the law of Chihuahua it would be irrelevant in the present case if the petitioner had a son. We note that the record does not indicate that the petitioner does, in fact, have a son. In addition, the adoption decree states that the adoption occurred in accordance with Article 367 of the Civil Code and Article 886 of the Code of Civil Procedure of Chihuahua, which are the specific articles relied upon by the Library of Congress in determining that under the law of that state persons with descendants may adopt a minor child. Based on the foregoing evidence, the petitioner has met her burden of proving that the beneficiary is her child under section 101(b)(1)(E) of the Act. Consequently, the beneficiary qualifies for preference status as the petitioner's unmarried daughter under section 203(a)(2) of the Act. The District Director's decision will be affirmed. ORDER: The decision of the District Director is affirmed. ADDENDUM ADOPTION Chihuahua, Mexico The following appear to be the facts of this case: A child born on May 30, 1963, was adopted on July 15, 1975, by a married Mexican couple who were residents of the United States. At the time of the adoption the adoptive parents had a child of their own, born in the United States in 1948. The adopted child was the blood niece of the adopters. Taking into consideration the fact that article 381 of the Civil Code of the State of Chihuahua appears to imply that persons with descendants could not adopt, the requester wishes to ascertain (a) whether this is a valid adoption, and (b) if this adoption is more in the nature of a guardianship, since it can be revoked by agreement of both parties. I. The Law on Adoption At the time this adoption took place, in July of 1975, the law on adoption in Chihuahua was found within the Civil Code in force in that state as of April 22, 1974.1 Adoption proceedings were regulated by the provisions of the Code of Civil Procedure of this state of April 22, 1974.2 Although the provisions of article 381 of the Civil Code appear to imply that persons with descendants could not adopt, this is not the case in Chihuahua. An examination of articles 367 of the Civil Code and 886 of 2 'Código Civil para el E. L. y S. de Chihuahua [Editorial Cajica, Peubla, 1975]. Código de Procedimientos Civiles para el E. L. y S. de Chihuahua [Editoral Cajica, Puebla, 1976]. the Code of Civil Procedure would lead to the opposite conclusion. They provide as follows: Art. 367. Persons of legal age in the full exercise of their rights may adopt a minor or an incompetent even if the latter is of legal age, provided that the adopter is no less than 10 years older than the person to be adopted and that the adoption is beneficial to the latter. Art. 886. A person who intends to adopt must prove [the following in court]: I. That he or she is of legal age and at least 10 years older than the minor he or she intends to adopt, or, in the case of an incompetent, only that the adopter is of legal age. II. That he or she has sufficient means to provide for the support and education of the minor or the care and support of the incompetent, as if it were a child of his or her own, in accordance with the personal circumstances of the would-be adopter. III. That the adoption is beneficial to the person to be adopted. The initial petition shall contain the name and age of the minor or incompetent and the name and domicile of those persons who exercise parental authority or guardianship over the latter or the names of the persons or institutions in charge of his or her custody. Those Mexican states that forbid adoption by persons who have children of their own have a specific, not an implied, provision to this effect, such as those of article 390 of the Civil Code and article 935 of the Code of Civil Procedure of the State of Nuevo Leon.3 In addition, the Civil Code of Chihuahua presently in force does not contain any provision forbidding the adoption of a blood niece. II. Revocation of Adoption Concerning revocation of adoption, the Civil Code of Chihuahua provides as follows: Art. 382. Adoption may be revoked: I. When both parties agree to it, provided that the adopted is of legal age. If he or she is not of legal age, it is necessary that the person who granted consent to the adoption, as provided in article 374 (of this Code), grant consent [to the revocation of the adoption]. Art. 384. In the case of article 382-I of the Civil Code, the judge shall decree the revocation of adoption if he is convinced that the petition of the revocation is spontaneous and he finds that said revocation is suitable for the material and moral interests of the adopted. Art. 385. The decree of revocation of adoption annuls the adoption and restores the matters to the status they had prior to the adoption. An examination of the above provisions reveals that, as stated in the letter of inquiry, an adoption may be revoked by agreement of the parties; but it should be noted that said agreement is qualified by two requirements: (1) if the adopted person is not of legal age, consent to the 3 Código Civil para el E. L. y S. de Nuevo Leon [Editorial Cajica, Puebla, 1976]; Código de Procedimientos Civiles para el E. L. y S. de Nuevo Leon [Editorial Cajica, Mexico City, 1973]. revocation of the adoption must be given by the person who gave consent to the adoption, and (2) in spite of the consent of the parties to the revocation, it is up to the court to issue a decree of revocation only if it is convinced that the petition is spontaneous and it finds that it is in the material and moral interests of the adopted. The court, not the parties to the adoption, has the final word on revocations of adoptions. III. Adoption and Guardianship Under the laws of Chihuahua, as stated in its Civil Code, the law on adoption possesses certain characteristics also found in the law of guardianship (tutela), such as the fact that both the adopted person and the person under guardianship are subject to the parental authority of the adopter and guardian, respectively (arts. 372 and 426). On the other hand, guardianship is considered to be an obligation in the public interest and no one may be excused from performing it unless legal grounds exist (art. 429); the person who