Interim Decision #2683

MATTER OF MALONEY
In Visa Petition Proceedings
A-22560105

Decided by Board December 21, 1978
(1) Under the Constitution of Panama of March 1, 1946, and its implementing law of
September 20, 1946, all acknowledged children are to be treated equally and considered
legitimate, regardless of whether or not the natural parents ever marry.
(2) The right of legitimation extends to those born before March 2, 1946. To preserve this
right, in eases where paternity has not previously been acknowledged in the birth
records, it is only necessary for the father to rectify the birth registration in the Civil
Registry.
(3) Where petitioner acknowledged his paternity of illegitimate child before officials of the
Civil Registry in Panama in 1937, 13 days after the birth of the beneficiary, legitimation
occurred on that date under the law of Panama.
ON BEHALF OF PETrrioNEA: Pro se
BY: Milhollan, Chairman; Pdaniatis, Appleman, Maguire, and Farb, nuard Memb e rs

The United States citizen petitioner has applied for immediate relative status for the beneficiary as his married daughter, under section
203(a)(4) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(4).
in a decision dated July 14, 1978, the District Director denied the
petition on the groupd that the claimed relationship had not been established. The petitioner has appealed. The record will be remanded.
The petitioner is a 64-year-old native of Panama and a naturalized
citizen of the United States. The beneficiary is a 41-year-old native
and citizen of Panama, the offspring of the petitioner and a Panamanian
citizen.
The District Director denied the petition on the ground that the
beneficiary was illegitimate at birth and had never been legitimatedthe petitioner, Olk appeal, contests this finding, and has presented a
certificate of birth listing him as the beneficiary's father. The birth
c ertificate indicates that the petitioner declared that the beneficiary was
his daughter on July 7, 1937. The question that arises is whether or not
this declaration is sufficient, under Panamanian law, to constitute ari
a-cknowledgment of paternity legitimating the beneficiary.
previous cases we have dealt with under Panamanian law concerned
children born after tile enactment of the Constitution of 1946. Matter of
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Interim Decision #2683

Dela Rosa, 14 I. & N. Dec. 728 (BIA 1974); Matter of Sinclair, 13 I. &
N. Dec. 613 (BIA 1970). In this ease, the beneficiary was born in 1937.
Under the provisions of Law 43 of 1925, then in fore e, legitimation could
only be accomplished by marriage to the natural mother and acknowledgment, either before, during, or after the ceremony. The petitioner
never married the natural mother, so under the provisions of Law 43,
the beneficiary was never legitimated. However, this finding does not
close the discussion.
The Constitution of March 1, 1946, while not providing that all laws
were to have retroactive effect, did repeal all laws not compatible with
it'. Article 58 granted all children equal rights before the law and
abolished classification based upon the nature of the father-child relationship.2 "Classification" referred to the categories legitimate, natural,
or illegitimate which had existed under prior laws. 3 Article 59 granted
fathers the authority to protect children born before the effective
date of the Constitution, by "rectifying" any records in which such
"classification" had been established.'
In addition, Law 60 of September 30, 1946, which implemented the
provisions of Articles 58 and 59, provides that a father may protect a
child born prior to March 2, 1946, by rectifying records which qualify
the child. Such rectification protects the child as provided in Article 59
of the Constitution. Article 62 of Law 60 deals with acknowledgment of
a child of legal age where uch was not recorded in his birth registration. 5 Article 70 allows a father to protect the child under the Constitution by having the child's birth record annotated in the margin. 6
The language of the constitutional and statutory provisions indicates
two things. The first is that under the 1946 Constitution, all acknowlArticle 44, Constitution of 1946; Article 253, id.

id.
. . . All children are equal before the law and they have the same rights.... Any

2

Article 58,

classification based on the nature of the relationship is abolished. . . .
o Civil Code of 1916.
• Article 59, Constitution of 1946.
Authority is granted to the father of a child born before the effective date of this
Constitution to protect him by the provisions of this Article, ty means of the rectification of any record or attestation in which any classification has been established with
respect to said child.
5 Article 62, Law of September 30, 1946.
All children are equal under the law, have the same interstate inheritance rights and the
right to be acknowledged by their parents... .
o Article 70, id.
In order for the father of a child born prior to March 2, 1946, to protect him under the
provisions of Article 59 of the Conbtilmiluo, lie alien declare it. in a public instrument, a
copy of which shall be submitted to the Civil Registry, for annotation in the margin of
the child's birth record.

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Interim Decision #2683
edged children are to be treated equally in the eyes of the law as
legitimate children. It is clear that acknowledgment of paternity, with
or without marriage, will lead to legitimation. The second thing it
indicates is the clear intent of the Panamanian drafters to confer the
right to be treated equally, the right of legitimation, to those born
before March 2, 1946. To preserve this right, it is only necessary to
rectify the birth registration where paternity has not been acknowledged_ This language shows a clear desire to consider children previously acknowledged, before the Constitution of 1946 went into effect, as
legitimate from the time the acknowledgment was entered into the Civil
Registry. This result also flows naturally from the absence of any
provisions requiring previously acknowledged children to be legitimated
by an action such as rectification, which is necessary where paternity
was not previously acknowledged.
The legitimation here occurred on July '7, 1937, when the petitioner
went before the officials of the Civil Registry and acknowledged his
paternity. Since this acknowledgment was made 13 days after the birth
of the beneficiary, we also find that the act of legitimation occurred
before the age of 18.
Under section 101(b)(1)(C) of the Act, 8 U.S.C. 1101(b)(1)(C), though,
one question remains unresolved on the record before us. The third
requirement of that section is that the child must be in the legal custody
of the legimating parent or parents when the act of legitimation occurs.
We have found that the beneficiary was legimated on July 7, 1937, when
the written acknowledgment was made in the Civil Registry. It is
unclear, however, whether the petitioner had legal custody at that time.
We will therefore remand the record to the District Director for clarification of this point.
ORDER: The record is remanded to the District Director for further
proceedings consistent with the foregoing opinion and the entry of a new
decision.
FURTHER ORDER: Should a decision be adverse to the petitioner,
an appropriate order shall be entered and the record shall be certified to
lus for review.

652


Interim Decision #2291

MATTER OF

RODRIGUEZ

In Deportation Proceedings
A-10192395

Decided by Board May 31, 1974
Conviction of unlawful possession of an unregistered sawed-off shotgun in
violation of 26 U.S.C. 5841 and 5851, upon a plea of nobo contendere, constitutes
a ground of deporation under section 241(a)(14) of the Immigration and
Nationality Act.
CHARGE:
Order: Act of 1952—Section 241(a)(14) [8 U.S.C. 1251(a)(14)]—Convicted after
entry of possessing or carrying in violation of any law
a weapon commonly called a sawed -off shotgun_
ON BEHALF OF RESPONDENT:

Eric Welch, Esquire
Garland & Garland
1022 The Candler Building
Atlanta, Georgia 30303

The immigration judge found the respondent deportable on the
above-stated charge and certified the case to the Board for final
decision. This matter is also before us on respondent's appeal from
the immigration judge's order. No change will be made in his
order.
The respondent is a 40-year-old divorced male alien, a native and
citizen of Cuba, who entered the United States on March 16, 1960
as a Cuban refugee under the parole provisions of section 212(dX5)
of the Immigration and Nationality Act. His status was adjusted
to that of a permanent resident effective October 25, 1964, pursuant to the provisions of the Act of November 2, 1966. On May 18,
1967, he was convicted in the United States District Court, Northern District of Georgia, at Atlanta, Georgia, after entering a plea
of nolo contendere, of the offense of possessing a firearm which
had not been registered as required by 26 U.S.C. 5841, in violation
of 26 U.S.C. 585L He was sentenced to imprisonment for a period
of one day, execution of the sentence suspended and probation for
the period of one day.
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Interim Decision #2291
The indictment under which respondent was convicted charged:
That, on or about December 10, 1966, in the Northern District of Georgia,
CESAR AGUSTO RODRIGUEZ-BARRETO, defendant herein, wilfully and
knowingly did possess a firearm, that is, a single barrel 12 guage Stevens
shotgun, Model 94C, having a barrel length of 11 3A inches, which had not
been registered with the Secretary of Treasury or his delegate, as required by
Section 5841, Title 26, United States Code, in violation of 26 U.S.C. 5851.

On the date of the alleged offense, 26 U.S.C. 5841 read in
pertinent part as follows:
Evei-y person possessing a firearm shall register, with the Secretary or his

delegate, the number or other mark identifying such firearm, together with
his name, address, place where such firearm is usually kept, and place of
business or employment, and, if such person is other than a natural person,
the name and home address of an executive officer thereof.

On the date of the offense alleged against the respondent, 26
U.S.C. 5851 read in pertinent part as follows:
It shall be unlawful for any person ... to possess any firearm which has not
been registered as required by Section 5841. Whenever on trial for violation of
this section the defendant is shown to hav,e or to have had possession of such
firearm, such possession shall be deemed sufficient evidence to authorize
conviction, unless the defendant explains such possession to the satisfaction
of the jury.

Section 241(a)(14) of the Act states, in pertinent part, the
following:
Any alien in the United States ... shall be deported who— at any time after
entry, shall have been convicted of possessing ... in violation of any law any
weapon which shoots or is designed to shoot automatically or semiautomatically more than one shot without manual reloading, by a single function of
the trigger, or a weapon commonly called a sawed-off shotgun.

