MATTER OF J—P-

In EXCLUSION Proceedings
A-10692473
Decided by Board March 19,19G°
Inadmissibility—Section 212(a)(14)(B)—Commuter status not affected.
A returning resident alien commuter is inadmissible to the United States valet'

destined to employment with a firm concerning whom the Secretary of Labor
has issued a certification under section 212(a) (14) (B) of the 1952 Act.
However, this inadmissibility does not require termination of his status as
a commuter, nor is it a bar to hie adrniaaion as a commuter when, and if,

destined to other than the prohibited employment.
EXCLUDABLE: Act of 1952—Section 212(a).(14) [8 U.S.C. 1182(a) (14)]- Alien
seeking to enter to work for employer as to whom Secretary
of Labor has issued certificate.

BEFORE THE BOARD
DISCUSSION; Appellant is 25 years uld, married, male, a native and citizen of Mexico. He arrived at El Paso, Texas, on
January 8, 1962, and applied for admission as a returning resident
alien commuter, presenting a Form I-151, Alien Registration Receipt Card. Following an exclusion hearing, the special inquiry
officer ordered that he be admitted to the United States in the status
for which he had applied, and certified the case to this Board for
final decision. The District Director, El Paso District, files a brief
in opposition to the special inquiry officer's order.
Appellant was admitted to the United States on January 21, 1957,
at El Paso, Texas, as an immigrant, and since that time has been
entering as a commuter for employment when he has been able to
secure employment in this country. Appellant first began working
for Peyton Packing Company at El Paso in February 196U, and

worked for them intermittently from that time until the date of his
hearing in exclusion proceedings on January 10, 1962. On one occasion he lost three or four months from work as the result of an
injury (necessitating an operation) suffered in the course of his
employment. On March 2, 1959, the Amalgamated Meat Cutters
and Butchers, AFL–CTO, struck the, Peyton Packing Company. Tn
591

connection with this labor dispute and litigation arising therefrom,
appellant has been laid off from time to time.
On petition by the union involved, the Secretary of Labor on
October 20, 1959, issued a certification and advised the Attorney
General as follows :
Pursuant to the provisions of section 212(a) (14) (B) of the Inimigration and
nationality Act, 68 Stet. 183, 8 U.S.C. 1182(a) (14) (B), I hereby determine and
certify that the admission of any aliens to the United States for employment
at the Peyton Packing Company of El Paso, Texas, during the strike presently in progress will adversely affect the wages and working conditions of
workers in the United States similarly employed.

The union brought suit in the United States District Court
naming the Attorney General and the Commissioner of Immigration as defendants to require these officers to enforce the aforesaid
certification of the Secretary of Labor. The certification was ineffective from the viewpoint of the union, as the Service interpreted
the provisions of section 212(a) (11) not to apply to commuter

aliens (those who hava been admitted for permanent residence, even
though they continue to reside across the border), or to "returning
lawfully domiciled resident aliens." The special inquiry officer refers to the decision of the court in this matter as "unreported." We
cited the decision Amalgamated Meat Cutters and Butcher Workmen of .North, America, AFL–CIO v. Rogers and Swing. 186 F.
Supp. 114 (D.C. D.C., 1960), in Matter of C—C—, A-12251617,
reported at 9-387, but we had concluded that decision was not determinative of the case then before us.
It was the Board's opinion that C C (9-387) fell within "an
ineligible class" solely because his prospective employer was, unknown to him, "an ineligible employer." The certification under section 212(a) (14) (B) did not make the alien ineligible to receive a visa
except for his employment, and this condition depended, in turn, upon
the ineligibility of the employer. We found that C C-- had cured
the obstacle to his admission created by the ineligibility of his former
prospective employer when he secured a different (eligible) employer
and a new affidavit of support. Neither the decision of the special
inquiry Officer nor the brief of the district director in opposition
thereto refers to Matter of C—C—, 9-387.
In Amalgamated Meat Cutters and Butcher Workmen. of North
America, AFL–CIO v. Rogers and Swing, supra, the court was
aware of the history of the "commuter" class, and said:
. . . The defendants can utilize the documentary requirements and adminis—

—

—

trative procedures they think best under the applicable law for aliens who
work in this country and live in Mexico or Canada. If the defendants are
satisfied that an alien can enter the United States to work here, they could
then permit the alien to commute. But when the Secretary of Labor has

592

issues

to particular em
It is not sufficient to resort to
an "amiable 'fiction" to justify a wholesale evasion of the Secretary's certification—Mexican commuters destined for the employment covered by the certification must be excluded just as any other Mexican nonresident alien. To do
otherwise would be to permit administrative practice to make a shambles of a
provision which, with section 101(a) (15) (H), was newly designed by the 1952
Act in order to assure "strong safeguards for American labor." (Emphasis
a certification , undor eeotion 212(a) (10 rprtrpitting

ployment, such an alien would be excludable.

supplied.)

