tated malice killed [a person]." The respondent originally pleaded not guilty to the offense charged in the indictment. Subsequently he retracted his former plea of not guilty and entered a plea of guilty to Manslaughter First Degree, 29 Ohio Revised Code Annotated section 2901.06 (1954), a lesser included offense. He was sentenced to the Ohio State Reformatory for an intermediate period, not less than one year nor more than 20 years. The respondent is charged with being deportable under section 241(a)(4) of the Act as an alien in the United States who has been "convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more. . . .” The only issue to be resolved in this case is whether the crime of which the respondent was convicted is one involving moral turpitude. If there is a guilty plea to a lesser crime than that charged in the indictment, moral turpitude is assessed on the basis of the crime to which the alien pleaded guilty. Valenti v. Karmuth, 1 F. Supp. 370 (N.D.N.Y. 1932); Matter of V—T—, 2 I. & N. Dec. 213, 214-15 (BIA 1944). The respondent in this case was convicted under 29 Ohio Revised Code Annotated section 2901.06 (1954) of manslaughter in the first degree. Before the 1935 codification of the Ohio criminal law, manslaughter was defined as follows: "That if any person shall unlawfully kill another without malice, either upon a sudden quarrel, or unintentionally while the slayer is in the commission of some unlawful act, every such person shall be deemed guilty of manslaughter." It has been held by the Ohio courts that the present manslaughter statute encompasses the same offenses as did the crime of manslaughter at common law, including both voluntary and involuntary manslaughter. Patrick v. Baldridge, 107 Ohio App. 331, 159 N.E.2d 461 (1958); State v. McDaniel, 103 Ohio App. 1963, 1967, 144 N.E.2d 683 (1956). Murder and voluntary manslaughter are crimes involving moral turpitude; involuntary manslaughter is not. Matter of Lopez, 13 I. & N. Dec. 725 (BIA 1971). Because the Ohio statute includes both voluntary and involuntary manslaughter, one of which involves moral turpitude and the other of which does not, we must study the conviction record, i.e. the charge or indictment, the plea, the judgment or verdict, and the sentence, to determine under which aspect of the statute the respondent was convicted. Teper v. Miller, 87 F. Supp. 285, 287 (S.D.N.Y. 1949). The indictment charged that the respondent "unlawfully, purposely and of deliberate and premeditated malice killed [a person]." This is a first degree murder charge. However, the respondent was not convicted 2 No person shall unlawfully kill another. Whoever violates this section. . . [exceptions not relevant here] is guilty of manslaughter in the first degree, and shall be imprisoned not less than one nor more than 20 years. of first degree murder. He was convicted of first degree manslaughter, a lesser included offense. Therefore, we must disregard those allegations contained in the indictment which are pertinent only to the greater crime but not to the lesser. Matter of Beato, 10 I. & N. Dec. 730, 732-3, 735 (S.I.O.; BIA 1964). See Matter of W-, 4 I. & N. Dec. 241, 245 (BIA 1951). The Ohio manslaughter statute makes no mention of malice. It simply states that manslaughter is the unlawful killing of another person, not amounting to murder. 29 Ohio Revised Code Ann. §2901.06 (1954), supra. For the respondent to have been convicted of manslaughter in the first degree, he had to have been convicted of unlawfully killing another, either upon a sudden quarrel (voluntary), or unintentionally while in the commission of some unlawful act (involuntary). State v. McDaniel, supra. It is not alleged in the indictment that the respondent was involved in the commission of some unlawful act other than the unlawful killing. It appears, then, that the conviction was not for involuntary manslaughter, because a necessary element of that crime was not alleged in the indictment. Id. The respondent was indicted for murder, a voluntary act by definition. Both because it appears that he was not convicted of involuntary manslaughter, and because he was indicted for a voluntary crime, our examination of the conviction record leads us to the conclusion that the respondent was convicted of voluntary manslaughter. In Matter of S—, 2 I. & N. Dec. 559 (A.G. 1947), an Ohio case involving the predecessor to section 2901.06, which was similar in wording and history to the statute here involved, the Attorney General found that the convictions did involve voluntary manslaughter because the original indictments, for second degree murder in that case, clearly charged the alien with voluntary killing. Matter of Lopez, supra, is distinguishable, although the Alaska statute involved there is virtually identical to the one in the present case, because the manslaughter indictment in that case did not clearly charge that respondent with a voluntary killing. In sum, we find that the respondent's deportability as charged in the order to show cause has been established by evidence which is clear, convincing, and unequivocal. Moreover, we agree with the immigration judge that the respondent is ineligible for discretionary relief and for temporary withholding of deportation under section 243(h) for the reasons stated by the immigration judge in his excellent opinion. