Interim Decision #2559
MATTER OF LEYVA
In Deportation Proceedings
A-14170842
Decided by Board January 18, 1977
(1) Denial of respondent's request for a second continuance of his deportation hearing was
proper where no showing was made that respondent was prevented from presenting
evidence or testimony as a result.
(2) Once alienage has been established, it is presumed to continue absent evidence to the
contrary. Respondent failed to offer any evidence of United States citizenship, and that
fact will not be presumed.
(3) Convictions for oral sex perversion under section 288a of the California Penal Code and
for burglary with intent to commit theft under section 459 of the California Penal Code
are convictions for crimes involving moral turpitude, not arising out of a single scheme
of criminal misconduct and subject respondent to deportability under section 241(a)(4) of
the Immigration and Nationality Act.
(4) A conflict in evidence tzunceining aliases used by respondent will be resolved against
respondent where a deportation charge is based on documentary evidence bearing a
name identical to that of respondent, absent evidence that it does not relate to him.
(5) Where each document relating to the record of conviction is accompanied by an entry
that the copy is a true and accurate copy of the original and is signed by a deputy of the
Clerk of Court, it will foe presumed that the custody requirement of Rule 44 of the
Federal Rules of Evidence has been met.
(6) Under Matter of Silva, Interim Decision 2532 (BIA 1976), respondent appears
eligible for discretionary relief under section 212(c) of the Act, and the record will be
remanded to afford him an opportunity to apply for a section 212(c) waiver and the entry
of a new decision.
CHARGE:
Order: Act of 1952—Section 241(a)(4) (8 U.S.C. 1251(a)(4)j—After entry, convicted of
two crimes involving moral turpitude not arising out of a single
scheme of criminal misconduct.
ON BEHALF OF RESPONDENT: Peter A. Schey, Esquire
3040 Imperial Avenue
San Diego, California 92102
BY: Milhollan, Chairman; 'Wilson, Torrington, Maniatis, and Appleman, Board Members
This is an appeal From an order of an immigration judge dated June
16, 1976, which found the respondent deportable as charged under
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section 241(a)(4) of the Immigration and Nationality Act as an alien
who, after entry, had been convicted of two crimes involving moral
turpitude not arising out of a single scheme of criminal misconduct. He
found the respondent ineligible for any form of discretionary relief. The
respondent has appealed from that decision. The record will be remanded.
The respondent, a native and citizen of Mexico, was admitted to the
United States for permanent residence on July 1, 1964. On May 19,
1976, the respondent appeared before the immigration judge and was
granted a continuance until Tune 16, 1976. On that date the respondent
appeared for the hearing accompanied by counsel. His request for a
second continuance was denied.
Counsel contends on appeal that the immigration judge violated the
regulations and the respondent's rights of equal protection and due
process when he denied the respondent's request for a second continuance. He states that he was not able to meet with his client personally or review the Order to Show Cause nor had he received copies of the
convictions upon which deportation was based until the morning of the
hearing.
The regulations provide that a continuance may be granted in the
immigration judge's discretion if good cause is shown. 8 C.F. R. 242.13.
A decision to deny a continuance will not be overturned on appeal unless
it appears that the respondent was deprived of a full and fair hearing.
Matter of Namio, Interim Decision 2221 (BIA 1973).
At the time of the initial hearing on May 19, 1976, the respondent had
already obtained counsel, but he was granted a continuance to prepare
for the hearing. The record does not indicate that the respondent was
prevented from presenting evidence or testimony. See Olvera v. 1NS,
504 F.2d 1372 (6 Cir. 1974); Moutsos v. Shaughnessy,
149 F. Supp. 116
(S.D. N.Y. 1957). We conclude that the immigration judge properly
denied the motion for a continuance.
As proof of alienage, the Service introduced into evidence a 1964 visa
(Ex. 3) containing a photograph allegedly bearing a resemblance to the
respondent and a name identical to his. The respondent admitted at the
hearing that the visa related to him and that it correctly listed his
birthplace as Mexico (Tr. pp. 8-9).
Once birth in a foreign country is established, there is a presumption
of alienage and the respondent has the burden of going forward with the
evidence to establish a claim to United States citizenship. Wisidis v.
Holland,
245 F.2d 812 (3 Cir. 1957); Matter of Vergara, Interim Decision 2408 (BIA 1975); Matter of Tijerina-Villareal, 13 I. & N. Dee. 327
(BIA 1969). The respondent refused to answer when asked by the
immigration judge if he were a United States citizen (Tr. p. 9). We note
the argument that the respondent's failure to testify was made the basis
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of an adverse inference. It has been clearly established that the respondent was born in Mexico and became a resident alien in the United
States in 1964. In effect, we are asked to indulge a presumption that in
the intervening time he became a United States citizen. This we refuse
to do. He has made no offer in this connection. Once alienage is established, it is presumed to continue absent countervailing evidence.' Farrell v. United States, 381 F.2d 368 (9 Cir_ 1967), cert. denied,
389 U.S.
963 (1967). U.S. ex rel. Bilokumsky v. Tod,
263 U.S. 149 (1923). We
conclude that the Service met its burden of proving the alienage of the
respondent.