At issue is the question of whether the respondent is deportable
as an alien convicted of possessing in violation of law a weapon

commonly called a sawed-off shotgun within the provisions of
section 241(a)(14) of the Act. Counsel for respondent argues (1) that
a determination of deportability is not proper where the respondent's conviction was for use of a company-furnished weapon
without personal knowledge that a law was being violated; (2) that
a conviction on the basis of a plea of nolo contendere does not rise
to the level of a final conviction; and (3) that a determination of
deportability is not proper where the respondent's conviction was
on the basis of a plea of nolo contendere without the court advising
him as to the possibility of deportation. We find no merit to
counsel's contentions.
Congress redefined the term "firearm" in 26 U.S.C. 5848(1) on
June 1, 1960, P.L. 86-478, section 3, to include a shotgun or rifle
having a barrel or barrels of less than 18 inches in length, or a rifle
having a barrel or barrels of less than 16 inches in length. The
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Interim Decision #2291
legislative history discloses that the purpose of this was "to
include within the category of weapons subject to these taxing and
control provisions the sawed-off shotguns and sawed-off rifles
likely to be used by the gangster element." See U.S. Code Congressional and Administrative News, p. 2113 (1960). The court in
United States v. Coots, 196 F. Supp. 775 (D.C. Tenn. 1961) stated:
"In the definition of illegal weapons (26 U.S.C.A. 5848) both sawedoff shotguns and sawed-off rifles are described as weapons to
which the Act would apply." Since the Overall length of the barrel
of the shotgun described in the grand jury indictment was 17 -3/4
inches, this firearm was a weapon commonly called a sawed-off
shotgun.
The respondent's conviction was for possession of a firearm of
the type described in section 241(aX14) of the Act. We cannot
consider counsel's assertion that the shotgun was the property of
the respondent's employer and that the respondent was not aware
that possession might be a violation of the law. A conviction may
not be attacked in a deportation proceeding, since there is no
authority to go behind the record of conviction to determine the
respondent's quilt or innocence, Cruz-Sanchez v. INS, 438 F.2d
1087 (C.A. 7, 1971), Rassano v. INS, 377 F.2d 971 (C.A. 7, 1966).
For the purposes of deportation, a guilty judgment following a
nolo contenders plea constitutes a conviction where the fact of the
conviction is itself the only thing that is relevant, Buds -Rubio v.
INS, 380 F.2d 29 (C.A. 9, 1967), cert. denied 389 U.S. 944 (1967);
Tseung Chu v. Cornell 247 F.2d 929 (C.A. 9, 1957), cert. denied 355
U.S. 892 (1957). Section 241(a)(14) of the Act does not require that a
conviction be coupled with a sentence before liability to deportation attaches. Accordingly, since under section 241(a)(14) of the Aet
the fact of conviction is the only thing that is relevant, the
judgment of conviction could be used against the respondent in
these deportation proceedings.

The court does not accept a plea of guilty or of nob contenders
unless it is satisifed that the defendant understands the direct
consequences of the plea, but the court is not required to consider
the consequence of a finding of guilty on the ancillary matter of
deportation, United States v. Sambro, 454 F.2d 918 (D.C. Cir. 1971).
There is no duty upon the court to advise each defendant of the
possibility of deportation before accepting a plea, United States v.
Santelises, 476 F.2d 787 (C.A. 2, 1973); U.S. ex rel. Durante v.
Holton, 228 F.2d 827 (CA. 7, 1956), cert. denied 351 U.S. 963 (1956).
Our review of the facts and the applicable law satisfies us that
deportability was established by evidence which is clear, convinc708

Interim Decision #2291
ing and unequivocal. The respondent has not applied for any
discretionary relief from deportation. Accordingly, we find no
reason to reverse the order of the immigration judge.
ORDER: No change is made in the immigration judge's order.

709


Interim Decision #2081

MATTER OF SOLIS-DAVILA

In Deportation Proceedings
A-10816558
Decided by Board April 28, 1971
The departure foreign of an alien while an order of deportation was outstanding effectively executed that order notwithstanding a petition for review of the deportation order under section 106 of the Immigration and
Nationality Act, as amended, was pending at the time of departure.
CHARGE:

Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1))—An alien
who at time of entry was excludable as one who
had been arrested and deported, consent to apply
or reapply for admission not having been granted
by the proper authority under section 212 (a) (17)
of the Act.
ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Joseph J. Rey, Esquire
543 Magoffin Avenue
El Paso, Texas 79901

William F. Weinert
Trial Attorney

Respondent, through. counsel, appeals from an adverse order of
the special inquiry officer dated February 16, 1971, directing deportation to Mexico on the charge set forth above.
Respondent was first ordered deported by a decision of the special inquiry officer dated May 25, 1970, on the ground that he had
entered the United States without inspection. Section 241 (a) (2)
of the Immigration and Nationality Act (8 U.S.C. 1251 (a) (2)).
On appeal, this Board entered an order dated June 18, 1970
dismissing the appeal. The following month, respondent filed a
petition for review of that order in the United States Court of
Appeals for the Fifth Circuit. Respondent was thereafter located
in Mexico on or about September 11, 1970, allegedly preparing to
smuggle aliens into the United States. He reentered the United
States and deportation proceedings were again instituted and respondent was found deportable on the charge set forth above. ReS94

Interim Decision #2081
spondent was also convicted on September 25, 1970 in the United
States District Court in El Paso, Texas. He was adjudged guilty
for having committed the offense of having unlawfully transported and removed aliens who had not been duly admitted by an
immigration officer of the United States and were not lawfully
entitled to enter and to reside within the United States, in violation of Title 8, United States Code, section 1324 (a) (2). Respondent was sentenced to serve a term of imprisonment for a period
of six months and placed on probation for a period of five years.
(Ex. 3).
Counsel contends that respondent is not deportable because of
his departure foreign while the Board's order of June 18, 1970
was in effect and that his subsequent entry does not support an
order of deportation. Counsel further contends that there was no
final order of deportation with respect to the original proceedings, in that no order had been entered by the Court of Appeals
for the Fifth Circuit prior to his departure.
It is clear the respondent departed while the Board's order of
June 18, 1970 was in effect and under review in the Court of Appeals pursuant to section 106(a) of the Immigration and Nationality Act. As a result, enforced deportation was precluded by section 106(a) (3) of the Immigration and Nationality Act. The fact
is that the filing of the petition for review did not affect the deportation order under review and there is no judgment of the
Court of Appeals affecting the Board's order. Accordingly, the alien's departure while the order of deportation was outstanding
effectively executed that order. Section 101 (g) , Immigration and
Nationality Act.
Counsel presented no authority in support of his position that
respondent's subsequent entry does not support an order of deportation. We affirm the order of the special inquiry officer dated
February 16, 1971. We find counsel's other contention to the effect
that respondent was not given an opportunity to crossexamine
the witnesses without merit.
ORDER: It is ordered that the appeal be dismissed.

695


Marrzr or F——
In SECTION 245 Proceedings
A-10620326
Devided by Assistont Commissioner July 7, 1958

Adjustment of status—Section 245—Good moral character.

(1) The standards in section 101(f) of the 1952 act will be taken into con-
sideration in determining whether an applicant for adjustment of status
‘ander section 245 of the act has satisfied the administrative requirement
that good moral character be established for the 5-year period preceding the
filing of the application.

(2) Adjustment will not be granted in the case of a married man living in
adultery.

BEFORE THE ASSISTANT COMMISSIONER

Discussion: This case has been certified to the Assistant Com-
missioner, Examinations Division.

This is an appeal from the decision of the District Director at
Detroit, Michigan, denying application for adjustment of status un-
der section 245 of the Immigration and Nationality Act to that of
®& permanent resident. Denial was based on a finding that the
applicant failed to establish that he is a person of good moral
character.

The applicant is a 35-year-old married male, native and citizen
of Germany, who was admitted to the United States June 25, 1955,
as an exchange visitor. He was admitted for a period of one year
to work and study as an intern. He served his internship in the
Woman’s Hospital, Detroit, Michigan, from July 1, 1955, to June
30, 1956. He then served as a resident physician at St. Joseph’s
Hospital, Parkersburg, West Virginia, from July 1, 1956, to June 30,
1957, and later in Blodgett Memorial Hospital, Grand Rapids, Michi-
gan. He filed his application for adjustment of status June 26,
1957. Since his last extension of stay was granted August 8, 1956,
he is not subject to the foreign residence requirement of Public Law
555, 84th Congress.

In his application he alleged that he is married; that his wife's
name is M——-; that they were married May 6, 1950; that they have
2 children, ages 5 and 6 years, respectively; and that his wife and

65

children reside in Germany. As evidence of his financial status, he
submitted a letter from the Parkersburg National Bank, Parkers-
burg, West Virginia, stating that as of June 21, 1957, the records of
that bank disclose a balance of a certain amount in the joint account
of R—-F—, M.D., or L——F-———. When questioned about his
marital status April 15, 1958, the applicant signed an affidavit stat-
ing that although he was still married te M——,, he was then living
as man and wife with E——W—— and that she is also married but
not to him.

Section 245(a) of the Immigration and Nationality Act provides
that:

The status of an allen who was lawfully admitted to the United States as a
bona fide nonimmigrant and who is continuing to maintain that status may be
adjusted by the Attorney General in his discretion (under such regulations as
he may prescribe to insure the application of this paragraph solely to the cases
of aliens who entered the United States in good faith as nonimmigrants) to
that of an alien lawfully admitted for permanent residence ag a quota immi-
grant or as a nonquota immigrant under section 101(a)(27)(A), if (1) the
alien makes application for adjustment, (2) the alien is admissible to the
United States for permanent residence under this Act, (3) a quota or nonquota
immigrant visa was immediately available to him at the time of his application
for adjustment, (4) a quota or nonquota immigrant visa is immediately avail-
able to him at the time his application is approved, and (5) if claiming a
nonquota status under section 101(a) (27) (A) he has been in the United States
for at least one year prior to acquiring that status. A quota immigrant visa
shall be considered immediately available for the purposes of this subsection
only if the portion of the quota to which the alien is chargeable Is undersub-
seribed by applicants registered on a consular waiting list. Any alien who
shall file an application for adjustment of his status under this section shall
thereby terminate his nonimmigrant status.

