwithstanding the fart that the Service
approved the prior immediate relative petition.
ON BEHALF OF PETITIONER: Gerald L. McVey, Esquire
Fallon, Hargreaves, Bixby & McVey
Hotanng Place
San Francisco, California 94111

The lawful permanent resident petitioner applied for preference
status for the beneficiary as his spouse under section 203(a)(2) of the
Immigration and Nationality Act. In his decision of October 28, 1975, the
Acting District Director denied the petition on the basis of section 204<c)
of the Act.
The petitioner and the beneficiary were married on May 9, 1975. The
Present petition was filed on June 3, 1975. The beneficiary had previously been accorded immediate relative status as the spouse of a United
States citizen when a visa petition in her behalf was approved on
September 21, 1972, and she entered the United States with an immigrant visa on October 30, 1972. It was determined subsequently, in
deportation proceedings, that the marriage upon which the visa petition
was based was a fiction and had never taken place, and the beneficiary
was found deportable as an alien who was excludable at entry under
section 212(a)(19) and section 212(a)(14).
section 204(c) of the Immigration and Nationality Act reads, in pertinemt part, as follows:
. .. [No petition shall be approved if the alien has previously been accorded a nonquota
or preference status as the spouse of a citizen of the United States or the spouse of an
10

Interim Decision #2529
alien lawfully admitted for p ermanent residence, by reason of a marriage determined by
for the purpose of evading the immigration laws. (Emphasis supplied.)

the Attorney General to have been entered into

The beneficiary has previously been accorded immediate relative
status as the spouse of a United States citizen. However, she was
accorded that status on the basis of falsified documents. No marriage
was entered into, and therefore it cannot be determined that she obtained immediate relative status on the basis of a marriage entered into
for the purpose of evading the immigration laws.
Although the beneficiary profited from the previous Service determination that a marriage existed in the same way as if she had entered into
a sham marriage, still the fact is that the marriage did not exist and
therefore section 204(c) does not apply to the facts of this case.
Because the Acting District Director based his decision on section
204(c), he does not appear to have considered or reached a decision as to
whether the marriage between the petitioner and the beneficiary was
entered into in good faith. Accordingly, we shall remand the record for
further proceedings along these lines and so that the District Director
may enter a new decision.
ORDER: The appeal is sustained and the record is remanded to the
District Director for further proceedings in accordance with the above

opinion.

11


Interim Decision *1913

MATTER OE

LING

In Visa Petition Proceedings
• A-10800904
Decided by Regional Commissioner October 28, 1968
Since "business administration" is a general term including both professional and nonprofessional activities, a degree in business administration
alone is insufficient to qualify the holder thereof as a member of the professions under section 101(a) (32) of the Immigration and Nationality Act,
as amended, unless the academic courses pursued and knowledge gained is
a realistic prerequisite to a particular occupation in the field of business
administration in which he is engaged or plans to be engaged; hence, petitioner, who has a Bachelor of Science degree in Business Administration,
is denied preference classification under section 203(a) (3), of the Act
since he has failed to establish in what profession, if any, in the field of
business administration he intends to engage or is qualified.
ON BEHALF or PErrriorma: Wellington Y. Ewan, Esquire

1260 Wilshire Boulevard, Suite 100
Los Angeles, California 90017

This case comes forward on appeal from the decision of the
District Director, Los Angeles, who on August 12, 1968, denied
the petition in that petitioner had failed to establish an intent to
engage in a professional occupation. Oral argument was re-

quested and granted. Counsel appeared for such argument as
scheduled.
Petitioner is a 38-year-old married male, a native and citizen of

China who was admitted to the United States as a student on October 20, 1956, and received extensions of stay in that status to
June 1, 1963.
The record shows the petitioner obtained a Bachelor of Science
degree in Business Administration from a Los Angeles college on
August 29, 1958, and that he was employed as a bookkeeper from
1958 to 1960, as a bank teller from 1962 to 1966, and has since

April 25, 1966, been employed in Los Angeles as an electronic
technician.

The present petition was filed March 21, 1968, for preference

35

Interim Decision *1913
classification under section 203 (a) (3) of the Act as a member of
the professions as "business administration." Form ES-575A,
"Statement of Qualifications," indicates that petitioner is seeking

work in the United States as a "business manager."
Section 101 (a) (32) of the Act defines the term profession as
follows: "The term 'profession' shall include but not be limited to
architects, engineers, lawyers, physicians, surgeons, and teachers
in elementary or secondary schools, colleges, academies or seminaries." In the Matter of Asuncion, 11 I. & N. Dec. 660, it is
stated:
Examination of the occupations named in section 101 (a) (32) of the Act
indicates the following characteristics common to all: (1) Recognition as a
member of those nrofessions normally requires a successful completion of a
specific course of education on the college or university level, culminating
in the attainment of a specific type of degree or diploma; and (2) the attainment of such degree or diploma is usually the minimum requirement for
entry into those occupations.

