Interim Decision #1992
MATTER OF NAND
In Deportation Proceedings
A-17955476
Decided by Board July 24, 1.969
A foreign record of respondent's conviction in Fiji, signed and attested to by
the clerk of court as a certified true copy, accompanied by a cerLifickilion
of signature and position of the clerk of court made by an American
vice-consul, is properly authenticated under Rule 44(a) (2) of the Federal
Rules of Civil Procedure, as amended December 31, 1967, so as to support
an order of deportation based on such criminal conviction.
CHARGE:
Order: Ac of 1052—Section 241 (a) (1) [8 U.S_C. 1251(a) (1)1—Excludable at time of entry—crime conviction: breaking,
entering and larceny in violation of sections
327 (a) and 288 (1) of the Penal Code of Fiji.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Emanuel P. Razeto, Esquire Irving A. Appleman
1414 Central Building Appellate Trial Attorney
Oakland, California 04617 Stephen M. Suffin
(Brief filed) Trial Attorney
(Brief filed)
The case comes forward on appeal from the order of the special inquiry officer entered January 8, 1969 finding the respondent
deportable on the charge stated in the order to show cause, denying the respondent's application for permanent resident status
under section 245 of the Immigration and Nationality Act, granting voluntary departure in lieu of deportation on or before February 8, 1969 with the further order that if the respondent failed
to depart when and as required, he be deported to Canada, alternatively, to Fiji.
The record relates to a native of Fiji, a subject of Great
Britain, 33 years old, male, married, who last entered the United
States at Blaine, Washington on March 24, 1967 as a temporary
visitor. On January 14, 1958 the respondent was convicted by , the
Interim Decision #1992
Magistrate Court of the First Class at Suva, Fiji, of breaking,
entering and larceny committed January 12, 1958 and was sentenced to 12 months imprisonment. His appeal on the ground that
the sentence was too severe for the crime committed was dismissed on February 10, 1958 (Ex. 4).
The crime of breaking, entering and larceny is a crime involving moral turpitude. Inasmuch as the punishment actually
imposed was more than six months, the crime is not classifiable
as a petty offense under the provisions of section 1.3 of Title 18
of the United States Code.' The respondent is deportable as
charged in the order to show cause. The respondent has been convicted of a crime involving moral turpitude not classifiable as a
petty offense, and since he is not eligible for a waiver thereof
under section 212 (h) because of the lack of the required familial
tics in the United States, he is ineligible for adjustment of status
to that of a permanent resident. His application for that relief
was properly denied. However, the special inquiry officer has
granted the respondent voluntary departure in lieu of deporta
tion. The Service is not opposed to that grant. The grant of voluntary departure will be approved.
Counsel in his brief and at oral argument contends that the
proof of conviction adduced at the hearing (Ex. 4) is insufficient
to support an order for deportation inasmuch as it is not accompanied by a certificate showing that the attesting officer had custody of the record as required by Rule 44 of the Federal Rules of
Civil Procedure. In support of this contention he cites Chew v.
Boyd, 309 F.2d 857 (9 Cir., 1962), and McNeil v. Kennedy,
289
F.2d 323 (D.C. Cir., 1962).
Rule 44 of the Federal Rules of Civil Procedure as amended
December 31, 1967 (Title 28, Appendix, Fed. R. Civ. P., 1964 ed.
Supp. III 1965-1967) deals with authentication of two types of
official records. Rule 44(a) (2) made a change in the requirement
for authentication of foreign official records as contrasted with
authentication of domestic records, governed by Rule 44(a) (1).
which adhered to the rule previously set forth in Chew v. Boyd,
309 F.2d 857. The requirement relating to authentication of foreign
official records now merely requires an official publication thereof,
or a copy thereof, attested to by a person authorized to make the
attestation, and accompanied by a final cerification as to the genuineness of the signature and official position (i) of the attesting ,
person, or (ii) of any foreign official whose certificate of genuine-
1 Matter of G----A—,
7 I. & N. Dec. 274, 375; Matter of M—, 8 I. & N.
Dee. 453, 455.
337
Interim Decision # 1992
Magistrate Court of the First Class at Suva, Fiji, of breaking,
entering and larceny committed January 12, 1958 and was sentenced to 12 months imprisonment. His appeal on the ground that
the sentence was too severe for the crime committed was dismissed on February 10, 1958 (Ex. 4).