The defendants urge Matter of E1--0, supra,1 upon the Court.. . Although
the Board makes the broad statement that "the practice of considering commuters as permanent residents has not been disturbed by the act of 1952," the
Board was not faced with the effect of a section 212(a) (14) certification upon
the excludability of a commuter. Furthermore, stress is put upon the definition of ''border crossing identification card" as given in section 101(a) (6),
8 U.S.C.A. 1101(a) (6), but the Court does not believe this provision . . .
malten a commuter a resident of the United States, when it is clear that he
is not, so as to permit his entry notwithstanding the certification of the
Secretary of Labor.
The Court concludes, therefore, that "returning lawfully domiciled resident
aliens" may enter the United States to work at the Peyton Packing Company,
but that commuters are not within this class and should be excluded. 2

The court said that Mexican commuters do not reside in the
United States and that it is, therefore, not possible for them to be
"aliens lawfully admitted for permanent residence," but this should
not mean "that Mexicans or Canadians cannot commute to work in
the United States," so long as they are not destined to an employer
covered by a "certification."
Appellant testified that he and his wife moved to El Paso in order
to remove themselves from the class of commuters, but, because the
Peyton Packing Company was able to employ appellant only part
time, his pay check, after deductions, was not sufficient to permit
him to live in El Paso, except under the poorest conditions. Therefore, they returned to Juarez. He testified that he has unsuccessfully sought other employment.
Amalgamated Meat Cutters and Butcher Worlcmen of America,
AFL–C10 T. Rogers and Swing, supra, precludes the Immigration

Service from admitting respondent. only if he is destined to employment with the Peyton Packing Company, so long as the. Secretary
of Labor's certification under section 212(a) (14) continues in effect.
We see no reason why the formula used by us in Matter of C—C—,
supra, is not applicable to the instant case. The certification does
not make appellant ineligible to enter as a commuter worker, except
for his employment. We find that termination of his "fictional resi1 Matter of II-0, 'cited by Judge Youngdahl, was decided by the Board of
Immigration Appeals (March 16, 1954), and is reported at 5-716.
2 It is stated by the district director that Judge Walsh, in ruling finally In
favor of the plaintiff, arlopted lodge Youngdahl's opinion as part of his decision. Judge Walsh's ruling has not been reported, so far as we can discover.

593
654377---63

39

dente" in the United States is not required by the Amalgamated
Otherwise, he would have to start
from the beginning to secure reentry documents, which should be
an unnecessary hardship for the alien. If appellant is able to obtain other employment, and it is evident that he had no intention
to abandon commuter status, 3 he should continue to be eligible for
the commuter status.
It is the conclusion of the Board that the alien should be given
permission to reapply for admission to the United States in commuter status if he seeks readmission for other than the prohibited
employment. This is not to be considered as a general rule, but is
to apply only to employees of the Peyton Packing Company, because
the status of their commuter employees has been determined by a
federal court decision which we consider to be binding upon us.
ORDER: It is ordered that the order of the special inquiry officer
be and is hereby reversed.
It is further ordered that the applicant be eiselutled as a returning resident alien commuter, so long as he is destined to employment with the Peyton Packing Company, El Paso, Texas.
It is further ordered that the appellant be given permission to
reapply for admission as a commuter worker when, and if, he is
destined to employment with an employer not•covered by a certification of the Secretary of Labor under section 212(a) (14) of the
Immigration and Nationality Act.
Meat Cutters decision, supra.

3 Matter of M—D—S,
8-209, 214, details the circumstances under which am
alien retains commuter status, even though he may be temporarily unemployed_

594


Interim Decision #2561

MATTER OF WIDT.P

In Deportation Proceedings
A-20535964

Decided by Board March 2, 1977
(1) Respondent conceded deportability under section 241(a)(2) of the Immigration and
Nationality Act as a nonimmigrant who remained beyond the authorized period of
admission. The only issue on appeal involves respondent's application for adjustment of
status under section 245 of the Immigration and Mationality Act which was opposed by
the Service on the ground that respondent was inadmissible to the United States under
section 212(a)(23) of the Act by reason of his conviction in England for illicit possession
of marihuana.
(2) Respondent was convicted of having a dangerous drug, cannabis resin, in his possession without being duly authorized, in violation of Regulation 3, Dangerous Drugs (No.
2) Regulations 1964, and Section 12 Dangerous Drugs Act of 1965, a statute which
makes lack of knowledge that a prohibited substance is in one's possession irrelevant to
the offense. See Lennon v. INS, 527 F.2d 187 (2 Cir. 1975).
(3) Since Congress did not intend to impose the harsh consequences of exclusion upon an
individual convicted of possession of drugs under a foreign law that made guilty
knowledge irrelevant to the offense, the decision of the immigration judge granting
respondent's section 245 application was correct.
CHARGE:
Order. Act of 1952 —Section 241(a)(2) f8 U.S.C. 1251(a)(2)j —Nonimmigrant—remained
longer

ON BEHALF OF RESPONDENT: Dennis M. Mokai, Esquire
5680 Wilshire Boulevard, Suite 1800
Los Angeles, California 90036
BY: Ifilhollan, Chairman; Wilson, Torrington, Maniatis, and Applernan, Board Members

In a decision dated February 18, 1978, after finding the respondent
deportable as charged, the immigration judge ordered that the respondent's application for adjustment of status under section 245 of the
Imniigration and Nationality Act be granted subject to the condition
that no derogatory information be revealed in the administrative processing of the application. The Service has appealed from that decision.
The appeal will be dismissed.
The respondent, a native and citizen of Great Britian, admitted the
truth of the allegations contained in the Order to Show Cause and has
125