In addition to the basic requirements of this provision of law and
the implementing regulations, we have required that the applicant
establish good moral character.for the 5 years prior to the filing of
his application as a reasonable and proper basis, among others, for
determining whether the Attorney General’s discretion shall be ex-
ercised in a particular case (Matter of H——R——, A-10463832,
7 I. & N. Dec. 651). While section 101(f) of the act prevents s
person from being regarded as a person of good moral character if,
during the period for which good moral character is required to
be established, he has committed adultery, an applicant for adjust-
ment of status under section 245 is not precluded by that section
from establishing good moral character as neither the law nor the
implementing regulations include such a requirement (Matter of
N——, A-4532071, 7 I. & N. Dec. 368). However, consideration
should be given to the standards set forth in section 101(f) in deter-
mining whether the applicant is worthy of the relief requested by
him.

On April 15, 1958, applicant admitted that he was a married
man and that he was at that time living in adultery with a married
woman, not his wife. In view of such conduct, the granting of his
application for adjustment of status is not warranted. The action of
the district director in denyin, the application was proper and the
appeal will be dismissed.

Order: It is ordered that the appeal be and the same is hereby
diemisced

87


Cite as 28 I&N Dec. 214 (BIA 2021)

Interim Decision #4007

Matter of Mikhail Petrovich DIKHTYAR, Respondent
Decided January 22, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Section 58-37-8(2)(a)(i) of the Utah Code, which criminalizes possession or use of a
controlled substance, is divisible with respect to the identity of the specific “controlled
substance” involved in a violation of that statute.
FOR RESPONDENT: Tilman D. Jacobs, Esquire, Westminster, Colorado
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sunika Pawar, Assistant
Chief Counsel
BEFORE: Board Panel: HUNSUCKER and PETTY, Appellate Immigration Judges;
MORRIS, Temporary Appellate Immigration Judge.
HUNSUCKER, Appellate Immigration Judge:

In a decision dated January 16, 2020, an Immigration Judge terminated
the removal proceedings against the respondent. The Department of
Homeland Security (“DHS”) has appealed from that decision. The
respondent opposes the appeal. 1 The appeal will be sustained, the removal
proceedings will be reinstated, and the record will be remanded to the
Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a lawful permanent resident of the United States. 2 On
April 12, 2019, he was convicted of possession of a controlled substance in
violation of section 58-37-8(2)(a)(i) of the Utah Code, and he received a
suspended sentence of 365 days of incarceration for this offense. Based on
this conviction, the DHS charged him with removability under section
1

The respondent’s motion to accept a supplemental appellate brief is granted.
In the notice to appear, the DHS alleged that the respondent is a native and citizen of
the former Soviet Union. We take administrative notice that the Soviet Union no longer
exists. See 8 C.F.R. § 1003.1(d)(3)(iv) (2020) (providing that we may take administrative
notice of “commonly known facts”). However, the Immigration Judge terminated removal
proceedings before determining the respondent’s country of citizenship, and, in light of our
disposition, we need not reach this issue.
2

214

Cite as 28 I&N Dec. 214 (BIA 2021)

Interim Decision #4007

237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(B)(i) (2018), as an alien convicted of violating a law relating to
a controlled substance.
The Immigration Judge terminated the respondent’s removal proceedings
after concluding that the DHS had not established that his Utah offense was
a predicate for his removal under section 237(a)(2)(B)(i) of the Act. On
appeal, the DHS challenges the Immigration Judge’s conclusion and argues
that the respondent’s Utah drug conviction is one for a violation of a law
relating to a controlled substance under the Act. 3 Whether the respondent’s
State conviction renders him removable is a question of law, which we
review de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2020).

II. ANALYSIS
Section 237(a)(2)(B)(i) of the Act renders the respondent removable if he
has been convicted of a “violation of . . . any law or regulation of a State . . .
relating to a controlled substance,” as defined in the Federal Controlled
Substances Act (“CSA”). To determine whether the respondent’s Utah drug
offense renders him removable under this provision, we employ the
“categorical approach” to determine whether the elements of his Utah
offense match those of the “generic” Federal definition set forth at section
237(a)(2)(B)(i). Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). To
categorically fit within this generic definition, the respondent’s conviction
must have necessarily involved, as an element, a substance listed under the
CSA. See Mellouli v. Lynch, 135 S. Ct. 1980, 1991 (2015); Matter of P-B-B-,
28 I&N Dec. 43, 45–46 (BIA 2020).
However, if the respondent’s State statute of conviction is categorically
overbroad, we must consider whether it is divisible—that is, whether it “sets
out one or more elements of the offense in the alternative.” Descamps
v. United States, 570 U.S. 254, 257 (2013); see also Johnson v. Barr, 967
F.3d 1103, 1107 (10th Cir. 2020). If the statute is divisible, we may employ
a modified categorical approach, which permits us to examine the
respondent’s record of conviction to determine “what crime, with what
elements, [he] was convicted of.” Mathis v. United States, 136 S. Ct. 2243,
2249 (2016); see also Johnson, 967 F.3d at 1107.

3

We disagree with the respondent’s contention that the DHS waived its appellate
arguments regarding his removability under section 237(a)(2)(B)(i) by not raising these
arguments before the Immigration Judge. The DHS charged him with being removable
under this provision and submitted evidence in support of this charge. It properly
challenges on appeal the Immigration Judge’s determination that the respondent’s Utah
offense does not render him removable under section 237(a)(2)(B)(i) of the Act.

215

Cite as 28 I&N Dec. 214 (BIA 2021)

Interim Decision #4007

At the time of the respondent’s conviction, section 58-37-8(2)(a) of the
Utah Code provided, in relevant part, that
It is unlawful:
(i) for any person knowingly and intentionally to possess or use a controlled
substance analog or a controlled substance . . . .

Sections 58-37-8(2)(b) and (d), in turn, provided that
(b) Any person convicted of violating Subsection (2)(a)(i) with respect to:
(i) marijuana, if the amount is 100 pounds or more, is guilty of a second degree
felony; or
(ii) a substance classified in Schedule I or II, or a controlled substance analog, is
guilty of a class A misdemeanor on a first or second conviction, and on a third or
subsequent conviction is guilty of a third degree felony.
....
(d) Any person who violates Subsection (2)(a)(i) with respect to all other controlled
substances not included in Subsection (2)(b)(i) or (ii), including a substance listed in
Section 58-37-4.2, or marijuana, is guilty of a class B misdemeanor. . . .

(Emphasis added.) Because the respondent was convicted of a class
A misdemeanor, the Immigration Judge found that he was convicted of
possessing a schedule I or II controlled substance, or analog, under section
58-37-8(2)(b)(ii).
It is undisputed that the respondent’s conviction for a class
A misdemeanor under sections 58-37-8(2)(a)(i) and (b)(ii) of the Utah Code
does not categorically fit within the definition of a controlled substance
violation under section 237(a)(2)(B)(i) of the Act because, at all relevant
times, schedules I and II of the Utah controlled substances schedules
criminalized the possession of substances that are not included in the CSA.
See Johnson, 967 F.3d at 1106–07; Matter of P-B-B-, 28 I&N Dec. at 46. It
is additionally undisputed that the statute of conviction is divisible, in part,
because sections 58-37-8(2)(b) and (d) of the Utah Code, the relevant penalty
provisions of the statute, mete out different punishments for violating section
58-37-8(2)(a)(i), depending on the circumstances underlying a particular
violation. See Mathis, 136 S. Ct. at 2256 (“If statutory alternatives carry
different punishments, then . . . they must be elements.”); Matter of P-B-B-,
28 I&N Dec. at 47.
However, the parties disagree as to whether the Utah statute is divisible
with respect to the identity of the particular controlled substance possessed
in a violation of section 58-37-8(2)(a)(i). In other words, the issue in this
case is whether the identity of the specific controlled substance involved in
a violation of that provision is an “element” of that offense or merely an
alternative “means” of committing the crime. Mathis, 136 S. Ct. at 2253
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(distinguishing between statutory “elements” and the “alternative means of
fulfilling” one or more of those elements).
“Elements ‘are the constituent parts of a crime’s legal definition’ that ‘the
prosecution must prove’ and ‘what the jury must find beyond a reasonable
doubt to convict the defendant.’” Johnson, 967 F.3d at 1107 (quoting
Mathis, 136 S. Ct. at 2248). “Means,” by contrast, merely describe the
various ways by which a defendant may “satisfy[] a single element.” Id.
(quoting Mathis, 136 S. Ct. at 2249, 2251).
The Immigration Judge found, and the respondent argues, that to establish
a class A misdemeanor conviction under sections 58-37-8(2)(a)(i) and (b)(ii),
the prosecution must prove only, and a jury need only find, that a defendant
possessed a “controlled substance” under “Schedule I or II” of Utah’s
controlled substances schedules, or “a controlled substance analog” under
these schedules—regardless of the specific substance possessed. In the
Immigration Judge’s view, these alternative schedules are alternative
elements that render the statute divisible, but the identity of the specific
substance listed under these schedules is merely an alternative “means” of
satisfying these elements.
At the time of the respondent’s conviction, schedule I of Utah’s
controlled substances schedules listed the substance etizolam, but the CSA
did not. Compare Utah Code Ann. § 58-37-4(2)(a)(i)(FF) (West 2019), with
21 C.F.R. § 1308.11 (2019). Accordingly, the Immigration Judge found that
the respondent’s Utah statute of conviction was overbroad and, because it
was indivisible with respect to the identity of the specific substance
underlying his offense, his conviction under this statute did not render him
removable under section 237(a)(2)(B)(i) of the Act.
In support of her conclusion, the Immigration Judge cited Arellano
v. Barr, 784 F. App’x 609 (10th Cir. 2019). In that unpublished case, the
court held that an alien’s conviction for possession of a controlled substance
listed in schedule V of Colorado’s controlled substances schedules was a
conviction for an offense relating to a controlled substance under section
212(a)(2)(A)(i)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2018). 4
Because the alien’s statute of conviction provided different punishments
depending on what schedule the drug possessed was listed in, the court
concluded that the five alternative schedules under Colorado law were
alternative elements that rendered the statute divisible. See id. at 613
(concluding that “the schedule the substance is listed in—not the substance
itself—ultimately drives a court’s determination of . . . the appropriate
punishment. In other words, the schedule is the element the jury necessarily
has to find . . . .”). Nevertheless, since all of the substances listed in
4

For our purposes, sections 212(a)(2)(A)(i)(II) and 237(a)(2)(B)(i) of the Act are
materially identical. See Matter of Voss, 28 I&N Dec. 107, 108 n.3 (BIA 2020).

