Matter of Cruz-Gastelum

This case comes forward on certification from the special inquiry officer, who found the respondent deportable as charged, ineligible for any form of discretionary relief, and ordered him deported to the Republic of Mexico. Respondent is a 24-year-old single male alien, native and citizen of Mexico, who was admitted to the United States for permanent resi- dence, in possession of a nonquota immigrant visa, on August 16, 1962, at San Ysidro, California. On October 25, 1965 he was convicted, upon his plea of guilty, in the court of the State of California, of the crime of burglary, second degree, in violation of section 459 of the Penal Code of California, committed on October 24, 1965. He was thereafter sen- tenced to imprisonment for the term provided by law (not less than one year and not more than fifteen years), which in his case was set at two years and six months. The crime of burglary in the second degree, in violation of section 459 of the Penal Code of the State of California, has been held to be a crime involving moral turpitude ; see Matter of 2—, 5 I. & N. Dec. 283. At the initial deportation proceedings held in 1966, at which re- spondent chose to proceed without counsel, he conceded that the con- viction record related to him, and that he had come to the United States with an immigrant visa on the date specified, but contended that

本案由特别调查官认证提交，该特别调查官认定答复人如所指控可被驱逐出境，不符合任何形式的酌情救济资格，并命令将其驱逐至墨西哥共和国。 答复人是一名24岁单身男性外国人，墨西哥本土出生和公民，于1962年8月16日在加利福尼亚州圣伊西德罗持非配额移民签证入境美国永久居留。1965年10月25日，他基于认罪，在加利福尼亚州法院被判犯有二级入室盗窃罪，违反加利福尼亚州刑法典第459条，该罪行发生于1965年10月24日。此后他被判处法律规定的刑期（不少于一年且不超过十五年），其刑期定为两年零六个月。违反加利福尼亚州刑法典第459条的二级入室盗窃罪已被认定为涉及道德败坏的罪行；见Matter of 2—, 5 I. & N. Dec. 283。 在1966年举行的初次驱逐出境程序中，答复人选择无律师代理进行程序，他承认定罪记录与其有关，并承认他在指定日期持移民签证来到美国，但主张

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he had been a lawful permanent resident of the United States for many years prior to August 1962. It was 'brought out at the hearing that respondent's father was a native born citizen of the United States who had resided in this country for slightly more than 20 years prior to respondent's birth, but that his residence was two and one-half months short of the five years after attaining the age of sixteen that would have been necessary for respondent to have acquired citizenship at birth abroad under the provisions of section 201(g) of the Nationality Act of 1940. There was no further exploration of respondent's claim of permanent resident status prior to August 1962. The special inquiry officer found respondent to be an alien, deportable as charged, holding that the brief absence from the United States in August, 1962 (which respondent testified was for the sole purpose of picking up the visa and was of less than a day's duration) did not come within the ruling in Rosenberg v. Fleuti, 374 U.S. 449, because it was not until the return from that absence that respondent was first admitted to the United States for permanent residence. At the close of the hearing, respondent was asked whether he wished to appeal from the special inquiry officer's decision, and he replied that . he would accept it. Two months later, however, he wrote •a letter to the Immigration and Naturalization Service, stating that he felt he had a basis on which to appeal. He wrote that he had first come to the United States with his father and had been admitted as the son of a citizen upon pre,sentation of his birth certificate; that he had never thereafter returned to Mexico to live; that he had registered for the draft in 1961 and shown proof of his legal status; and that the crime had not been committed within five years after his entry because he had been residing in the United States for about 18 years at the time of his con- viction. When this letter was brought to the special inquiry officer's attention some months later, he regarded it as a motion to reopen or reconsider, and gave the Service an opportunity to submit a brief in opposition, which it chose not to do. The special inquiry officer then reviewed the case, held that nothing in the motion warranted a change in his earlier decision, and denied the motion. Respondent appealed the denial to the Board. Upon consideration of all of the factors in this case, the Board sustained the appeal and remanded the case for exploration of the possibility that respondent might come within the provisions of section 101.1 (j) of Title 8, OFR, and be entitled to the benefit of the presumption that he had been law- fully admitted for permanent residence in 1948, if a, record of his ad- mission as the child of a citizen existed. The Board also pointed out that if it should be found respondent was entitled to the presumption of lawful admission provided for in section 101.1 (j), then a. departure