Interim Decision #2561
conceded deportability under section 241(a)(2) of the Act as a nonimmigrant who remained beyond the authorized period of admission. The
only issue on appeal involves the respondent's application for adjustment of status under section 245 of the Act.
The immigration judge found that the respondent was statutorily
eligible for section 245 relief and merited a favorable exercise of discretion. The Service, however, opposed the grant on the ground that the

respondent is inadmissible to the United States under section 212(a)(23)
of the Act by reason of a conviction in England for the illicit possession
of marihuana.
The respondent admits that he was in fact convicted of illicit possession of marihuana. The immigration judge, however, concluded that the
conviction involved in the present case did not subject the respondent to
the exclusion provisions of the Act. In so holding, the immigration judge
relied on the decision of the United States Court of Appeals for the
Second Circuit in Lennon v. INS,527 F.2d 187 (2 Cir. 1975).
In Lennon the court held, as did we in Matter of Lennon, Interim
Decision 2304 (BIA 1974), rev'd, Lennon v. INS, supra, that Congress
did not intend to impose the harsh consequences of exclusion upon an
individual convicted of possession of drugs under a foreign law that
made guilty knowledge irrelevant. However, in its analysis of the
British statute involved, the court reached a conclusion different from
ours: it held that the particular statute imposed absolute liability for
' unauthorized possession of drugs, and it vacated the order of deportation.
The record of conviction in the present case indicates that the respondent was convicted of having a dangerous drug, cannabis resin, in his
possession without being duly authorized in violation of Regulation 3,
Dangerous Drugs (No. 2) Regulations 1964, and Section 12 Dangerous
Drugs Act 1965, the statutory provisions involved in. the Lennon case
(Ex. 3). We have decided to follow the Second Circuit's interpretation of
the statute involved, specifically, that lack of knowledge that a prohibited substance is in use's possession is irrelevant to the offense as set
out in the British statute.
In so holding, we note that, after the Notice of Appeal was filed in the
present easy, the Service decided to adopt the court's decision in Lennon with respect to convictions for "innocent" possession under the
United Kingdom's Dangerous Drugs Act of 1965. See Memorandum to
Regional Commissioners from Deputy Commissioner, October 29, 1976.
We conclude that the immigration judge's decision granting the application for adjustment of status under section 245 of the Act was correct.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

126


Interim Decision #2323

MATTER OF SACCO

In Deportation Proceedings
A 8955250
-

Decided by Board October 11, 1974
Respondent requested the Board to stay the deportation proceedings pending his application for Naturalization and the issuance by the immigration, judge of a subpoena for
respondent's military service record. The Board is without jurisdiction to adjudicate
interlocutory appeals.
CHARGE:
Order: Act of 1952—Section 241(a)(5) (8 U.S.C. 1251(a)(5)]—Failed to furnish notification of address or other information in compliance with the
previsions of section 265 and has not established that such failure was reasonably excusable or was not.willful.
ON BEHALF OF RESPONDENT: David W. Walters, Esquire

100 North Biscayne Blvd.
Suite Rau
Miami, Florida 33132

Respondent appeals from two interlocutory decisions made by an
immigration judge during the course of a deportation hearing. Oral
argument is requested. Oral argument will be denied and the appeal will
be dismissed.

The record reflects that no final order of deportation has as yet been
entered by the immigration judge. Among other things, an application
under section 243(h) of the Immigration and Nationality Act remains to
be adjudicated. The notice of appeal states the subject matter of the
appeal as follows:
"Denial by the Immigration Judge of the final orders:
"1. Denial of the Motion for Stay of Proceeding pending Action on the alien's request fur
Naturalization Under Section 329 of the Immigration and Nationality Act.
"2. Denial of the request for Issuance of Subpeona (sic) to the United States Army
personal [sic] records relative to the respondents military service record."

The decisions sought to be reviewed are interlocutory. The regulations defining this Board's jurisdiction permit us to review "Decisions of
[immigration judges] in deportation cases," 8 CFR 3.1(b)(2). The
regulations do not, in terms, preclude our consideration of appeals from
109

Interim Decision #2323
interlocutory decisions of immigration judges. As a practical matter, we
have construed the regulations as contemplating only appeals from final
decisions. On appeal from a decision of an immigration judge, we review
such interlocutory decisions as may be raised by the parties. To permit
piecemeal review of interlocutory orders of an immigration judge at
successive stages of a deportation proceeding before final decision would
only open the door to obfuscation and delay. As a general rule, therefore, we may safely say that we have no jurisdiction under the regulations to adjudicate interlocutory appeals.
In Matter of Fong, 14 I. & N. Dec. 670 (BIA 1974), we did review a
decision of En immigration judge which was not final in form. We there
stated (at p. 3), "The order entered by the immigration judge in this
case, though interlocutory in form, is far-reaching in effect and raises an
important issue in the administration of the immigration laws. The
question is presented in a setting which gives it sufficient finality to
warrant decision by us at this time." The same cannot be said of the case
before us.
We conclude that we lack jurisdiction to adjudicate this appeal. Oral
agrument would serve no useful purpose. We are satisfied from our
review of the record that the appeal is frivolous and filed solely for
purpose of delay. We shall therefore deny oral argument under 8 C.F.R.
3.1(d)(1-a)(iu) and dismiss the appeal summarily. We note, in passing,
that the pendency of a deportation proceeding is no longer a bar to
naturalization under section 329 of the Act.
ORDER: Oral argument is denied.
Further order: The appeal is dismissed for lack of jurisdiction.