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schedule V of Colorado’s controlled substances schedules were listed under
the CSA, the court concluded that the alien’s offense was a controlled
substance violation under the Act.
After the Immigration Judge rendered her decision, the United States
Court of Appeals for the Tenth Circuit, in whose jurisdiction this case arises,
favorably cited Arellano in a precedential decision. See Johnson, 967 F.3d
at 1109 (finding Arellano to be persuasive authority). In that decision, the
court concluded that an alien’s conviction for possession of a schedule II
controlled substance under a separate Colorado drug statute was not a
conviction for a controlled substance violation under section 237(a)(2)(B)(i)
of the Act. The court reached this conclusion after analyzing the text of the
Colorado statute as well as relevant State jury instructions and case law and
determined that “the schedule of the controlled substance is an element,
while the specific identity of the ‘substance listed in schedule . . . II’ is a
‘means’ to satisfy that element.” Id. at 1108; see also id. at 1107–10.
Because schedule II of Colorado’s controlled substances schedules listed a
controlled substance that was not listed in the CSA, the court held that the
alien’s conviction was not a predicate for his removal.
Here, we reach a different conclusion than the Immigration Judge. We
acknowledge the above case law from the Tenth Circuit interpreting
Colorado drug laws. However, after reviewing the language of section
58-37-8(2)(a)(i) of the Utah Code, relevant Utah jury instructions and case
law, as well as the respondent’s record of conviction, we conclude that the
identity of the specific controlled substance underlying a violation of section
58-37-8(2)(a)(i) is an “element” of that statute, rather than a mere “means”
of violating it. See id. at 1107–10 (looking to these resources in determining
the elements of a statute); Matter of P-B-B-, 28 I&N Dec. at 47–49
(examining these same resources and the alien’s record of conviction in
discerning the elements of a statute).
A. Statutory Language
The plain language of section 58-37-8(2)(a)(i) of the Utah Code metes
out different punishments depending on the circumstances underlying a
violation, including the identity of the controlled substance possessed. See
State v. Robinson, 254 P.3d 183, 189–90 (Utah 2011) (concluding that the
Utah Legislature intended to impose different penalties for violations of
section 58-37-8, depending on the type of controlled substance involved).
For example, an individual convicted of possessing marijuana, a
schedule I controlled substance under Utah law, 5 may receive different
5
See Utah Code Ann. § 58-37-4(2)(a)(iii)(S) (defining marijuana as a schedule I
controlled substance).

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punishments under this statute, depending on the amount of marijuana
possessed and the individual’s prior criminal history. If that individual had
been convicted of possessing 100 pounds or more of marijuana, his
conviction would be treated as a second degree felony under section
58-37-8(2)(b)(i) of the Utah Code. However, if this individual was convicted
of possessing less than that amount of marijuana, and it was his third or
subsequent offense, his conviction would be treated as a third degree felony.
See Utah Code Ann. § 58-37-8(2)(b)(ii). But if it was only his first or second
conviction, it would be treated as a class A misdemeanor. See id.; cf. State
v. Martinez-Castellanos, 440 P.3d 896, 905–06 (Utah Ct. App. 2019)
(vacating a third degree felony sentence for possession of hydrocodone under
section 58-37-8 and remanding for resentencing the offense as a class
A misdemeanor under section 58-37-8(2)(b)(ii)). Separately, we also note
that, under section 58-37-8(2)(d) of the Utah Code, a person is guilty of a
class B misdemeanor if he possessed any other controlled substance not
included under subsections (2)(b)(i) or (ii), including a substance listed in
section 58-37-4.2 (which, at the time of the respondent’s conviction listed
78 different substances), or marijuana.
Thus, the plain language of section 58-37-8 reflects that penalties for drug
offenses under this statute are not based simply on the schedule of the
controlled substance involved in an offense. Rather, Utah must prove, and a
jury must make findings regarding, a defendant’s criminal history and the
identity and the amount of the controlled substance possessed to determine
whether he was convicted of a second degree felony, third degree felony, a
class A misdemeanor, or a class B misdemeanor. We therefore conclude that
an element of section 58-37-8 is the identity of the specific controlled
substance involved in a violation of that statute. See Mathis, 136 S. Ct.
at 2256.
B. Jury Instructions
In addition to the statutory language, we rely on relevant Utah jury
instructions to determine whether the statute is divisible with respect to the
identity of the controlled substance involved in the respondent’s offense. See
id. at 2249 (providing that we may look to jury instructions to determine the
elements of a statute). The jury instructions for the respondent’s statute of
conviction indicate that the specific substance involved is an element of the
offense. These instructions provide, in relevant part:
(DEFENDANT’S NAME) is charged [in Count ___] with committing Possession of
a Controlled Substance [on or about (DATE)]. You cannot convict [him] [her] of
this offense unless, based on the evidence, you find beyond a reasonable doubt each
of the following elements:

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1. (DEFENDANT’S NAME);
2. Intentionally and knowingly;
3. Possessed (NAME OF CONTROLLED SUBSTANCE/COUNTERFEIT
SUBSTANCE), a schedule [I] [II] [III] [IV] [V] [controlled substance] [counterfeit
substance] [; and]
4. [The defense of ______ does not apply].

Model Utah Jury Instructions, Second Edition, CR1203 (emphasis added).
In State v. Mackin, No. 061401021, 2008 WL 4411683, at Instruction 4
(Utah Dist. Ct. 2008) (Jury Instruction), a Utah District Court replaced the
phrase “NAME OF CONTROLLED SUBTANCE/COUTERFEIT
SUBSTANCE” in these instructions with the name of the specific substance
underlying the charge—namely, “Methamphetamine, a Schedule II
controlled substance”—and identified this specific substance as one of the
“essential elements” that the jury had to “find beyond a reasonable doubt.” 6
Cf. State v. Nelson, 253 P.3d 1094, 1095 (Utah Ct. App. 2011) (specifying in
jury instructions relating to a charge of possession with intent to distribute
that the underlying substance was “Cocaine, a Schedule II controlled
substance”). Because these instructions require a jury to find the specific
substance underlying a violation of section 58-37-8(2)(a)(i) beyond a
reasonable doubt, they differ from the jury instructions for the Colorado
statute at issue in Johnson, 967 F.3d at 1109, which required only that the
jury find “(1) [t]hat the defendant, (2) in the State of Colorado, at or about
the date and place charged, (3) knowingly, (4) possessed a controlled
substance.”
C. Utah Case Law
Although we have found no Utah court opinion that directly answers
whether the identity of a particular controlled substance is an element or a
means, we find it significant that Utah “has prosecuted as separate offenses
a single act” involving the possession of “multiple controlled substances.”
Matter of Gonzalez Lemus, 27 I&N Dec. 612, 614 (BIA 2019). In State
6

The jury instructions in Mackin indicate that the jury may be instructed a second time
about the identity and schedule of the controlled substance possessed after they have found
all of the elements of the crime of possession of a controlled substance. See Mackin, 2008
WL 4411683, at Instruction 6 (reiterating under a subsequent instruction that
“Methamphetamine is a Schedule II controlled substance”). However, this additional
instruction does not detract from the fact that a jury must find beyond a reasonable doubt
the identity of the specific drug possessed, and its schedule, in order to sustain a conviction
under section 58-37-8(2)(a)(i). We are therefore not persuaded by the respondent’s
argument that this additional instruction renders the identity of the substance possessed a
mere “means” of violating the statute, rather than an “element” of the crime.

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v. Karren, 438 P.3d 18, 19–21 (Utah Ct. App. 2018), the Utah Court of
Appeals upheld a defendant’s conviction for two counts of possession of a
controlled substance under section 58-37-8(2)(a)(i) where he was arrested
after methamphetamine and marijuana were discovered in his backpack.
Similarly, in State v. Ashcraft, 349 P.3d 664, 667 (Utah 2015), the Supreme
Court of Utah upheld a conviction for six counts of possession with intent to
distribute, where each count related to a separate controlled substance. 7
These cases indicate that “‘the elements of proof required as to’ an offense
involving one drug ‘are not the same as those essential’ to proving an offense
involving a different drug.” Matter of P-B-B-, 28 I&N Dec. at 48 (quoting
Matter of Gonzalez Lemus, 27 I&N Dec. at 614–15). The respondent has not
explained how, given the prohibition against double jeopardy, a defendant
could be convicted of multiple counts of possession of a controlled substance
where the defendant committed a single act of possession involving separate
substances, if the identity of the specific controlled substance possessed was
simply an alternative means of committing the offense, rather than an
element of section 58-37-8(2)(a)(i). See id. at 48–49.
D. Record of Conviction
Finally, under Mathis, 136 S. Ct. at 2256–57, we may “peek” at the
respondent’s record of conviction “for the sole and limited purpose of
determining whether [the specific controlled substance is an] element[] of
the offense.” The respondent’s criminal information charged him with
violating section 58-37-8(2)(a)(i) for “knowingly and intentionally
possess[ing] or us[ing] a controlled substance analog or a controlled
substance, to-wit: methamphetamine, a Schedule II controlled substance.” 8
The fact that the indictment “referenc[es] one alternative [controlled
substance] to the exclusion of all others,” supports our conclusion that the
identity of the controlled substance is an element of section 58-37-8(2)(a)(i).
Id. at 2257 (stating that “an indictment . . . could indicate, by referencing one
alternative term to the exclusion of all others, that the statute contains a list
of elements, each one of which goes toward a separate crime”); see also
Matter of P-B-B-, 28 I&N Dec. at 49–50. The respondent’s guilty plea
likewise states that one of the “specific elements” of his offense was that he
7

Although Ashcraft dealt with a different controlled substance provision, namely, section
58-37-8(1)(a)(iii) of the Utah Code, we find it instructive because, like the respondent’s
statute of conviction, section 58-37-8(1) metes out different punishments depending on,
among other things, a defendant’s criminal history and the identity of the controlled
substance possessed with the intent to distribute. See Utah Code Ann. § 58-37-8(1)(b).
8
We may take administrative notice of the contents of the respondent’s record of
conviction. See, e.g., Matter of P-B-B-, 28 I&N Dec. at 49 n.8.