In the Matter of Shin, 11 I. & N. Dec. 686, it is brought out
that "profession" as defined by section 101 (a) (32) of the Immigration and Nationality Act, as amended, contemplates knowledge
or learning—not merely skill—of an advance type in a given field
gained by a prolonged course of specialized instruction and study
of at least baccalaureate level, which is a realistic prerequisite to
entry into the particular field of endeavor.
The primary issue in his case is whether or not "business administration" or be it "business administrator" is a profession
which falls within the definitions of professions which qualify for
preference classification under section 203 (a) (3) of the Act.
The DICTIONARY OF OCCUPATIONAL TITLES, Volume I,
"Definition of Titles," published by the Department of Labor,
names and defines 35,550 separate occupations but does not include business administration, business administrator or business
manager as an occupation or profession. Review of Volume II,
"Occupational Classification" of the DICTIONARY OF OCCUPATIONAL TITLES, and of the supplement to the
DICTIONARY fails to identify business administration, business
administrator or business manager as an occupation or profession.
"Business administration" is a broad field, a field which contains various occupations and/or professions, all of which are related to the world of business but each requiring a different
academic preparation and experience peculiar to its needs. The
OCCUPATIONAL OUTLOOK HANDBOOK, also published by
the Department of Labor, shows that business administration is a

36

Interim Decision * 1913
general term and includes various occupations such as accountant, advertising workers, industrial traffic manager, marketing
research workers, personnel workers, and purchasing agents;
thus, including both professional and nonprofessional activities.
Careful review of the discussion of these occupations shows that
while all are related to the world of business, each has its own
emphasis on the academic training and experience required for
qualification in that occupation. It is evident that while a person
may have a degree in, business administration, such degree may
qualify him for some but not all of the occupations included in
the broad field of business administration. For example, a person
with a degree in business administration, major in accounting,
would not qualify as a public relations man or personnel manager
and vice versa. Therefore, a petitioner with a business administration degree must clearly establish a particular area and occupation in the field of business administration in which he is engaged or plans to be engaged and must also establish that he
meets the special academic and experience requirements of that
designated activity, as a prerequisite to a determination as to
professional status.
In the instant case the Secretary of Labor, pursuant to section
212 (a) (14) of the Act, has issued a certification for "administrative specialities" under Schedule C, Group II, of 29 CFR 60 with
the initial three digit code of 169. The supplement to the DICTIONARY OF OCCUPATIONAL TITLES lists 38 different occupations under this initial three digit code, occupations which
range from six months to ten years in the SVP (specific vocational preparation) time required to acquire proficiency in a
given occupation. This list of 38 occupations does not include
business administration or business administrator or business
manager. Certification has been issued, but the petition does not
indicate that petitioner will be employed in any of the occupations in code 169 that are certified.
Counsel cites Matter of Shin, 11 I. & N. Dec. 686. This case relates to a person who sought preference classification as an economist, had a master's degree in economics and was working on his
doctorate. This decision in part stated :
The mere acquisition of a degree or equivalent experience does not of itself
qualify a person as a member of a. profession. The knowledge acquired must
also be of a nature that is a realistic prerequisite for entry into the particular field of endeavor.

The decision points out that a degree in business administration alone is not enough to qualify the holder as a member of the
37

Interim Decision #1913
professions unless the academic courses pursued and knowledge
gained is a "realistic prerequisite" for the profession; so that if
he seeks recognition as an accountant, his academic courses be
predominantly in that area rather than in the general field of
business administration.
Counsel also cites Matter of Chu, 11 I. & N. Dec. 881. The
headnote to that decision, which of course is not part of the decision, is misleading and may have caused some misunderstanding.
It indicates that "business administration" is a profession. How r
-evr,cafuldingotheslfabihets
occupations in the field of business administration that may be
professions. Our review of the record in this case shows that it
relates to a person seeking recognition as an accountant who had
a baccalaureate degree in business administration in the field of
accounting, who was seeking work as an accountant, who was
working for a firm which had stated, "Peter Chu has the college
and accounting background we need," and was utilizing his accounting skills on his job described as follows:
His background of a college degree and accounting fulfills the unique requirement we need to fill our sales positions. Their duty is to analyse systems in various offices and show how mechanized accounting assists customer
to get more current information and a much more efficient operation. He
must also install and train on these systems.