refuses to perform guardian duties without legal justification is responsible for damages and harm that may occur to the minor or incompetent (art. 430), while adoption is a voluntary act of the adopter (art. 367), not a mandatory obligation. Other substantial differences between these two institutions are that adoption does not terminate with the coming of legal age of the adopted person, while guardianship terminates when the ward reaches legal age or ceases to be incompetent (arts. 442, 621, and 622); that the adoption creates family bonds between the adopter and the adopted (art. 379) which do not exist between a guardian and his or her ward; and finally, that those rights concerning inheritance are found in adoption and not in guardianship. IV. Conclusions In concluding, the following may be stated under the laws of Chihuahua: (a) a final adoption decree of a child that is the blood niece of the adopters, that was duly registered in the office of the Civil Registry, constitutes a valid adoption in that state; (b) although an adoption may be revoked by the mutual consent of the parties involved, said consent is subject to the approval of the court; and (c) although adoption shares some of the legal characteristics of guardianship, there are substantial differences between these two institutions that distinctly separate them. Prepared by Armando E. Gonzalez Hispanic Law Division Law Library, Library of Congress MATTER OF DAVIS In Deportation Proceedings A-20489522 Decided by Board May 31, 1979 (1) For a marihuana conviction to fall within section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(11), the conviction must be for illicit possession or sale, and a conviction under a statute imposing strict liability for sale of marihuana is not sufficient. Lennon v. INS, 527 F.2d 187 (2 Cir. 1975). (2) Where a statute by its terms does not provide for a defense based on lack of guilty knowledge, and no judicial interpretations are offered showing that the statute has been interpreted to require guilty knowledge, the Service has not established illicit sale within section 241(a)(11) of the Act. Matter of Pasquini, Interim Decision 2496 (BIA 1976); Matter of Awadh, Interim Decision 2519 (BIA 1976), distinguished. (3) The Service's contention that Lennon v. INS, 527 F.2d 187 (2 Cir. 1975), which involved possession of marihuana, is distinguishable from a case involving the sale of marihuana, is rejected, because under section 21(1)(a) of the Poisons Act of Australia, the result would be the same in that conviction may be had for the sale of marihuana regardless of guilty knowledge. (4) Section 21(1)(a) of the Poisons Act of Australia, Act Number 31 of 1966, imposes strict liability for the sale of prepared opium or Indian hemp, and conviction under this section does not result in a conviction for illicit sale under section 241(a)(11) of the Act. Charge: Order: Act of 1952-Section 241(a)(11) [8 U.S. C. 1251(a)(11)]—Convicted of violation of law or regulation relating to illicit traffic in marihuana ON BEHALF OF RESPONDENT: Ronald H. Bonaparte, Esquire 3600 Wilshire Boulevard Los Angeles, California 90010 ON BEHALF OF SERVICE: George W. Masterton BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members In a decision dated November 23, 1976, an immigration judge found the respondent deportable as charged, denied his application for voluntary departure, and ordered him deported. The respondent appeals from this decision. The appeal will be sustained. The respondent is a 32-year-old native and citizen of Australia. He last entered the United States on June 16, 1973, as a visitor for pleasure, authorized to remain for six months. On November 7, 1974, an Order to Show Cause was issued charging him with deportability under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(11): one convicted of a violation of a law relating to illicit traffic in marihuana This charge was based on a conviction on November 14, 1969, in New South Wales, Australia, under The Poisons Act of Australia, Act Number 31 of 1966, Section 21(1)(a), involving the sale of Indian hemp. A deportation hearing was held on March 14, 1975, and June 2, 1976, before an immigration judge. The respondent was represented by counsel. The immigration judge found that the respondent had been convicted for the sale of Indian hemp, which he found to be marihuana within the meaning of section 241(a)(11) of the Act. The respondent's contentions that Indian hemp was not marihuana and that he had been convicted under a statute which imposed strict liability, in violation of the holding of Lennon v. INS, 527 F.2d 187 (2 Cir. 1975), were rejected. He also denied the respondent's application for voluntary departure under section 244(e) of the Act on the ground that a finding of good moral character was statutorily barred under section 101(f)(3) of the Act. On appeal, the respondent raises the same points that he raised at the deportation hearing: that he was not convicted for a marihuana law violation and that the statute under which he was convicted imposes strict liability. After reviewing the record, briefs submitted, and points raised at oral argument before the Board, we have concluded that the respondent is not deportable under section 241(a)(11) of the Act. Our conclusion follows from the finding that Section 21(1)(a) of the Poisons Act of Australia, under which the respondent was convicted, does not by its terms require knowledge as an element for conviction. Section 21(1)(a) states: (1) If any person— (a) manufactures, sells, or otherwise deals in prepared opium or Indian hemp; he shall be guilty of an offense against this Division. By its clear terms, the provision is singularly devoid of any element of knowledge or mens rea. By contrast, Sections 21(1)(c) and (d) of the Poisons Act state in part that if any person: (c) being the occupier of any premises permits those premises to be used for the purpose of the preparation of opium or Indian hemp; . . . [or] (d) being the owner or lessee of any premises knowingly permits . . . (Emphasis supplied.) he is guilty of an offense under that division. These provisions contain an element of knowledge, implicit or express. This indicates that innocent |