110


Interim Decision #2034

MATTER OF STANLAKE

In Exclusion Proceedings
A-14248767
Decided by Board December 19, 1969, as modified March 20, 1970
In the absence of persuasive evidence that he did not intend to renounce his
United States citizenship, applicant who in 1946 was voluntarily naturalized in Canada and took an oath of allegiance to that country (even
though there was no oath of renunciation of U.S. citizenship) thereby
transferred his allegiance which resulted in a loss of United States citizenship under section 401(a) of the Nationality Act of 1940.
EXCLUDABLE: Act of 1962—Section 212(a) (20) [8 U.S.C. 1182(a) (20 )
migrant without immigrant visa.
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney
(Memorandum filed)

ON BEHALF OF APPLICANT:

Marie M. Donohoe, Esquire
217 Lyon Building
60'7 Third Avenue
Seattle, Washington 98104
(Memorandum filed)

B. G. Greenwald
Trial Attorney
(Brief filed)

The special inquiry officer certified his order finding the applicant an alien and excluding him as an immigrant without a visa.
We shall make no change in his order.
The issue is whether the applicant's naturalization in Canada
caused him to lose United States citizenship. The applicant contends expatriation did not result because he became naturalized
in the belief he had to acquire Canadian citizenship in order to
obtain a job as a forest ranger. He states that he did not intend
to renounce United States allegiance when he became naturalized.
The special inquiry officer found the applicant voluntarily became
naturalized, and his assumption of Canadian allegiance was
inconsistent with retention of allegiance to the United States.
The applicant, a 53-year-old male, was born in the United
States. When he was about two years old, his mother, a Canadian
national, took him to Canada. He remained in Canada, except for
a year spent in the United States in 1936. He served in the Cana517

Interim Decision #2024
dian Army from September 1939 to October 1945. On August 13,
1946, he executed a petition for naturalization in Canada and on
the same day took an oath of allegiance to King George VI after
having written it out in longhand (Ex. 8). On October 18 he was
granted a naturalization certificate. This is considered to be the
date of his expatriation (Ex. 5). On October 21 he took an oath
of allegiance with the Province of Manitoba and an oath of office
as a forest ranger. He entered on duty as a forest ranger in
November 1946. He held the job until June 1950. Canadian
authorities have stated that Canadian citizenship was not a
requirement for the position, that an oath of allegiance is not
mandatory, and that an oath of office is required (Ex. 9).
The applicant was self-employed for a while. The Canadian
3overnment paid for some training he took in the United States.
He was hospitalized for a period of time. In 1962, in connection
vith a job in the Canadian post office department, he took an oath
)f allegiance to Queen Elizabeth II and also took an oath of office
',Ex. 7). The applicant certified as true a post office appointment
orm showing that he was "naturalized October 1946" (Ex. 6).
On September 25, 1962, the applicant secured a Canadian passort (p. 28) and filed an application for an immigrant visa with
he American consul at Toronto. The records of the consul reveal
hat the applicant then stated he had become a naturalized Canaian citizen (Ex. 8). He did not proceed with the application.
Applicant was admitted as a visitor at Cleveland, Ohio, on
ctober 26, 1962, for a period ending March 25, 1963. On October
3, 1964, he was placed under deportation proceedings for having
!mained beyond the date of admission. The record of the hearing
as not transcribed. It was adjourned to January 19, 1965 (Ex.
. The record does not show that a hearing was held on January
but we note that exhibits in the deportation hearing were
.ted January 19, 1965. The applicant returned to Canada before
e proceedings could be concluded.
The applicant applied for admission on December 10, 1967. His
ipectiun was deferred but was not completed, because of his
[lure to appear when. requested (unnumbered exhibit following
:. 9).
On July 8, 1968, after applying for admission as a United States
izen, he was given a hearing in exclusion proceedings. The
ler which the special inquiry officer certified to the Board folTed.
kt the time of the applicant's naturalization in Canada, United
,

518

Interim Decision 4#2034

States law provided that a United States citizen would lose his
nationality by—
obtaining naturalization in a foreign state, * * (section 401 (a), Nationality
Act of 1940, 54 Stat. 1168).
On appeal counsel contends that subjective intent controls as to
whether expatriation occurred, that applicant applied for naturalization because he believed it was necessary in order to obtain a
job as a forest ranger, that there is nothing in the record to show
that he desired a transfer allegiance from the United States to
Canada, that the oath signed by the applicant did not state he
was abandoning United States citizenship, that the concept of
dual citizenship is accepted, that the United States and Canada
are similar and that there is traditional friendship between the
countries. Counsel points out that the record does not show that
applicant tried to avoid any duty or obligation imposed upon him
by United States citizenship and that he claimed United States
citizenship when he entered the United Staes.
The Service contends that voluntary naturalization in a foreign
state coupled with an oath of allegiance is inconsistent with
retention of United States citizenship and constitutes a transfer
of allegiance regardless of subjective intent. We need not confront that issue in this case, for we find on this evidence that
respondent has failed to establish a lack of intention to renounce
his United States citizenship.
We do not believe the applicant has established that he sought
naturalization in Canada because he thought it was a prerequisite
to getting a job. In his application for naturalization, he stated
the application was made for the following reasons: "I have been
in Canada since infancy, married to a Canadian, served in the
Canadian Army, and intend to remain in Canada" (Ex. 8). There
is nothing about employment. Furthermore, Canadian citizenship
was not a requirement for the position which the applicant held
(Ex. 9).
To accept applicant's claim, in the face of the documentary evidence to the contrary, requires a finding that he is at least credible. This finding would not be justified on the record. His testimony is conflicting and uncorroborated. Although he now claims
he became naturalized to take a job, when questioned under oath
by the Service in July 1964, he denied that he had ever gone
through a Canadian naturalization procedure. He said that he
was offered a position with the Canadian Government after discharge from the army, that there was a question as to whether he
could be a provincial civil servant since he was an American citi-