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“possessed methamphetamine.” See Mathis, 136 S. Ct. at 2249, 2258
(providing that we may rely on a plea agreement to determine a statute’s
elements). Accordingly, the respondent’s record of conviction, specifically
the relevant criminal information and guilty plea, reflects that the identity of
the specific controlled substance possessed in violation of section
58-37-8(2)(a)(i) is an element of that crime.

III. CONCLUSION
The statute is therefore divisible with respect to the identity of the specific
controlled substance the respondent possessed, and we may apply the
modified categorical approach. See Matter of P-B-B-, 28 I&N Dec. at 50.
As noted, the respondent’s record of conviction establishes that he was
convicted of possessing methamphetamine, a federally controlled substance
under 21 U.S.C. § 812, schedule III(a)(3) (2018). Thus, the respondent’s
conviction for possession of a controlled substance under section
58-37-8(2)(a)(i) renders him removable as charged under section
237(a)(2)(B)(i) of the Act. The Immigration Judge therefore erred when she
terminated his removal proceedings. Accordingly, the DHS’s appeal is
sustained, the removal proceedings are reinstated, and the record is remanded
to give the respondent an opportunity to apply for any relief for which he
may be eligible.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.

222


Interim Decision #2417

MATTER OF ROSARIO
In Deportation Proceedings
A-30143074
Decided by Board August 4, 1975
Conviction of "first degree manslaughter" (homicidio voluntario) in violation of section,635
of Title 33 of the Laws of Puerto Rico, is conviction of a crime involving moral turpitude.
CHARGE:

Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)1—Convicted of crime involving moral turpitude committed within 5 years after
entry—First Degree Manslaughter
ON BEHALF OF FESPONDENT:

Richard Ramos-Algarin, Esquire
Box 7037
Barrio Obrero
Santurce, Puerto Rico 00916

This is an appeal from a decision of an immigration judge dated April
3, 1974 finding the respondent deportable under section 241(a)(4) of the
Immigration and Nationality Act and ordering his deportation to the
Dominican Republic. The appeal will be dismissed.
The respondent is a 58-year-old male alien who is a native and citizen
of the Dominican Republic. He was admitted to the United States as a
lawful permanent resident on November 27, 1970. On January 17, 1973,

the respondent was convicted of "First Degree Manslaughter"
(HomicidioVohattario) in the Superior Court, San Juan, Puerto Rico.
Section 241(a)(4) of the Act provides in part that an alien who has
been convicted of a crime involving moral turpitude committed within
five years after entry and sentenced to confinement for a year or more is
deportable. The crime for which the respondent was convicted was
committed on October 30, 1972 which was within five years of his entry.

On March 29, 1973 he was sentenced to confinement in prison for five
years, his sentence was suspended and he was placed on probation.
The only issue on this appeal is whether or not the crime for which the
respondent was convicted involves moral turpitude. Section 635 of Title
33 of the Laws of Puerto Rico provides:
"Manslaughter in the unlawful killing of a human being without malice. It is two kinds:
1. Voluntary—u3on sudden quarrel or heat or passion. 2. Involuntary— in the commis-

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Interim Decision #2417
sion of an unlawful act, not amounting to a felony, or in the commission of a lawful act
which might produce death, in a unlawful manner, or without due caution or circumspection."

The indictment, the minutes of the trial and the sentence, all part of
the record of conviction refer to the crime here involved as "First
Degree Manslaughter" in English translation. Counsel for the respondent indicates that manslaughter is not divided into degrees under
Puerto Rican law, but is classified as voluntary or involuntary. Counsel
conceded that the respondent was convicted of voluntary manslaughter
but argues that voluntary manslaughter is not a crime involving moral
turpitude became it is an unlawful killing without malice.
This contention is without merit. It is well settled that voluntary
manslaughter—which, under Puerto Rican law is an intentional killing
of a human beings is a crime involving moral turpitude. Matter of Lopez,
13 I. & N. Dec. 725 (BIA 1971); Matter of B–, 4 I. & N. Dec. 493 (BIA
1951); cf. Matter of Glvicnaim, 15 L & N. Dec. 269 (BIA 1975).
The decision of the immigration judge was correct. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.

1 People V. Figueroa, 80 P.R.R. 317, 321(1958); el. People v. Cruz, 49 P.R.R. 637, 641
(1936); People v. Cortex, 42 P.R.R. 880, 887 (1981); see Aso Peopio v. Ortiz, 86 P.R.R. 431

(1962)

417


Interim Decision #2650

MATTER OF DAVIS
In Exclusion Proceedings
A-7449011
Decided by Board May 24, 1978
(1) In cases involving loss of American citizenship, the law and the facts are to be
construed as far as reasonably possible in favor of the claimant.
(2) Under the provisions of section 3t9(c) of the Immigration and Nationality Act, the
burden is on the one asserting that a loss of citizenship occurred to prove that claim by a
preponderance of the evidence.
(3) A voluntary renunciation of nationality in accordance with section 401(f) of the Nationality Act of 1940 (coati= 549(a)(G), Immigration and Nationality Act), woo effective
to accomplish expatriation even if the former citizen did not acquire another nationality,
and became stateless.
(4) An Oath of Renunciation pursuant to section 401(f) of the Nationality Act of 1940
accomplished expatriation where the 2e was a specific intent tv renuuuce all allegiance to
the United States and to become a "world" citizen.
(5) Since the United States is not a signatory to the United Nations Convention on the
Reduction of Statelessness, U.N. Dec. A/CONF. 9/15 (August 29, 1961), its provisions
have no applicability to loss of United States citizenship. Even if this were not the case,
the Convention provides for voluntary renunciation of citizenship with resulting
statelessness "where the national _ . gives definite evidence of his determination to
repudiate his allegiance."
(6) One who has lost United States citizenship by a voluntary oath of renunciation is no
longer a national of the United States since a renunciation of citizenship embraces a
renunciation of American nationality- as well.
(7) Former citizen who executed an Oath of Renunciation of United States citizenship in
1948 to become a citizen of the world, who left the United States in 1961 and lived
abroad for many years after his ree retry permit expired, remarried in France, established a business, had three children born in that country, and entered the United
States as a visitor in 1975, 1976, and 1977, held to have abandoned his status as a lawful
permanent resident alien.
EXCLUDABLE:

Act of 1952—Section 212(a)(14) [8 U.S.C. 1182(a)(14)]—No valid labor
certification
Act of 1952—Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant, no
visa
Act of 1952—Section 212(a)(26) [8 U.S. C. 1182(a)(26))—Not in possession
of a passport and nonimmigrant visa to enter the United
States for a temporary visit

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Interim Decision #2650
ON BEHALF OF SERVICE:
ON BEHALF OF APPLICANT:
George Indelicate
David L. Carliner, Esquire
Appellate Trial Attorney
931 Investment Building
1511 K Street, N. W.
Washington, D. C. 20005
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated May 17, 1977, an immigration judge found the
applicant excludable under sections 212(a)(14), 212(a)(20), and 212(a)(26)
of the Immigration and Nationality Act, 8 U. S.C. 1182(0(14), (0(20), and
(a)(26) and ordered him deported from the United States. The applicant
has appealed from that decision. The appeal • will be dismssed.
The applicant for admission, Garry Davis, was born at Bar Harbor,
Maine, in 1921. His father, Meyer Davis, was a famous American orchestra leader. Davis served in the United States Armed Forces during
the Second World War as a bomber pilot. On May 25, 1948, he appeared
at the United States Embassy in Paris and signed a "formal renunciation of nationality" in accordance with the provisions of section 401(f) of
the Nationality Act of 1940, 8 U.S.C. 801(f), 54 Stat. 1169. 1
Attached to the Oath of Renunciation at Davis'. request, is. a "Statement of Beliefs." This document contains Davis' reasons for signing the
Oath of Renunciation. 2 Davis thus launched his career as the selfproclaimed "first citizen of the world."
' The Oath of Renunciation contained the following pertinent language:
I desire to make a formal renunciation of my American nationality, as provided by
Section 401(f) of the Nationality Act of 1940, and pursuant thereto I hereby absolutely
and entirely renounce my nationality in the United States and all rights and privileges
thereunto pertaining and abjure all allegiance and fidelity to the United States of
America.
I In this document, Davis stated:
In the abs-ence of an international government, our world, politically, is a raw, naked
anarchy. Two interglobal wars have shown that as long as two or more powerful
sovereign nation-states regard their own national law as supreme and sufficient to
handle affairs between nations, there can be no order on a planetary level. This
international anarchy is moving us swiftly toward a final war.
I no longer find it compatible with my inner convictions to contribute to this
anarchy—and thus be a party to the inevitable suicide of our civilization—by remaining
solely loyal to one of these sovereign nation-states. I must extend the little sovereignty
I possess, as a member of the world community, to the whole community, and to the
international vacuum of its government—a vacuum into which the rest of the world
must be drawn if it would survive, for therein lies the only alternative to this final war.
I should like to consider myself a citizen of the world.
All history has shown—and especially American history— that peace is notmerelY
the absence of war, but the presence of a superstructure of law and order, in short,
government, over non-integrated political units of equal sovereignty. The world today
is split by seventy to eighty of these sovereign units. Therefore, without the immediate
creation of this superstructure of world law and order, each unit must continue the
idiotic, suicidal, unchristian and undemocratic anarchy of Nationalism, and the resulting