The crime of breaking, entering and larceny is a crime involving moral turpitude. Inasmuch as the punishment actually
imposed was more than six months, the crime is not classifiable
as a petty offense under the provisions of section 1.3 of Title 18
of the United States Code.' The respondent is deportable as
charged in the order to show cause. The respondent has been convicted of a crime involving moral turpitude not classifiable as a
petty offense, and since he is not eligible for a waiver thereof
under section 212 (h) because of the lack of the required familial
ties in the United States, he is ineligible for adjustment of status
to that of a permanent resident. His application for that relief
was properly denied. However, the special inquiry officer has
granted the respondent voluntary departure in lieu of deportation. The Service is not opposed to that grant. The grant of voluntary departure will be approved.
Counsel in his brief and at oral argument contends that the
proof of conviction adduced at the hearing (Ex. 4) is insufficient
to support an order for deportation inasmuch as it is not accompanied by a certificate showing that the attesting officer had custody of the record as required by Rule 44 of the Federal Rules of
Civil Procedure. In support of this contention he cites Chew v.
Boyd, 309 F.2d 857 (9 Cir., 1962), and McNeil v. Kennedy,
289
F.2d 323 (D.C. Cir., 1962).
Rule 44 of the Federal Rules of Civil Procedure as amended
December 31, 1967 (Title 28, Appendix, Fed. R. Civ. P., 1964 ed.
Supp. III 1965-1967) deals with authentication of two types of
official records. Rule 44(a) (2) made a change in the requirement
for authentication of foreign official records as contrasted with
authentication of domestic records, governed by Rule 44(a) (1),
which adhered to the rule previously set forth in Chew v. Boyd,
309 F.2d 857. The requirement relating to authentication of foreign
official records now merely requires an official publication thereof,
or a copy thereof, attested to by a person authorized to make the
attestation, and accompanied by a final cerification as to the genuineness of the signature and official position (i) of the attesting
person, or (ii) of any foreign official whose certificate of genuine-:
1 Matter of G—A—, 7 1. & N. Dec. 274, 375; Matter of M—,
8 I. & N.
Dec. 453, 455.
337
Interim Decision #1992
ness of signature and official position relates to the attestation or
is in a chain of certificates of genuineness of signature and official
position relating to the attestation. A final certificaion may be
made by a secretary of embassy or legation, consul general, vice
consul or consular agent of the United States or a diplomatic or
consular officer of the foreign country assigned or accredited to the
United States.
The Notes of the Advisory Committee on Rules states that the
reference to authentication by "the officer having legal custody of
the record," hitherto appearing in Rule 44, has been found inappropriate for official records kept in foreign countries where the
assumed relationship between custody and the authority to attest
does not obtain. Accordingly it is provided that an attested copy
may be obtained from any person authorized by the law of the
foreign country to make the attestation regardless of whether he
is charged with responsibility for maintaining the record or keeping it in his custody. The Notes of the Advisory Committee go on
to state that the difficulties are met under the amended rule by
eliminating' the element of the authority of the attesting foreign
official from the scope of the certifying process, and by specifically permitting the usage of the chain-certificate method. Under
this method, it is sufficient if the original attestation purports to
have been issued by an authorized person and is accompanied by
a certificate of another foreign official whose certificate may in
turn be followed by that of a foreign official of higher rank. The
process continues until a foreign official is reached as to whom
the United States foreign service official has adequate information on which to base a "final certification."
In she instant_ case, the conviction record (Ex. 4) is signed by
the clerk of the court as a certified true copy, followed by the seal
of the magistrate's court, followed by a certification of an American vice consul that Ilaisa Seru Tulele, whose true signature and
official seal are subscribed and affixed to the annexed document
was, on the 24th day of May 1968, the date thereof, the Clerk of
the Court, duly commissioned and qualified, to whose official acts
faith and credit are due. Thus the authentication of the foreign
document conforms fully with the Rule 44 (a) (2) as amended
February 28, 19.66, effective July 1, 1966. 2
ORDERED: It is ordered that the appeal be and the same is
hereby dismissed.
2 The provisions of 8 CFR 287.6 as amended November 29, 1967, embody
the same distinction as amended Rule 44 as to uornestic records and foreign
records.
338
Interim Decision #1992
It is further ordered that, pursuant to the special inquiry
officer's order, the respondent be permitted to depart from the
United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by
the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the specialinquiry officer's order. •