519

Interim Decision #2034
zen, that inquiry was made concerning this at Ottawa, Ontario,
that without, further ado he received naturalization papers and
that he refused them (Ex. 15 of Ex. 5, pp. 3, 8). At his hearings

on November 6, 1968, he stated that in 1962 he told the United
States consul in Canada that he had been issued naturalization
papers which he refused (pp. 15-16) . He informed a Service
officer in the summer of 1968 that he had refused naturalization
(p. 27). He stated he had been sent naturalization papers and had
returned them (pp. 34, 35). He testified he returned his naturalization certificate to the Canadian authorities while he was a
forest ranger (p. 37). (There is no record of this.) Applicant
first denied taking an oath of allegiance in connection with the
naturalization, but then stated he did remember taking it and
that he had to feed his family (p. 36). At the hearing counsel
conceded the applicant had voluntarily applied for Canadian naturalization (p. 46).
Applicant's testimony that he never claimed Canadian nationality is refuted by the document he signed in connection with post
office employment showing that he is a naturalized British subject
(Ex. 6). He denied he had sworn allegiance to the Queen when he
took the job with the post office (p. 3 of Ex. 15 of Ex. 5), yet the
record contains a card he signed which shows that he took an
oath of allegiance to the Queen (Ex. 7 of Ex. 15) .
When one voluntarily takes the nationality of another country
and takes an oath of allegiance to that country, whether or not it
contains a renunciation of former allegiance, the normal infermce is that there has been a transfer of allegiance from the old
.ountry to the new. The promise to be faithful and bear true alle;iance to the new soverign does not ordinarily contemplate coninued allegiance to the old. While such continued allegiance may
le possible, we do not find it here. The applicant had lived the
najor portion of his life in Canada. He stated in his petition for
[aturalization that he intended to remain in Canada. He did
emain for many years. He fought in the Canadian Army; he had
Canadian wife; he made no effort to inquire as to the effect of
he naturalization upon his United States citizenship. He claimed
lanadian nationality When he took jobs as a ranger and in the
ost office. He took the oath of allegiance three times. He entered
he United States as an alien visitor. Finding no persuasive evience that the applicant did not intend to renounce United States
itizenship, we see no reason why we should not take the normal
iference from his conduct in seeking foreign naturalization.

We distinguish this case from Baker v. Rusk,

520

296 F. Supp.

1

Interim Decision #2034
1244 (C.D. Cal. 1969), cited by counsel. In Baker the court held
that a native born United States citizen did not become expatriated by taking an oath of allegiance in 1926 to King George V
in connection with admission to the practice of law in Canada,
because the Government failed to establish that he had abandoned
allegiance to the United States. Baker did not seek to become a
naturalized Canadian citizen. He did not become a Canadian citizen by taking the oath. There was no evidence that he ever considered himself a Canadian citizen, and he performed no other
expatriating act. In the instant case, applicant deliberately sought
to become a Canadian citizen; he thereafter represented himself
to be a Canadian citizen.
It was stipulated that applicant voluntarily sought naturalization. Had there been no stipulation the burden would be upon the
applicant of showing that the naturalization was not voluntary.
Section 349 (c) of the Act; 8 U.S.C. 1481 (c). In this regard, his
case differs from that of Matter of Susan B. Anthony Lewis
(A-823447, B1A, June 26, 1969), where the issue was whether
the individual had acted voluntarily.
We draw no adverse inference from the fact that on July 2,
1963, the applicant filed an application for a certificate of Canadian citizenship to replace the one which he had lost. He states
that this was done at the behest of the Service which was investigating his case. There is no contradiction of this testimony.
Counsel contends that Congress has no power to expatriate. We
are without power to consider such a contention, Matter of L , 4
I. & N. Dec. 556 (BIA, 1951).
Counsel contends that exclusion of the applicant would be a
serious matter to his employer since his job is to care for animals
used in research, and there is difficulty in filling such a position.
A finding that applicant lost United States citizenship does not
mean he is barred from the United States forever. If his employment is as difficult to fill as counsel claims, he should be able to
obtain a visa for permanent residence. The Service has indicated
it will do what it can to help the applicant adjust his status.
ORDER: No change is made in the special inquiry officer's
order.

521


MAMA OF G--

In SECTION 245 Proceedings
A-11539151
Decided by Regional Commissioner

Approved by Assistant Commissioner August 25, 1960
Adjustment of status—Section 245, as amended—Burden is upon applicant to
establish favorable action is warranted.
Section 245 application is denied as a matter of discretion to an alien who
married a United States citizen in 1959 and who has presented no independent evidence to support his present claim that his prior sworn testimony regarding the existence of a marriage in Poland was false. Applicant
has burden of establishing that his case merits favorable consideration.
BEFORE THE REGIONAL COMMISSIONER

DISCUSSION: The applicant, a native and citizen of Poland,
born May 6, 1909, in Chodecz, Poland, was admitted to the United
States as a temporary visitor on March 19, 1958. On February 9,
1959, an order to show cause in deportation proceedings was issued
alleging that the applicant, after admission as a nonimmigrant, had
remained in the United States for a longer time than permitted. At
a hearing before a special inquiry officer held on February 18, 1959,

the applicant was found deportable and was granted the privilege
of departing voluntarily from the United States. He failed to
depart within the time granted and on April 30, 1959, a warrant of
deportation was issued. The applicant subsequently applied for a
stay of deportation under the provisions of section 243(h) of the
1952 Act, and on September 4, 1959, that application was denied.
During the entire proceeding up to that date the applicant had
testified that he was married and that his wife and child resided
in Poland. In fact, he testified in detail as to his marital history.
On October 9, 1959, the ztpplicant marr ied a native-born citizen of