他在1962年8月之前许多年就已是美国的合法永久居民。听证中查明，答复人的父亲是美国本土出生的公民，在答复人出生前已在本国居住略超过20年，但其居住时间距达到16岁后满五年还差两个半月，而根据1940年国籍法第201(g)条的规定，这五年是答复人在国外出生时取得公民身份所必需的。对于答复人关于1962年8月之前即具有永久居民身份的主张，未作进一步探究。特别调查官认定答复人为外国人，如所指控可被驱逐出境，裁定1962年8月短暂离开美国（答复人作证称唯一目的是领取签证，持续时间不足一天）不属于Rosenberg v. Fleuti, 374 U.S. 449案的裁决范围，因为直到那次离境返回后，答复人才首次被准入美国永久居留。 听证结束时，答复人被问及是否希望对特别调查官的决定提出上诉，他回答说他将接受该决定。然而两个月后，他致信移民和归化局，称他认为自己有上诉的依据。他写道，他最初随父亲来到美国，并在出示其出生证明后作为公民之子被准入；此后他从未返回墨西哥居住；他于1961年进行了兵役登记并出示了其合法身份的证明；且该罪行并非在其入境后五年内实施，因为在其定罪时他已在美国居住约18年。当这封信在数月后引起特别调查官注意时，他将其视为重新开庭或重新考虑的动议，并给予该局提交反对意见书的机会，该局选择不提交。特别调查官随后审查了案件，认定动议中没有任何内容足以改变其先前的决定，并驳回了动议。 答复人向委员会提出对该驳回的上诉。在考虑本案所有因素后，委员会支持上诉，并将案件发回重审，以探究答复人是否可能属于《联邦法规汇编》第8编第101.1(j)条的规定范围，并且如果存在其作为公民之子被准入的记录，是否有权享有其于1948年合法入境永久居留的推定。委员会还指出，如果认定答复人有权享有第101.1(j)条规定的合法入境推定，那么基于对是否需要签证的法律或事实误解（前往墨西哥的唯一原因）而作出的离境

made on the basis of a legal or factual misapprehension as to the need for a visa (the sole reason for the trip to Mexico)? might possi- bly bring the return within the exception set forth in Rosenberg v. Fleuti,supra. A reopened hearing was held on April 10, 1967. Respondent, who was free on parole, still chose to proceed without counsel. At that hearing, respondent's father testified not only as to hia own citizenship, but as to the circumstances surrounding his bringing of respondent to the United States in the early part of 1948, and respondent's admission as the citizen son of a citizen father, after presentation of birth certifi- cates and other requested documentation. The special inquiry officer has stated :

是否可能使返回属于Rosenberg v. Fleuti, supra案所规定的例外情形。 1967年4月10日举行了重新开庭的听证。答复人当时处于假释状态，仍选择无律师代理进行程序。在该听证中，答复人的父亲不仅就其本人的公民身份作证，还就其于1948年初带答复人来美的情况，以及答复人在出示出生证明和其他所需文件后作为公民父亲的公民之子被准入的情况作证。 特别调查官陈述：