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. MATTER OF DUNCAN In Visa Petition Proceedings A-20657788 Decided by Board April 21, 1975 On appeal, petitioner seeks the approval of a visa petition to accord his son preference classification under section 203(a)(2) of the Immigration and Nationality Act. The appeal is sustained and the petition is approved because beneficiary was shown to have been legitimated under the laws of Liberia as established by: (1) a certified copy of the court order of legitimation (while the beneficiary was under age 18), (2) a certified copy of the registration of the beneficiary's birth, and (3) a court order certifying petitioner as the natural father of the beneficary. ON BEHALF OF PETITIONER: Donald Garfinkle, Esquire 3111 Cadillac Tower This is an appeal from an order of the district director denying a visa petition to accord the beneficiary status as an immediate relative pursuant to section 203(a)(2) of the Immigration and Nationality Act as the child of a lawful permanent resident of the United States. The visa petition was denied on the ground that an illegitimate child cannot qualify as a child under the Immigration and Nationality Act unless legitimated under the law of the father's or child's residence or domicile and the child is in the legal custody of the legitimating parent at the time of such legitimation. The appeal will be sustained. The petitioner, a native of the Republic of Liberia, is a permanent resident of the United States. He filed a petition to classify the status of his alien relative for issuance of an immigrant visa. The beneficiary is a native and citizen of the Republic of Liberia, born October 24, 1958, male. The petitioner has acknowledged that he has never married the beneficiary's natural mother. He contends, however, that he has legitimated the child under the Liberian Code of Laws. He has submitted (1) a certified copy of an order of the Probate Court, Montserrado County, Republic of Liberia, dated May 30, 1974, legitimating the petitioner's illegitimate child, Maxwell Duncan, (2) a certificate of registration of birth of Maxwell Duncan, National Health Service, Republic of Liberia, and (3) an order of the Judicial Branch, Territorial Court, Bomi Terit ory, Republic of Liberia, dated December 28, 1973, certifying that the petitioner and Mary Debar are the natural parents of Maxwell Duncan, that Mary Debar has given her consent for Maxwell Duncan to join his father in the United States, and the court granted Maxwell Duncan permission to join his father in the United States. We have carefully reviewed the record and examined the court order legitimating the beneficiary. We are satisfied that the legitimation of the beneficiary conforms with the requirements of Title 18, Liberian Code of Laws of 1956, section 530.1 It is concluded that under Title 18, section 530, Liberian Code of Laws (1956), the beneficiary in this case has been legitimated and qualifies as a child within the meaning of section 101(b)(1)(C) of the Immigration and Nationality Act. The appeal will be sustained. ORDER: The appeal is sustained, and the visa petition is approved. 'See Liberian Supreme Court's decision in Prout v. Cooper, 5 Liberian Law Reports 412 (1937). MATTER OF CASTILLO-PINEDA In Exclusion Proceedings A-18326930 Decided by Board April 16, 1975 Applicant initially entered the United States for permanent residence on January 10, 1969 as the spouse of a United States citizen. The marriage took place in the United States July 8, 1968, but was annulled ab initio for fraud on January 15, 1969. Applicant subsequently applied for admission on August 17, 1969, follwing a 10 day vacation in Mexico as a returning resident alien. He was found excludable under section 212(a)(20) of the Immigration and Nationality Act for lack of a valid immigrant visa, and under section 212(a)(14) of the Act, for lack of a valid labor certification. This decision was correct, because since the marriage was annulled ab initio, no basis exists for his classification as a permanent resident alien nor is he exempt from the labor certification requirement. EXCLUDABLE: Act of 1952-Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant— not in possession of a valid immigrant visa. Act of 1952-Section 212(a)(14) [8 U.S.C. 1182(a)(14)]—Immigrant— not in possession of a valid labor certification. ON BEHALF OF SERVICE: ON BEHALF OF APPLICANT: Soll J. Schnitz, Esquire 600 South Michigan Avenue Chicago, Illinois 60605 This is an appeal from a decision of an immigration judge dated November 19, 1969, finding the applicant excludable under the provisions of section 212(a)(20) and section 212(a)(14) of the Immigration and Nationality Act. On June 14, 1972, the Board entered an order terminating the exclusion proceedings pursuant to the unreported decision of Matter of Lerma-Acosta, A-30749574 (BIA June 13, 1972. The Board deferred execution of its order in this case indefinitely until it considered and rendered a decision on the Service motion for reconsideration in the unreported decision of Matter of Juan Hernandez-Almaquer, A-14231996 (BIA June 14, 1972), involving the same issue. In Matter of Maldonado-Sandoval, 14 I. & N. Dec. 475 (BIA October 31, 1973 as amended June 7, 1974) and unreported Matter of Juan HernandezAlmaquer, A-14231996 (BIA October 31, 1973), the Board receded from the position taken earlier in Matter of Lerma-Acosta, supra. On Feb |