The record contains certified copies of judicial documents relating to
convictions for oral sex perversion under section 288a of the California
Penal Code (Ex. 4) and for burglary with intent to commit theft under
section 459 of the California Penal Code (Ex. 5). Burglary with intent to
commit theft is a crime involving moral turpitude. Matter of L—,
6 I. &
N. Dec. 666 (BIA 1955); Matter of Z—,
5 I. & N. Dec. 383 (BIA 1953).
The crime of oral sex perversion as defined in section 288a 2 is similar to
other crimes which we have held to involve moral turpitude. See Matter
of K — , 3 T _ & Th.r. 575 (BIA 1949) (solicitation to commit sodomy);
Matter of A—, 3 I. & N. Dee. 168 (BIA 1948) (adultery, lewdness). See
also Velez-Lozano v. INS,
463 F.2d 1305 (D.C. Cir. 1972) (consensual
sodomy).
' Counsel relies on Sint v. INS, 500 F.24 120 (1 Cir. 1974) for the proposition that the
Government must prove that the respondent is currently an alien. In that case, the
Second Circuit held that an admission of foreign citizenship made by the respondent four
years prior to the deportation hearing did not, of itself, constitute dear, convincing, and
unequivocal evidence of alienage for the purpose of determining deportability. The court
held that the Service must demonstrate that the respondent remained an alien during the
period of time at issue. We are not persuaded by Sint to depart from the well-established
rule that once the Service establishes birth in a foreign country, the respondent must
come forward with evidence of a claim to United States citizenship. Furthermore, Farrell
v. United States, infra, would control here since this case arises in the Ninth Circuit.
2 Section 288a provides that:
Any person participating in an act of copulating the mouth of one person with the
sexual organ of another is punishable by imprisonment in the state prison not to exceed
15 years or by imprisonment in the county jail not to exceed one year provided,
however, whenever any person is found guilty of the offense specified herein, and it is
charged and admitted or found to be true that he is more than 10 years older than his
coparticipant in such an act, which coparticipant is under the age of 14, or that he has
compelled the other's participation in such an act by force, violence, duress, menace, or
threat of great bodily harm, he shall be punished by imprisonment in the state prison for
not less than three years. The order of commitment shall expressly state whether a
person convicted thereunder is more than 10 years older than his coparticipant and
whether such coparticipant is under the age of 14_ The order shall also state whether a
person convicted hereunder has compelled copartieipation in his act by force, violence,
duress, menace, or threat of great bodily harm.
Section 288a was repealed in 1975. See 1975 California Laws ch. 71.
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With respect to the conviction for oral sex perversion the information
lists the defendant as Mario Dominguez Leyva; the probation order
adds the alias Jose Mario Leyva (Ex. 4). The complaint and probation
order with respect to the burglary conviction list Jose Mario Leyva as
the defendant (Ex. 5). A copy of a document from the FBI Identification
Division (Ex. 6) was received into evidence as proof that both names
were used by the respondent.
Counsel contends that the similarity of names in the record of conviction is not sufficient to establish that the respondent wa_q the subject of
the proceedings. We disagree. Where a deportation charge is based on
documentary evidence bearing a name identical to that of the respondent, the immigration judge may reasonably infer that such evidence
relates to the respondent in the absence of evidence that it does not
relate to him. United States v. Rebore-Delgado, 467 F.2d 11 (9 Cir.
1972); Matter of Li, Interim Decision 2451 (BIA 1975); Matter of
Choung , 13 I. & N. Dec, 794 (BIA 1971).
Although the record of conviction with respect to the burglary charge
lists a different first and middle name from that of the respondent, the
last name is identical. The FBI document indicat e s that Mario
Dominiguez Leyva and Jose Mario Leyva are the same person. Furthermore, the probation order relating to the conviction for oral sex
perversion lists both names. Although the respondent denied at the
hearing that the record of conviction with respect to the burglary charge
and the FBI document relate to him (Tr. pp. 12, 13), he introduced no
affirmative evidence in support of that statement. There is sufficient
evidence in the record indicating that the name Jose Mario Leyva is an
alias used by the respondent. We therefore conclude that the Service
met its burden of showing that the record of conviction relates to the
respondent and that he has been convicted of two crimes involving
moral turpitude.
Counsel further suggests that the court records have not been
properly authenticated since it has not been shown that the attesting
officer had custody of the original as required by Rule 44 of the Federal
Rules of Evidence. The record shows that each document relating to the
record of conviction is accompanied by an entry that the copy is a true
and accurate copy of the original and is signed by a deputy of the Clerk
of the Court. Where the certification is executed with reference to the
Clerk of the Court, it will be presumed that the custody requirement
has been met. Maroon v. INS,
364 F.2d 982 (8 Cir. 1966). 3
We hold that deportability has been established by clear, convincing,
and unequivocal evidence. Woodby v. INS,
385 U.S. 276 (1966).
3 Chung Young Chain v Road, 209 F2d 857 (9 Cir. 1962). cited by counsel, is distin-
guishable since the method of authentication was not identified in that case and the court
concluded that there was no way to be assured of the document's authenticity.
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The immigration judge held that the respondent was ineligible for any
form of discretionary relief. Since his decision, we have determined that
a lawful permanent resident with seven consecutive years of unrelinquished domicile in the United States who is charged with deportability
on the basis of one of the provisions enumerated in section 212(c) of the
Act is eligible for a waiver of inadmissibility under that section. Matter
of Silva-Ovalle, Interim Decision 2532 (BIA September 10, 1976). Inasmuch as it appeais that the respondent may qualify for discretionary
relief under section 212(c), we shall remand the record to the immigration judge so that the respondent may be afforded an opportunity to
make an application for a section 212(c) waiver.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with this opinion and the entry of a new
decision.
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