Exhibit 1t-14 establishes that respondent was definitely in the United States in 1948; it is an extract from the official records of the Los Angeles City Board of Education showing that he attended kin- dergarten at the Twenty -Eighth Street School in Los Angeles from September 13, 1948 to January 24, 1949. The special inquiry officer has further held that there is no evidence that fraud or misrepresentation was practiced in connection with respondent's admission into the United States at that time, and that although neither he nor his father was in possession of a United States passport, it would not have been required of them as United States citizens coining from Mexico. How- ever, no record of respondent's admission as a citizen, in or about 1948 or at any time, can be found (see Ex. R-1) , the only admission record pertaining to him being the one showing his entry on August 16, 1962 in possession of the nonquota immigrant visa he left the country to obtain (see Ex. R-2). 8 CFR 101.1 provides:

第1t-14号证据确立答复人1948年确实在美国；该证据是洛杉矶市教育委员会官方记录的摘录，显示他于1948年9月13日至1949年1月24日在洛杉矶第二十八街学校就读幼儿园。特别调查官还认定，没有证据表明在答复人当时入境美国时存在欺诈或虚假陈述，并且尽管他和他的父亲均未持有美国护照，但作为来自墨西哥的美国公民，他们本不需要护照。然而，无论在1948年前后或任何时间，均无法找到答复人作为公民被准入的记录（见Ex. R-1），与其有关的唯一入境记录是显示他于1962年8月16日持其为获取而离境取得的非配额移民签证入境的那份记录（见Ex. R-2）。 8 CFR 101.1规定：

Thus, as the special inquiry officer has pointed out, while respondent meets all of the other conditions, he cannot meet the initial requirement of the regulation, that he be "an alien for whom there exists a record of admission prior to September 11, 1957, as a United States citizen." It was the special inquiry officer's considered opinion that although he believed respondent's father's testimony that respondent was in fact admitted to the United States as a citizen in 1948, the testimony alone did not satisfy the requirement that there be a record of that admis- sion. In this we must concur. Although we are aware of no reported decisions squarely in point Matter of C—, 8 I. & N. Dec. 421, involving section 101.1(j) in an earlier form, is somewhat analogous to the situation before us. There a child born in Canada of a native born United States citizen mother (who did not have sufficient United States residence before the child's birth to enable the child to acquire citizenship at birth under the con- trolling law) and an alien father, was erroneously admitted as the cit- izen child of a United States citizen parent when brought to this coun- try at 21 months of age. Neither she nor her mother had a. United States passport; passports were not required of United States citizens seeking entry from Canada. The child, when applying for a certificate of citi- zenship, claimed that she had derived citizenship at the time of her- father's naturalization in 1949, and was faced with the problem of establishing that she had been lawfully admitted for permanent resi- dence, a prerequisite to citizenship derivation. It was her contention

因此，正如特别调查官所指出的，尽管被调查人符合所有其他条件，但他无法满足该法规的初始要求，即他必须是“一名有记录显示其在1957年9月11日之前作为美国公民获准入境的外国人”。特别调查官经过深思熟虑认为，尽管他相信被调查人父亲的证词，即被调查人事实上于1948年作为公民获准进入美国，但仅凭证词不足以满足必须有该入境记录的要求。对此我们必须表示同意。 尽管我们不知道有直接针对此问题的已公布裁决，但Matter of C—，8 I. & N. Dec. 421涉及较早形式的第101.1(j)条，与我们面前的情况有些类似。在该案中，一名在加拿大出生的儿童，其母亲为美国本土出生的公民（该母亲在子女生前没有足够的美国居留时间，以使子女根据当时的控制法律在出生时获得公民身份），父亲为外国人，该儿童在21个月大时被带到我国，被错误地作为美国公民父母的公民子女获准入境。她和她母亲都没有美国护照；当时从加拿大寻求入境的美国公民不需要护照。该儿童在申请公民身份证书时，声称她在其父亲1949年入籍时获得了公民身份，并面临证明她已合法获准永久居留的问题，而这是派生公民身份的先决条件。她的主张是

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that she was entitled to a presumption of such lawful admission under the provisions of 8 CFR 101.1 (j ), which did not then contain the exception to the passport requirement presently set forth in subsection (j) (1) (ii). This point was dealt with as follows:

她有权根据8 CFR 101.1(j)的规定推定获得此类合法入境，该规定当时不包含目前第(j)(1)(ii)小节中规定的护照要求例外。这一点处理如下：

We believe that the above rationale applies equally to the situation before us. Section 101.1(j), 8 CFR, is not merely a codification of previously existing law or interpretations; nor does the presumption therein set forth logically and automatically arise from the factual situation described. The presumption of lawful admission was created by the adoption of that regulation, which specifically sets forth the conditions that must be met before the presumption will come into being. These conditions, as has been pointed out, are clear and un- ambiguous; such exceptions as are permitted are specifically set forth in the text of the subsection itself. In the case before us, in spite of the strongly established. probability that respondent was admitted at the time and place and in the manner testified to by his father, he has been unable to present any docu- mentary evidence of such admission, and search of the record centers of the Immigration and Naturalization Service has failed to uncover a record of his admission, prior to September 11, 1957, as a United States citizen. Thus, he cannot meet an essential condition of section 101.1(j), and cannot benefit from the presumption that he was law- fully admitted for permanent residence in 1948. He must, therefore, be deemed to have first entered for lawful permanent residence when he returned from Mexico with a nonquota immigrant visa on August 16, 1962. In view of the above, we uphold as correct the finding of the special inquiry officer that respondent's return in 1962 was an entry, not excused by the exception set forth in Rosenberg v. Alma, supra. It must flow from this that respondent's conviction in October 1965, for a crime involving moral turpitude, for which he was sentenced to imprisonment for a term exceeding one year, was within five years of his entry, and he is therefore, deportable as charged.

我们认为上述理由同样适用于我们面前的情况。8 CFR第101.1(j)条不仅仅是先前存在的法律或解释的编纂；其中规定的推定也不会从所述事实情况中逻辑地、自动地产生。合法入境的推定是通过采纳该法规而创设的，该法规具体规定了推定产生之前必须满足的条件。正如已经指出的，这些条件清晰明确；所允许的例外在该小节本身的文本中具体规定。 在我们面前的案件中，尽管有强有力的证据表明被调查人是在其父亲作证的时间和地点以作证的方式获准入境的，但他未能提供任何此类入境的书面证据，而且对移民和归化局记录中心的搜查也未能发现其在1957年9月11日之前作为美国公民获准入境的记录。因此，他无法满足第101.1(j)条的基本条件，也无法受益于其于1948年合法获准永久居留的推定。因此，必须认定他首次为合法永久居留而入境是在1962年8月16日持非配额移民签证从墨西哥返回时。 鉴于上述情况，我们维持特别调查官的认定，即被调查人1962年的返回是一次入境，且不受Rosenberg v. Alma案（见上文）中规定的例外所豁免，该认定是正确的。由此必然得出，被调查人于1965年10月因涉及道德败坏的犯罪被定罪并被判处超过一年监禁，是在其入境后五年内，因此，他应如所指控那样被驱逐出境。

The special inquiry officer, having in mind that respondent has lived in the United States continuously since the age of four, and has all of his family here, has carefully explored every possible type of discretionary relief from deportation, and has correctly concluded that respondent cannot qualify for any form of relief. He has accord- ingly ordered deportation to the Republic of Mexico. His decision must be affirmed. ORDER: It is ordered that the decision heretofore entered herein by the special inquiry officer on April 10, 1967, and certified to this Board, be and the same is hereby in all respects affirmed.

特别调查官考虑到被调查人自四岁起一直连续居住在美国，且其所有家人都在这里，仔细探讨了每一种可能的酌情免于驱逐出境的救济方式，并正确地得出结论，即被调查人不符合任何形式的救济资格。因此，他下令将其驱逐至墨西哥共和国。其决定必须予以维持。 命令：兹命令，特别调查官于1967年4月10日在本案中作出的、并提交本委员会认证的决定，予以维持，且该决定在各方面均予维持。