The decision quotes a Department of Labor letter as follows :
Mr. Chu's degree in Business Administration was given by an accredited
United States college. Graduates of business administration courses may
qualify for several occupations coded as professional in the second edition of
the Dictionary of Occupational Titles, e.g., Accountant, Auditor, Property-rehabilitation Clerk (in insurance), Dealer-Contact Man, Employment Manager, Personnel Manage; Salary and Wage Administrator, Field Representative, to name some. Business Administration graduates may qualify for a
greater number of professional occupations defined in the third edition of
the DOT.

This letter points out that a business administration graduate
professions in the general field of business. A person would have had
to take courses, or gained knowledge (considered to be a realistic
prerequisite), in a particular occupation or profession in the field
of business administration and designated by him as the profession in which he seeks preference classification.
In reference to the Department of Labor letter quoted above,
the Regional Commissioner stated : "We agree with the Department of Labor that occupations in business administration for
which a person qualifies by reason of high education are profesmay qualify for several professional occupations but not all

38

Interim Decision #1913
sional occupations." He did not say that a business administration degree qualified a person for all occupations in business. He
referred to occupations in business administration, and limited
those occupations to those for which the person qualified (by reason of high education) and are recognized as professional occupa-

tions.
Considering all the factors as discussed above, we cannot find
that it has been established that "business administration" is a
profession, The record has failed to establish in what profession,
if any, petitioner is either qualified for or intends to engage in.
He has not established that he has been engaged in any profession. Occupations in which he has work experience—bookkeeper,
bank teller, and electronic technician—are not professions. In the
Matter of Drantigan, 11 I. & N. Dec. 493, it is held that the bur-

den of proof to establish eligibility for a desired preference rests
with the petitioner. That burden of proof has not been met.
The case will therefore be remanded to the District Director to
afford petitioner an opportunity to supplement his application
with such evidence as he may desire to establish his claimed professional capacity, in conformance with the discussion herein.
The District Director is authorized to consider such additional evidence as may be presented and make his decision anew.
ORDER: It is ordered that the case be remanded to the District Director in line with the above.

39


Interim Decision #2175

MATTER OF CHU
In Section 249 Proceedings
A-17528669
Decided by Regional Commissioner December 5, 1972
Where Service action to adjust an alien's status to that of a nonimmigrant
pursuant to the provisions of section 247 of the Immigration and Nationality
Act failed to adhere to the substantive provisions of the governing regulation
(8 CFR 247.11), thereby constituting a denial of due process, the section 247
action was null and void. Hence, the alien's subsequent application for the
creation of a record of lawful admission for permanent residence under section
249 of the Act is denied on the basis he is a lawful permanent resident of the
United States notwithstanding the prior section 247 action.

This matter is before the Regional Commissioner on certification
as provided by 6 CFR 103.4 for review of the District Director's

decision denying the application for status as a permanent resident under section 249 of the Immigration and Nationality Act, as
amended. •
Insofar as pertinent to the present application, section 249
provides for the creation of a record of lawful admission for
permanent residence in the case of an alien who establishes that
he (a) entered the United States prior to June 30, 1948, (b) has had
his residence in the United States continuously since such entry,
(c) is a person of good moral character, and (d),is not ineligible to
citizenship.

The applicant is a 26 year-old unmarried citizen of China born in
Washington, D. C. on November 23, 1946 while his father, KuangChe Chu, was assigned to the Embassy of China in Washington in
a diplomatic status (attache) which exempted him and members of
his family from the jurisdiction of the United States, Thus the
applicant was born not subject to the jurisdiction of the United
States and therefore did not derive United States citizenship
under the Fourteenth Amendment to the Constitution. (See
United States v. Wong Kim Ark, 169 U.S. 649.) He has never
departed from the United States.
The District Director denied the application because he found
that the applicant already had the status of a lawful permanent
resident alien by virtue of his birth in the United States. (Matter of
Huang, 11 I. & N. Dec. 190.)
241