515

Interim Decision #2650
At the exclusion hearing- below, Davis related how he declared a
"world government" on September 4, 1953, while in Maine, "after having received a mandate of upwards of 675,000 individuals from all over
the world who registered at the international registry [of] world citizens
in Paris. The world government came about five years after my renunciation and was mandated by a registration of 750,000 people who declared themselves as world citizens from all over the world, more than
100 countries at the international registry of world citizens in Paris,
which I also founded." (Tr. at p. 37)
Davis has frequently travelled across international borders with a
passport issued by his "world government," which he calls the World
Service Authority. This 'organization is based in Basel, Switzerland.
Davis' passport lists his occupation as "world coordinator." His previous
occupation was that of an actor.
Since 1948, Davis has travelled very extensively. He has made
numerous trips back to the United States and has lived here off and on
for considerable periods of time. From the record it is not always clear
in what status he reentered this country.
Davis obtained an immigrant visa on March 10, 1950, and reentered
the United States on April 8, 1950, after his sojourn in France. In his
application for the visa, Davis listed himself as "stateless" in the space
reserved for "Nationality." He remained in the United States until July
1950 and then returned to France. He encountered trouble with the
Parisian authorities because he lacked proper papers. He then made his
way to Haiti. There, 'he obtained another American immigrant visa on
September 13, 1950, and reentered the United States a few days later.
The immigrant visa application again lists his nationality as stateless.
Davis lived in New York until 1953. He then went to London, where he
had an acting engagement. He was deported back to the United States,
against his will, when his vrork permit expired. He remained in New
York from 1954 to 1956.
Sometime in 1956 he went to Bangalore, India. He came back to the
United States in 1957_ The record does not show in what status he
reentered. He left the United States again in 1957, this time for Europe.
rn March 1958, he obtained yet another American immigrant visa from
the American consulate general in Naples, Italy. Again he listed his
nationality as "stateless." Be reentered the United States on April 22,
1958, as a lawful permanent resident. He left for Europe in 1960, came
atomic-biological war will then level all political, economic, religious, and personal
differences by death.
The real question today seems to be: World Citizenship or world war?
One leads to peace. The other leads to oblivion.

And the choice is ours.

516

Interim Decision #2650
back briefly in 1961, and left again for. Europe early in 1961. At that time
he was issued a reentry permit, valid until February 8, 1962.

Davis next reentered the United States "in the late sixties." "I was in
France, married, in business, etc. I may have come back for family
reasons, I can't recall at this moment_" (Tr. at p. 17) The record does not
indicate in what status Davis returned, or when "in the late sixties."
The record does not indicate how long he stayed in the United States at
that time, but the stay was brief. (Tr. at p. 43) The next tithe that he
applied for admission to the United States for more than a brief visit
was around June 1975; he sought to enter without any documents

Davis testified at the
exclusion hearing which is before us for review that he was granted a
waiver of the documentary requirements of the immigration law in
except his World Service Authority passport.

connection with the June 1975 entry. However,, he did not know
whether he had been admitted as an immigrant or a nonimmigrant
visitor. The possibility also exists that he was paroled into the United
States under the provisions of section 212(d)(5) of the Immigration and
Nationality Act, 8 U.S.C. 1182(d)(5).

Davis left the United States for France around September 1975. He
carne back to New York in April 1976, for his father's funeral. Again, he

had only his World Service Authority passport; he was again granted a
waiver of documents. Again the record does not show in what status he

was admitted' He then left the country, presumably for Europe, and
returned on June 19, 1976: He applied for admission as a returning
resident, that is, as "an immigrant, lawfully admitted for permanent
residence, who is returning from a temporary visit abroad." Section
101(a)(27)(B) of the Act, 8 U.S.C. 1101(a)(27)(B). He was paroled into
the United States for-an exclusion hearing. Davis was charged with
being an immigrant not in possession of a valid, unexpired immigrant
visa. Section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20). The exclusion

hearing was rescheduled several times and had still not been held'by the
time Davis left for France on November 3, 1976.
•
Davis next returned to the United States on January BO, 1977. This
tin-ie he was in possession of a valid nonimmigrant visitor's visa. He was
authorized to stay until April 30, 1977. He left for Europe on April 15..
He returned on May 13, 1977, without any documents except his World
Service Authority passport.
_
Davis' sworn statement was taken by an immigration officer at Dulles
Airport. He was asked of what country he is a citizen. He replied:
"None. I have no nationality. I renounced my nationality 1948 in Paris,
Davis testified: "I was not seeking entry as a returning resident. I mean my reasons
for entering were not even questioned. I was not asked why I was coming back,_or why I
was here. The immigration officials were waiting for me as I came out of the line at the
airport." (Tr. at p. 26)

517

interim Decision #2650

France." (Ex. 5) The end of the recorded interview reveals how Davis
intended to enter the United States:
Davis: . . . One question you forgot. On what basis do I desire to enter the United

States?
Officer: What is the basis?
Davis: The World Service Authority passport is mandated by the Universal Declaration of Human Rights, article 13, section 2. I enclose a copy. Therefore, on the basis of

this article I am returning to my native country. 4
Article 13, sectiein 2, states: "Everyone has the right to leave any

country, including his own, and to return to his country." Davis was
paroled into the United States for an exclusion hearing, which was held
in Washington, D. C., on May 17, 1977.
The Immigration and Naturalization Service charged that Davis was
excludable on two grounds: that he was either an immigrant without a
visa, section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), or a nonimmigrant without a visa., section 212(a)(26) of the Act, 8 U.S.C. 1182(a)(26);
and that he was seeking to enter the United States for the purpose of
performing skilled ox unskilled labor without having acquired the necessary labor certification, section 212(a)(14) of the Act, 8 U.S.C.
1182(a)(14).
As a defense to these charges, Davis asserted, at various points of the
exclusion hearing, that he is admissible as (1) a national of the United
States; (2) a lawful permanent resident alien; and (3) a native of the
United States, who, under the Ninth and Tenth Amendment, retains
the right to live in his native country. Davis did not claim to be a United
States citizen. Counsel conceded that he had effectively renounced his
citizenship at the United States Embassy in Paris. (Tr. at pp. 27, 38-39,
47)
At the hearing, it was brought out that Davis is seeking to enter the
United States on a permanent basis. (Tr. at p. 42) Indeed, his various
defenses all show this. Davis conceded that he did not have an alien
registration card, reentry permit, or any document other than his World
S ervice Authority passport. (Tr. at pp. 47-48) Davis' purpose in coming
to the United States was to take up his duties as chairman and president
of the World Service Authority District 3, a nonprofit corporation in the
District of Columbia. Davis' testimony indicated that he had maintained

a place of residence in Washington, D.C., for some time prior to his most
recent return to the United States.
Davis has several close relatives who are United States citizens.
These include his mother, a brother, two sisters, and a 26-ye ar-old
'The document Davis refers to is the Universal Declaration of Human Rights adopted
2nd proclaimed on December 10, 1948, by the General Assembly of the United Nations.

518

Interim Decision #2650
daughter. He testified that he has three younger children who are
French citizens. (Tr. at p. 33) Davis never became a French citizen or a
citizen of any other country. He was divorced in February, 1977.
At the exclusion hearing, Davis was asked whether he had ever
sought to regain his United States citizenship. He stated that he had
asked to be "reinstated" as a United States citizen in 1950, but that his
request was denied. (Tr. at p. 35) The Service trial attorney then
explained the provisions of section 329 of the Immigration and Nationality Act, 8 U.S.C. 1440, and asked Davis if he wished to apply for
citizenship as a person who served honorably in an active duty status in
the Armed Forces of the United States during the Second World War.
Under section 329, no period of residence or physical presence in, the
United States is required; nor need the applicant have been lawfully
admitted to the United States for permanent residence if he enlisted or
was inducted while in the United States. 5 Davis stated that he did not
wish to apply for citizenship under section 329. He did not offer any
explanation for this decision. Presumably, he still objected to the idea of
citizenship in a nation-state.
The Act defines "national of the United States" as "(A) a citizen of the
United States, or (B) a person who, though not a citizen of the United
States, owes permanent allegiance to the United States." Section
101(a)(22), 8 U.S.C. 1101(a)(22). In support of his claim to be a "national
of the United States," Davis testified that when he renounced his
citizenship "it was in no way a disavow[all of my loyalty or my love for
my native country. In fact quite the contrary." (Tr. at p. 39) Davis was
then asked if he regarded himself as owing allegiance to the United
States Government. He answered: 'Well insofar as my first allegiance is
to a higher loyalty of -whole in which the part can be protected, yes. And
with that sense, my allegiance is to all the parts." (Tr. at p. 40) Davis
was asked if he regarded himself as owing allegiance to the laws and the
Constitution of the United States. He answered as follows: "Well,
insofar as these laws equate with human rights and the normal, the
commonalty of law by which people are governed, yes of course." ('Tr. at
pp. 40-41)
With regard to his claim to be a permanent resident of the United
States, the following dialogue between Davis and his attorney at the
exclusion hearing is pertinent:
-

Q. What country did you regard as the country of your permanent residence [in the
period after 1961]?
5 The Service trial attorney stated that Davis was eligible for citizenship under section
329. We note the reference in section 329 to 'any person, who, while an alien or a
noncitizen national of the United States, has served honorably. . . ." Davis was, of course, a

United States citizen when he nerved. However, we do not meet. the issue of his eligibility
for citizenship.

519

liecamozi

40011

A. Being stateless, whatever country I was in; I limited my residence by definition. So,
I always had to renew continuously my residence papers in any country in which I
was. As far as I am concern[ed] my native land, I have said is still America, the
United States of America, and always will be, I can't deny that.
Q. D[id] you regard the United States then as the country of your permanent residence
while you were travelling in other countries?
A. In principle, yes. Although I did nut establish

a residence here.