the United States and on October 29, 1959, he filed this application
for status as a permanent resident. Concurrently, the woman he
married filed a visa petition to accord him nonquota status. The
visa petition was approved on November 7, 1959. However, on December 14, 1959, the district director denied the application for status
as a permanent resident on the ground that the applicant was pre38

cluded by Part 245.1 of Title 8, Code of Federal Regulations, from
applying for the benefits of section 245 as an alien in whose case a
finding of deportability had been made subsequent to August 21,
1958. On January 6, 1960, this office affirmed the decision of the
district director.
On November 23, 1959, the Board of Immigration Appeals withdrew the outstanding order of deportation and ordered the proceedings reopened to afford the applicant an opportunity to clarify his
marital status. At the reopened hearing on December 15, 1959, the
applicant stated that all of his prior testimony covering his marital
status was false; that he had never been married prior to his marriage on October 9, 1959; and that his son in Poland was illegitimate.
At the conclusion of the reopened hearing the special inquiry officer
held that the testimony at the reopened hearing in no way affected
the prior finding of deportability and he ordered the applicant deported.
On June 22, 1960, Part 245.1 of Title 8, Code of Federal Regulations, was amended to read; "An alien whose deportability has not
been established in proceedings under Part 242 of this chapter subsequent to January 1, 1960, may if he believes he meets the eligibility
requirement of section 245 of the Act, file an application Form I-485
with the district director in whose district he resides." In view of
this change, the Service reopened the proceedings in this case and
this office assumed jurisidiction by certification.
Before action could be taken in the reopened proceedings, section
245(a) of the Act was amended by the Act of July 14, 1960 (74
Stat. 504). The amended section now provides: "(a) The status of
an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the
Attorney General, in his discretion and under such regulations as
he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes application for such adjustment, (2) the alien is eligible to receive an immigrant visa and
is admissible to the United States for permanent residence, and (3) an
immigrant visa is immediately available to him at the time his application is approved."
The regulations implementing the amended provision of law effective July 14, 1060, contain no reference to a finding of deportability.
The application will be considered and decided under this more
advantageous provision of law.
The applicant was inspnetprl and admitted to the United States
and has filed an application on Form 1-485, but a finding as to
whether he is admissible to the United States or whether an immigrant visa is available to him cannot be made until the true facts
as to his marital status are established. In view of his sworn testi39

mony in the deportation proceeding setting forth in detail a history
of a marriage in Poland, his later self-serving statement that all
prior testimony as to his marital status was false cannot be accepted
without some independent evidence to verify that statement.
In order to reach a conclusion as to the true marital status of the
applicant it would be necessary to conduct an independent inquiry

in Poland. We do not feel that it is incumbent upon the government to assume such a burden in connection with an application
under section 245 of the Act. The Service, in administering that
section of law, has consistently held that the extraordinary discretionary relief provided will only be granted in meritorious cases
(Matter of S—, 8 234 ; Matter of C—, 8 683). The burden is always
-

upon the applicant to establish that his application merits favorable

action. In the instant case the applicant, by his own sworn testimony,
has cast serious doubt on his own credibility and has clouded the issue
of his true marital status. Tinder those circumstances, favorable
exercise of the Attorney General's discretion is not warranted.
ORDER: It is ordered that the application be denied as a matter
of discretion.

40


Interim Decision #2229

MATTER OF JIMENEZ
In Exclusion Proceedings
A-18272169

Decided by Board September 24,1973
Conviction of criminal possession of forgery devices with intent to use them for
the purpose of forgery (N.Y.) is conviction of a crime involving moral turpitude.
EXCLUDABLE: Act of 1952—Section 212(a)(9) [8 U.S.C. 1182(a)(9A—Prior to en-

try—convicted of crime involving moral turpitude, to wit: criminal possession of forgery devices.
ON BEHALF OF APPLICANT: Juan J. Turull, Esquire

P.O. Box 2099
.San Juan, Puerto Rico 00903

This is an appeal from an order of exclusion and deportation
entered by the immigration judge. The appeal will be dismissed.
The record relates to a married male alien, a native and citizen
of Colombia, 42 years of age, who was admitted to the United
States as an immigrant on July 17, 1968. The applicant last arrived
at San Juan, Puerto Rico on September 21, 1972 and applied for
admission as a returning resident. The applicant was paroled into
the United States pending these exclusion proceedings. He is

charged with being excludable on the ground that he was convicted of a crime involving moral turpitude prior to entry, to wit,
criminal possession of forgery devices. The record before us contains a certified copy of the record of conviction, which shows that
the applicant was convicted in the Supreme Court of the State of
New York, County of New York, on a plea of guilty on January 14,
1971.
On appeal, counsel contends that the conviction should not be
used as the basis for exclusion because the applicant was not in
fact guilty. Counsel contends, amoung other things, that the
. applicant did not know English well enough to enter a meaningful
guilty plea. Such a collateral challenge to a judgment presents no
Question which we can consider; the conviction is res judicata on
the issue of the applicant's guilt.
442

Interim Decision #2229
The applicant further contends that the crime of which he was
convicted does not involve moral turpitude. We conclude that it
does.
Criminal possession has been held to be a crime involving moral
turpitude when accompanied by intent to commit a crime involving moral turpitude, U.S. ex rel. Guarino v. Uhl, 107 F.2d 339 (C.A.
2, 1939). In this ease the applicant was convicted on a plea of guilty
to the charge of criminal possession of forgery devices with intent
to use them for the purpose of forgery (Ex. 3; pp. B2 & B15).
Forgery has been held to be a crime involving moral turpitude, 38
Op. Atty. Gen. 128 (1934); Matter of A-, 5 I. & N. Dec. 52 (B IA 1953);
Morasch v. INS, 363 F.2d 30 (C.A. 9, 1966); U.S. ex rel. Robinson v.
Day, 51 F.2d. 1022 (C.A. 2, 1931). Thus, the crime of which the
applicant was convicted involved moral turpitude. The decision of
the immigration judge was correct.