Interim Decision #2175
The applicant's mother is a staff member of the United Nations
holding the post of calligrapher in the Office of Conference Services. In March of 1967 this Service received a routine request from
the United Nations for a change of status for Mrs. Chu to that of a
staff member of the United Nations under section 101(aX15)(GXiv)
of the Immigration and Nationality Act. This request was routinely granted and a new temporary entry record (Form 1-94) was
issued. (Mr. Chu, the applicant's father, at that time was employed
by the Chinese Government Procurement and Service Mission at
New York and entitled to nonimmigrant status under section
101(aX15)(A) of the Act.)
Because the applicant had previously been listed in the passport
of his mother and had by then been issued a passport of his own,
in May of 1967 the United Nations forwarded to this Service the
applicant's passport requesting that he be granted "G-4" status as
a member of Mrs. Chu's household. He was then twenty years of
age. The Service also routinely granted this request and issued a
temporary entry record (Form 1-94) showing a change to "G-4"
status for the duration of such status, apparently not realizing
that the applicant was entitled to status as a permanent resident
of the United States. This action ostensibly resulted in a change of
status from that of a permanent resident to that of a nonimmigrant as provided for in section 247 of the Immigration and
Nationality Act.
Section 247 provides as follows:
.

(a) The status of an alien lawfully admitted for permanent residence shall be
adjusted by the Attorney General, under such regulations as he may prescribe,
to that of a nonimmigrant under paragraph (15)(A), (15)(E), or (15XG) of section
101(a), if such alien had at the time of entry or subsequently acquires an
occupational status which would, if he were seeking admission to the United
States, entitle him to a nonimmigrant status under such sections. As of the date
of the Attorney General's order making such adjustment of status, the Attorney
General shall cancel the record of the alien's admission for permanent residence,
and the immigrant status of such alien shall thereby be terminated.
(b) The adjustment of status required by subsection (a) shall not be applicable
in the case of any alien who requests that he be permitted to retain his status as
an immigrant and who, in such form as the Attorney General may require,
executes and files with the Attorney General a written waiver of all rights,
privileges, exemptions, and immunities under any law or any executive order
which would otherwise accrue to him because of the acquisition of an occupational status entitling him to a nonimmigrant status under paragraph (15)(A),
(15)(E), or (15)(G) of section 101(a).

In the regulations prescribed by the Attorney General for
administering section 247 of the Act, 8 CFR 247.11 reads, insofar
as here pertinent:
Notice. If it appears to a district director that an alien residing in his district,
who was lawfully admitted fur permanent residence, has an occupational statue

242

Interim Decision #2175
described in section 247 of the Act, he shall cause a notice on Form 1-509 to be
served on such alien by personal service informing him that it is proposed to
adjust his status, unless the alien requests that he be permitted to retain his
status as a resident alien and executes and files with such district director a
Form 1-508 (Waiver of Rights, Privileges, Exemptions, and Immunities)* * * *,
within 10 days after service of the notice, or the alien, within such 10-day period,
files with the district director a written answer under oath setting forth reasons
why his status should not be adjusted. The notice shall also advise the person
that he may, * * * * within such period and upon his request have an opportunity to appear in person, in support or in lieu of his written answer, before an
immigration officer designated for that purpose * * * *.
In acting to adjust the status of the applicant in 1967 to that of a

nonimmigrant under section 101(a)(15)(GXiv) of the Act, the Service did not place the applicant or his guardian (the applicant being
then a minor) on notice of its intention to take the action. Neither
was afforded an opportunity to object to the pro,poSed change of
status and offer representations why such, action should not be
taken. They were not afforded the opportunity to file a Form 1-508
(Waiver of Rights, Privileges, Exemptions, and Immunities).
Clearly, the Service failed to adhere to its own published regulations when it purportedly changed the applicant's status.
Numerous court decisions have held that failure of the Service

to adhere to published regulations may deny due process of law.
(Bridges v. Wixon, 326 U.S. 135, 65 S. Ct. 1443, 89 L. Ed. 2103 (1945);
Aceard'i v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681
(1954); Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed. 2d
1403 (1957); Fragale v. Rogers, 175 F. Supp. 658 (1959)).
The District Director has decided that the nature of the action
taken in 1967 to adjust the applicant's status was a substantive
violation of published Service regulations resulting in a denial of
due process of law and therefore null and void. Further, he has
concluded that the applicant has never lost his status derived at
birth as a lawful permanent resident alien. We concur with these
conclusions and agree that under the circumstances the application must be denied.
When afforded the opportunity to do so on December 28, 1971,
the applicant executed and filed a Form 1-508 (Waiver of Rights,
Privileges, Exemptions and Immunities) indicating his desire to
retain the status of a lawful permanent resident. Additionally, on

August 24, 1972 he filed an Application to File Petition for
Naturalization which is currently pending.
It is ordered that the application for creation of a record of
lawful permanent residence be denied..
It is further ordered that the applicant be considered to be a
lawful permanent resident of the United States from the date of
his birth on November 23, 1946.
243