In subsequent testimony, Davis remarked that he was always received by his family when he returned to the United States. He freely
admitted, however, that when he was not in the country he did not

maintain an address, residence, or assets, such as furniture or clothing
here.
The immigration judge ordered Davis excluded and deported "for the
reasons set forth by the Government." Davis appealed the immigration
judge's decision to this Board.
On appeal, Davis, through counsel, argues for the first time that he is
a citizen of the United States. He argues, in the alternative, that he is
admissible as a "national of the United States." Nowhere in the brief or
at oral argument did counsel argue that Davis is, in the alternative, a
lawful permanent resident of the United States. However, we will
consider that possibility since Davis did make such a claim at the
exclusion hearing below.
I

Counsel's entire brief and nearly all of his oral argument are devoted
to the proposition that Davis is a United States citizen. We start from
the premise that in cases involving the loss of nationality, the law and
the facts are to be construed as far as reasonably possible in favor of the
claimant. Nishikawa v. Dulles, 356 U.S. 129, 134 (1958); Schneiderman,
v. United States, 320 U.S. 118, 122 (1943). Nevertheless, we do not find
counsel's arguments persuasive.
A.. The first argument is that the "Statement of Beliefs" attached to
Davis' 1948 Oath of Renunciation shows that "he had no intention of
becoming an alien in his relationship to the United States, that his sole
intention was to embrace the citizenship of a larger authority, namely a
World government, and to have a concomitant allegiance. . . [T]here is
nothing in stating allegiance to a world government . . . that suggests
any implication that his allegiance thereto would necessarily conflict

With his allegiance to the United States Government." (Tr. of oral
ax-g-ument at p. 3)
Had Davis merely declared his "world government" and carried out
his activities as its head, we think that counsel's argument might have
interit. However, the facts speak for themselves. Davis unequivocally
renounced his citizenship and "abjured all allegiance and fidelity to the
520

Interim Decision #2650
United States of America." See footnote 1, supra. He evidently believed that allegiance to world government did conflict with continued
allegiance to the United States. He freely renounced his allegiance for
precisely that reason. At all times after he signed the Oath of Renunciation, Davis referred to himself as a stateless person. We think that those
statements, as well as the words of the Oath of Renunciation and his
"Statement of Beliefs" clearly show that Davis had a specific subjective
intent to renounce all allegiance to the United States. 6 At the exclusion
hearing itself, Davis refused to apply for United States citizenship
under section 329 of the Act, while equivocally maintaining that he had
some vague sort of residual loyalty to his native country.
Counsel conceded that "Et)here is no issue here as to whether Mr.
Davis did what he did voluntarily, there is no duress when he appeared
before the American consul. He is not claiming there was, that he was
incapacitated in any way, that the conduct was not rational, but to the
contrary he believes it was the most rational conduct he could engage
in." (Tr. of oral argument at p. 6)
Counsel urges that in weighing his argument that the renunciation
was ambiguous, the Government should have to show by clear, convincing, and unequivocal evidence that the renunciation was intended to
sever Davis' allegiance to the United States. He argues that in 1961,
when Congress changed the burden of proof required to establish loss of
United States citizenship to that of a preponderance of the evidence, it
meant only to affect the standard required for proving voluntariness.'

Since voluntariness is not in issue here, counsel argues that the older
standard should apply. He also argues that it is anomalous to have a
preponderance of the evidence rule apply here, where United States
citizenship is at stake, while the Government's burden of proof in a
proceeding to establish the deportability of an alien is one of clear,
convincing, and unequivocal evidence. Woodby v. INS, 385 U.S. 276
(166).
Section 349(c) of the Immigration and Nationality Act, 8 U.S.C.
1481(e), as amended by section 19 of the Act of September 26, 1961, P.L.
87-301, 75 Stat. 656, speaks for itself. 8 It may be anomalous, but it is the
6

We assume, without deciding, that a specific subjective intent to renounce United

States citizenship Is required for expatriation. See King v. Rogers, 463 F'.211 1188, 1139 (0

Cir. 1972); Gordon, "The Power of Congress to Terminate United States Citizenship--A
Continuing Constitutional Debate," 4 Conn. L. Rev. 611, 628-629 (1972).
7 Counsel cites certain language in House Report 1086 (1961), and argues that Congress
was motivated by dissatisfaction with the Supreme Court's decision in Niskikam v.
Dulles, 356 U.S. 129 (1958), which imposed upon the Government the burden of establishing the voluntariness of expatriating act by clear, convincing, and unequivocal evidence.
Section 349(e) provides:

Whenever the luau of United States nationality is put in issue in any action or

proceeding commenced on or after the enactment of this subsection under, or by virture

521

111Lel ILL i

z•v.v

law which we must apply. 9 It clearly establishes a burden of proof of
preponderance of the evidence, except upon the issue of voluntariness.
There, the burden is on the person claiming United States citizenship to
show that his act of expatriation was not performed voluntarily. See
King v.Rogers,supra, at 1189. The discussion is academic in any event,
because even if the Government's burden were one of clear, convincing,
and unequivocal evidence, we would find that the Government had met
that burden here.
B. Counsel for Davis next argues that section 349(a)(6) of the
Aetn, 8 U.S.C. 1481(a)(6), should be construed to mean that a
voluntary renunciation of American citizenship will be effective only if
the person acquires another nationality. To interpret section 349(a)(6)
otherwise would, it is argued, cause that provision to run afoul of the
Ninth and Tenth Amendments to the Constitution. None of the authorities cited by counsel persuades us that his suggested construction
of section 349(a)(6) is in accord with Congress' intent. He has cited no
authority whatever to support his argument with regard to the Ninth
and Tenth Amendments.
Related provisions of the Act demonstrate that counsel's construction
of section 249(a)(6) is erroneous. Moreover, such direct authority as
exists on this point supports the conclusion that a voluntary renunciation of citizenship under section 349(a)(6) is effective even though it
results in statelessness. Section 349(a) provides:
From and after the effective date of this Act a person who is a national of the United
States whether by birth or naturalization, shall lose his nationality by—
(6) making a formal renunciation of nationality before a diplomatic or consular
of, the provisions of this or any other Act, the burden shall be upon the person or party

claiming that such loss occurred, to establish such claim by a preponderance of the
evidence. Except as otherwise provided n3 subsection (b), any person who commits or
performs, or who has committed or performed, any act of expatriation under the
provisions of this or any other Act shall be presumed to have done so voluntarily, but
such presumption may be rebutted upon a showing, by a preponderance of the evidence,
that the act or acts committed or performed were not done voluntarily.
e We have no power to declare provisions of the statutes which we administer unconstitutional. Matter of Cortez, Interim Decision 2503 (BIA 1977); Matter of Lennon-,
Interim Decision 2304 (BIA 1974).
1 ° Section 349(a)(6) is identical to section 401(f) of the Nationality Act of 1940. Since the
relevant provisions of the Immigration and Nationality Act of 1952 are virtually identical
to the corresponding provisions of the Nationality Act of 1940, further references will be

nna<le only to the Immigration and Nationality Act of 1952.

Section 405(e) of the 1952 Act, 8 U.S.C. 1101 (note), preserved the comparable loss of
nationality provisions in the 1940 Act applicable to expatriating acts performed during the
ercective dates of the 1940 Act.

522

interim Decision Vizobt)
officer of the United States in g foreign state, in such forms as may be prescribed by
the Secretary of State."
It may be seen that the section, by its terms, does not make renunciation conditional upon the acquisition of another nationality.
Section 349(a)(7), 8 U.S.C. 1481(a)(7) provides for loss of nationality
by making a formal written renunciation in the United States whenever
the United States is at war and the Attorney General approves such
renunciation.
Section 349(a)(8), 8 U.S.C. 1481(a)(8), provides for loss of nationality
for deserting the United States Armed Forces in time of war. 12
Section 349(a)(9), 8 U. S. C. 1481(a)(9), provides for loss of nationality
for any act of treason against, or attempting by force to overthrow, or
bearing arms against the United States.

Section 349(a)(10), S U.S.C. 1481(a)(10), provides for loss of nationality for departing from or remaining outside of the United States in
time of war or during a period declared by the President to be a period
of national emergency for the purpose of avoiding training and service in
the United States Armed Forces. i 3
Plainly, sections 349(a)(7) through 349(a)(10) provide for expatriation
for acts which are not connected with the acquisition of a foreign nationality.
Section 349(a)(4)(A), 8 U.S.C. 1481(a)(4)(A), on the other hand provides for loss of nationality by "accepting, serving in, or performing the

duties of any office, post, or employment under the government of a
foreign state or a political subdivision thereof, if he has or acquires the
nationality of such foreign state." (Emphasis supplied.) The terms of
section 349(a)(4)(A) indicate that Congress considered the acquisition of
foreign nationality significant in that particular context. Therefore, it
" Counsel cites language from a Cabinet Committee report to the effect that section
41111(f) of the Nationality Act of 1940 was "designed especially for the use of persons who
shall have acquired at birth the nationality of a foreign state, as well as that of the United
States, and who, upon reaching majority, elect that nationality of a foreign state. It is
obvious that such person cannot obtain naturalization iii the foreign state, since they are
nationals thereof, and it frequently happens that there are no provisions in the laws of the
foreign state of which they are nationals under which they may take an oath or make a
formal affirmation of allegiance thereto, and thus divest themselves of their American
nationality. . . ." Revision and Codification of the Nationality Laws of the United States,
Part I, pp. 67-68 (June 13, 1938).
The fact that most people who expatriated themselves under section 401(f) and its
successor provision in the 1952 Act were dual nationals does not in any way show that
Congress intended to preclude American citizens who were not dual nationals from
expatriating themselves under the same provision.
12 This provision was declared unconstitutional in Trop v. Dulles, 356 U.S. 86 (1958).
This provision was added. in 1444. See 58 Stat 746. It was declared unconstitutionality
Kennedy v. Mendoza-Martinez, and Rusk v. Cort, 372 U.S. 144 (1963).
"

523

Interim Decision #2650
would seem that the absence of a similar proviso in section 349(a)(6) is
not an oversight, a conclusion supported by the fact that foreign naturalization is itself made a ground for expatriation in section 349(a)(1).
Section 351(a), 8 U.S.C. 1483(a) provides:
Except as provided in paragraphs (7), (8), and (9) of section 349 of this title, no
national of the United States can expatriate himself, or be expatriated, under this Act
while within the United States or any of its outlying possessions, but expatriation shall
result from the performance within the United States or any of its outlying possessions
of any of the acts or the fulfillment of any of the conditions specified in this chapter if and
when the national thereafter takes up a residence outside the United States and its
outlying possessions.