ORDER: The appeal is dismissed.

443


Interim Decision #1408

MATIDR OF DORAN-MONTOYA

In SECTION 245 Proceedings
A-12354681
Decided by Regional Commissioner September 16, 1963 .
Adjustment of status under section 245, Immigration and Nationality Act, as
amended, is denied, in the exercise of discretion, where applicant made no
effort to legally terminate his first marriage entered into in Colombia by religious ceremony which, while not civilly recorded, is regarded as a valid
marriage, prior to entering into a second marriage in the United States in 1960
with a third party with whom he has since lived in a husband-wife relationship.

This matter has been certified to the Regional Commissioner for
review of the decision of the District Director denying the application
for adjustment of status.
The applicant is a 29-year-old married male native and citizen of
Colombia who last entered the 'United States at Miami, Florida on
October 15, 1961 as a nonimmigrant visitor for pleasure. On November 1, 1961 he submitted the instant application for status as a
permanent resident under section 245 of the Immigration and Nationality Act. The application reflects that the alien has been married
only once and that he has no children. He bases his eligibility for
nonquota status on his birth in Colombia.
Subsequent to the filing of the application it was determined that
the alien had married Flor Angela Cortes in accordance with Catholic
rites at Bogota, Coloinbia on February 5, 1952. He later married M.
Xiomara Cuervo, a permanent resident alien, in Miami, Florida on
October 20, 1960. The District Director found that the applicant
was living in a husband and wife relationship with his second spouse

although his first marriage had never been legally terminated. It was
concluded, therefore, that the application did not merit favorable
discretionary action and it was denied on April 19, 1962.
An appeal was taken from this denial in which it was argued that
the applicant's religious marriage in Bogota, Colombia was not legally binding since it was not registered civilly. In support of this
position there was submitted a statement from a Bogota attorney
which stated in effect that in the absence of civil registry there is
767

Interim Decision #1408
insufficient evidence of the legality of an ecclesiastical marriage. The
case was thereupon remanded to the District Director for further
resolution of this issue. Additional inquiries elicited the following
information from the Hispanic Law Division of the Library of

Congress.
The Civil Code of Colombia in force at the present time was originally adopted in 1887, and has been amended over the years. Article
19 of Law 57 states: "For all civil and political effects, marriages
celebrated according to the Catholic rites are valid." Similarly,
Article 50 of Law 153 reads: "Marriages celebrated in the Republic

at any time, in accord with the Catholic rites, are legitimate and from
the moment of administering the sacrament, will be civilly and politically effective."
Article 17 of Law 35 of 1888 and Article 2 of Law 95 of 1890 are
concerned with the appointment of a civil official to attend the religious ceremony for the purpose of verifying the recording of the
marriage in the civil register. The Resolution of the Minister of

Government, No. 8011, of 1890 states: "The lack of intervention by
the Notary or Municipal Secretary at the celebration of the Catholic
weddings does not void them; and they shall have civil effects."
It was not until the enactment of Law 92 of 1938 that there was

created a system of civil registry in Colombia independent of ecclesiastical registration. The provisions of Article 8 and Article 12
of Law 92 of 1938 are repeated in more detail in the regulation to
this law, adopted as Decree 1003 of 1939. In both pieces of legislation, it is reflected that the entry in the civil register shall constitute
prima facie proof of the proceedings recorded and of the civil status.
Article 19 of Law 92 of 1938 further provides that in absence of
civil registration there are four types of secondary proof : (1) Certified documents; (2) Church records; (3) Declaration of witnesses
who were present at the proceedings where the civil status was ac-

quired; (4) Notorious possession of said civil status.
Inquiries directed to the American Consul at Bogota, Colombia
and the. Consulate General of Colombia at New York further substantiated that there is no provision under Colombian Law for in-

validation of a religious marriage on the ground of lack of civil
registration.
It has been established that the applicant married Flor Angela
Cortes in accordance with Catholic rites in the Parish of Nuestra
Senora de Las Aguas of Bogota, Colombia on February 5, 1952 as
evidenced by a certified copy of the entry in the marriage records of
the parish. The applicant has advised that he married Flor Angela
Cortes, seven years his senior, in a religious ceremony because he
768

Interim Decision #1408
believed her to be pregnant as a result of premarital relations. He
claims, however, that he never introduced her to anyone as his wife.
The record reveals that the alien stated in his application for a
,nonimmigrant visa before the American Consul at Barranquilla,
Colombia on September 2, 1960 that he was married to Flor Angela
Cortes. Further, two children were born of this marriage, one on
May 1, 1953 and the other in 1954 or 1955. The marital relationship
was maintained until shortly before the birth of the second child,
at which time they separated_ The applicant has admitted that he
contributed to the support of their two children on an intermittent
basis until January of 1963.
The alien made no effort to legally terminate his first marriage

prior to marrying M. Xiomara Cuervo on October 20, 1960. He has
since lived with the latter in a husband and wife relationship and
they have a child who is now about one year old.
After careful consideration of all of the foregoing factors we find
that the District Director properly concluded that the instant application for adjustment of status does not merit the favorable exercise
of discretion authorized by section 245 of the Act. Accordingly,
his decisiOn will be affirmed.
It is ordered that the District Director's decision denying the application as a matter of discretion be and same is hereby affirmed.

76$-456-6:i --50

769


Interim Decision #1583

Marra or

SANTORO

In Deportation Proceedings
A-42818895.
Decided by Board May 13, 190
A conviction of Mayhem, as defined in Title 11, chapter 29, section 1, of the
General Laws of Rhode Island, is conviction of a crime involving moral
turpitude.
CussesOrder; Act of 1952—Section 241(a) (4) [811.S.C. 1251(a) (4)]—Crime within five years—mayhem.

This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.•
The respondent is a 30-year-old married male, native and citizen
of Italy, who entered the United States on September 15, 1962 at
which time he was admitted for permanent residence. On November
25, 1964, he was convicted of mayhem in the Superior Court of

Rhode Island and on August 11, 1965 he was sentenced to confinement in the Adult Correctional Institution for five years but execution of the sentence was suspended and he was placed on probation
for eight years. The offense was committed on March 8, 1966. The
sole issue in this case is whether the -respondent is deportable on the
charge stated above.
We have carefully reviewed the entire record. The revbrse of the
notice of4ppeal (Form I-290A) contains the only argument which
has been made by counsel. The principal contentions are: (1) that .
volving moral turpitude; (2) that, in determining whether the
crime committed by the respondent involved moral turpitude, the
mitigating.circumstances must be considered; and (3) that the respondent has not been actually sentenced to imprisonment for one
year because a lesser sentence might be imposed in the future.
With respect to the first contention, the indictment (Ex. 3)
charged that the respondent "feloniously; .voluntarily, maliciously
„
607
•

mayhe,sdfinbtlaw-oRhdeIsn,itacrm-

Interim Decision #1583
and of purpose did bite off and disable a member of Nancy Santoro;
to wit, the nose of the said Nancy Santoro." Title 11, Chapter 29,
Section 1 of the General Laws of Rhode Island defines the crime of
mayheiii as follows:
11-28-1. Penalty fur mutilation or iliNablIng.--Every person who shall voluntarily, maliciously or-of purpose put out an eye, slit the nose, ear or Up, or

cut off or bite off or disable any limb or member of another, shell be imprisoned not exceeding ten (10) years nor less than one (1) year.

It is clear that an accidental or even a. negligent mutilation or
disabling would not constitute the -offense of mayhem. The statute
specifically requires that the act be done "voluntarily, maliciously
or of purpose". In view of the evil intent required to constitute

mayhem and the serious nature of the crime, we conclude that the
crime of which the respondent was convicted involves moral
turpitude.
In connection with counsel's second contention, Exhibit 4 is a
letter from the Rhode Island Bureau of Probation and Parole indicating that the respondent has complied. with the conditions of his
probittion; that he "would be considered a model probationer"; and
that the crime was brought about by a domestic situation that had
mitigating circumstances. Nancy Santoro, who was the victim of
the crime, was and is the respondent's wife. She had corresponded
with the respondent and then went to Italy to marry him. Thereafter, she filed a visa petition and he secured nonquota status. The
respondent testified that, although he had repeatedly sought to have
sexual intercourse with his wife, she had continued to refuse, , and
that it was this factor which finally led. to his commission of the
offense. It is unnecessary for us to decide to what extent his wife's
action may have been a mitigating circumstance since it has long
been settled judicially that the immigration authorities may not go

behind the record of conviction to examine the circumstances under '.
which the crime was committed, and the determination of whether
the crime involves moral turpitude must be made on the basis of the
statutory definition of the crime and the record of conviction.
United States en rel. Zaffarano v. Corsi, 63 F.2d 757 (2d Mi., 1933) ;

United States en rel. Meyer v.- Day, 54 F.2d 336, 337 (2d Cir., 1931) ;
United States en rel. Robinson v. Day, 51 F.2d 1022 (2d Cir., 1931).
Accordingly, counsel's second contention is dismissed. .
Counsel's third contention is that the respondent has not been
actually sentenced to imprisonifient for one year because a lesser
sentence might be imposed in the future. This contention is based
on Title.12, Chapter 19, Section 14 of the General- Laws of Rhode
Island which provides, in effect, that where there has been suspen-

608

Interim Decision #1583
sion of execution of sentence and violation of probation, the court
may continue the suspension or may revoke the suspension and order
_ the defendant committed. on the sentence previously imposed or any
lesser sentence. As we have previously indicated, the sentence imposed was confinement for five years with execution of the sentence
suspended and probation for eight years. If the respondent violated his probation., it appears highly conjectural that the court
would then impose a sentence of less than one year. In any event,
we must dispose of the appeal on the basis of the present record and
not on the basis of some future contingency which may or may not
occur. Accordingly, we reject this contention of counsel.
An additional matter, which was not specifically urged on

appeal,
is that the respondent was not actually imprisoned under the conexecution of the sentence was suspended. As the special
viction slues
inquiry officer pointed out, we have held that an alien who was sentenced to imprisonment for over one year but whose sentence was
wholly suspended 'was, nevertheless, deportable under 8 U.S.C.
1251(a) (4). Matter of M , 6 I. & N. Dec. 846 (1954). The special
inquiry officer has also discussed his reasons for concluding that no
discretionary relief from deportation is available to the respondent,
and we concur in his conclusion. In view of the foregoing, the appeal will be dismissed.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
—

609