Congress evidently believed that certain acts, performed in the United
States, should not result in expatriation unless the person thereafter
took up a residence outside the United • States. The way Congress
defined "residence" (8 U.S.C. 1101(a)(33)) when read in relation to
section 351(a), clearly shows that it did not want statelessness to be a
bar to expatriation. See also section 352(a) of the Act, 8 U. S. C.
1484(a). 14
In Jolley v. INS, 441 F.2d 1245 (5 Cir.), cert. denied 404 U.S. 946
(1971), a native-born United States citizen had gone to Canada and
executed a formal Oath of Renunciation pursuant to section 349(a)(6).
He did this to avoid military service during the Vietnam War. Despite
the fact that Jolley would clearly become stateless, and would, unlike
Davis, be permanently barred from entering the United States, even as
an alien, id at 1257, the court found that he had expatriated himself.
There is no hint or suggestion, even in the dissent, that section 349(a)(6)
might not contemplate expatriation where it resulted in statelessness.
See also United States v. Lucienno D'Hotelle, 558 F.2d 37, 42 43 (1 Cir.
1977). Similarly, legal scholars have assumed that a voluntary renunciation of American citizenship would be effective, even if statelessness
resulted."
It is true that there has been some movement in the international
sphere to reduce the incidence of involuntary statelessness resulting
from various national expatriation laws. The 1961 United Nations Conference - on the Elimination or Reduction of Future Statelessness, in
which the United States participated, adopted a Convention on the
Reduction of Statelessness, U.N. Doc. A/CONF. 9/15 (August 29,
1961). Articles 5 through 9 of the Convention provided, in general, that
any involuntary expatriation law of a signatory state is to be conditioned
upon the person's possession or acquisition of another nationality. How-

" This provision was held unconstitutional in Schneider v. Rusk, 377 U.S. 163 (1964)•
" Gordon, "The Citizen and the State: Power of Congress to Expatriate American
Citizens," 53 Georgetown L.J. 315, 360-361 (1965); Fort, "Involuntary Expatriation:
Rogers v. Bellei—A. Chink in the Armor of Afroyim," 21 Am. U. L. Rev. 184, 205 (1971);
Agate, 27 U. Pitt. L. Rev. at 39.
524

Interim Decision #2650
ever, as of 1970, only five countries had signed the Convention, and only
one country, the United Kingdom, had ratified the Convention.
The United States has not signed or ratified the Convention. This
country's reluctance to do so is "probably explained by its comments'
during the drafting stage, which specified that Articles 6, 7, and 8 of the
Convention conflicted with . . . the Immigration and Nationality Act of
1952." 16 Even if the Convention becomes effective and the United
States adheres to it, it would not affect Davis' case because it contains
several exceptions, whereby expatriation could still result in statelessness. One exception is "where the national . . : gives definite evidence
of his determination to repudiate his allegiance." 17 Thus, even the
Convention on the Reduction of Statelessness deems it appropriate to
allow for voluntary renunciation of citizenship where statelessness results.

II
Davis contends that if he is not an American citizen, he is an American
"national." The argument is that even if he did renounce his citizenship,
this is not inconsistent with continued permanent allegiance to the
United States. See section 101(a)(22) of the Act, supra. The argument

fails for two reasons.
First, section 349 of the Act speaks in terms of "loss of nationality,"
not loss of citizenship. The Oath of Renunciation signed by Davis contained the same language:
I hereby absolutely and entirely renounce my nationality in the United States . .
and abjure all allegiance and fidelity to the United States of America.

We hold that when a person renounces his citizenship, he necessarily
renounces his American nationality as well.
Second, there is nothing in Davis' "Statement of Beliefs" or in his
subsequent conduct which would make us doubt that he did intend to
abjure all allegiance to the United States. Thus, even if it were possible
to renounce one's citizenship while maintaining permanent allegiance to
the United States, we would find that Davis had not done so,
In view of the above, we need not decide whether the statutory
category "nationals of the United States" is exhausted by (1) citizens of
the United States and (2) nationals at birth, as defined by section 208 of
the Act, 8 U.S.C. 1408."
Having found that Davis is not a United States citizen or national, it
16 Duvall, "Expatriation Under United States Law, Perez to Afroyim: The Search for a
-Philosophy of American Citizenship," 56 Va. L. Rev. 408, 419 (1970).
17 Id, n. 67.
18 See the Koszta case, involving an Austrian subject who came to the United States,

declared his intention to become an American citizen, and wont abroad. Protection was

granted on the theory that he had severed his relationship with Austria and had become

525

interim 'ecision iT4uou

III
follows that he is an alien. Section 101(a)(3) of the Act, 8 U.S.C.
1101(a)(3) defines an alien as "any person not a citizen or national of the
United States."
It remains to be determined whether Davis is still a lawful permanent
resident alien or whether he abandoned that status. It must be emphasized that Davis is excludable under section 212(a)(20) of the Act in

either case, because he is in possession of no valid documents. However,
if he is an alien returning to an unrelinquished lawful permanent residence in the United States, the normal documentary requirements may
be waived pursuant to section 211(b) of the Act, S U.S.C. 1181(b). See 8
C.F.R. 211.1(b). 19 On the other hand, if he abandoned his permanent
resident status, Davis must go through the process of obtaining a new
immigrant visa. See section 211(a) of the Act, 8 U.S.C. 1181(a).
The Board has held that once a colorable claim to returning lawful
resident status is established, the burden is on the Government to show
that that status has been abandoned. Matter of Kane, Interim Decision
2371 (BIA 1975). See Chew v. Rogers, 257 F.2d 607 (D.C. Cir. 1958).
The last time that Davis appears to have been- admitted to the United
States for lawful permanent residence was in 1958. In determining
whether his subsequent absences from this country were "temporary
visits abroad" or whether they constituted an abandonment of status,
we refer to the standards set out in Matter of Kane, supra. The basic

standard is the intention of the alien, when it can be determined.
Attention is given such factors as the purpose of departing, the length of
the stays abroad, and the extent of the alien's ties with the United States.
Davis left the United States early in 1961, after having been issued a
Permit to Reenter the United States (Form 1-131). Information contained in the application for that permit indicates the following: that
Davis was divorced, that he intended to be abroad in the United Kingdom, France, and West Germany on business for 17 days. His occupation and employer were given as travel agent and Transglobe Travel,
Inc. of 119 West 57th St., New York. The permit, issued on February S,
1961, was valid for one year.
Davis did not return for a number of years after the permit had
expired. During his absence, he lived in France, remarried, and went
into business. His three younger children were born. Although Davis
does not remember exactly when or why he returned to the United
States, he concluded at the hearing that it was sometime in the late
an American "national" entitled to protection. 2 Wharton, Digest of International Lai)).
357-358 (1886). See also Agata, 27 U. Pitt. L. Rev. at 39, n. 171.
19 As a permanent resident, Davis would also be exempt from the labor certification
requirements of section 212(a)(14) of the Act.

526

Interim Decision #2659

sixties and that he had probably come back for "family reasons." (Tr. at p.
17) He characterized the trip as brief. (Tr. at p. 43)
Davis traveled to the United States in 1975, 1976, and 1977, and
remained for approximately three months each time. Referring to the
1975 visit, he explained that he had "come over for a World citizen
assembly of San Francisco." (Tr. at p. 25) With respect to his arrival in
June 1976, Davis testified that he was not seeking entry as a returning
resident. (Tr. at p. 26) Although a hearing was scheduled to determine
his status, he returned to France before the hearing was held. Before
his next visit to the United States in 1977, Davis secured a 13-2 visa at
Strasbourg, France, as a nonimmigrant visitor for pleasure. A nonimmigrant visitor is defined in section 101(a)(15)(B) as "an alien . . . having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or
temporarily for pleasure." As a visitor, Davis arrived on January 30,
1977, and was authorized to remain for three months. Two weeks before
his visa expired, he returned to France. A divorce had apparently been
granted in February, while he was in the United States. On May .13,
1977, he made his most recent application for admission, with no documents except his World Service Authority passport.
From Davis' testimony it is apparent that his soujourn in Europe
after 1961 cannot be characterized as a "temporary visit abroad." For
nearly 10 years Davis lived in Europe—principally in France—where he
married, raised a family, and engaged in business. His periodic trips to
the United States were of brief duration and appear to have been for
family or business reasons. We can find no indication that he intended to
maintain his resident status throughout his absence. His decision in late
1976 to secure a nonimmigrant rather than an immigrant visa from the
United States consulate in France corroborates our conclusion that Davis
abandoned his status after 1961. He did not take steps to reacquire that
status.
We note that Davis has obtained three immigrant visas in the past.
He has several immediate relatives who are United States citizens. Any
of them might submit the necessary visa petition in his behalf.
We find that Davis is excludable under section 212(a)(20) , of the
Immigration and Nationality Act. He is not excludable under section.
212(a)(26) because he was not a nonimmigrant. There is no evidence
concerning whether Davis is coming to the United States to perform
labor, so the applicability of the exclusion ground under section
212(a)(14) remains in doubt; however, because of our disposition under
the section 212(a)(20) ground, we deem it unnecessary to, look further
into the alleged requirement of a labor certification. The appeal will be
dismissed.

ORDER: The appeal is dismissed.
527