Article 39. Any Korean who is in the territory of a foreign country may submit notification or request in accordance with the provisions of this Law, to the chief of the Korean diplomatic and consular office in that country which has the jurisdiction over the district [in which such person resides]. Article 40. 1. If any Korean in a foreign country has had a document executed in respect to a matter to be notified in accordance with the established form of that country, he shall, within one month, present a copy of such document to the chief of the Korean diplomatic and consular office. 2. If no Korean diplomatic and consular office exists in that country, a copy of such document shall, within one month, be sent to the city mayor, town headman or village headman within whose administrative district such person has been domiciled. Article 41. The chief of the Korean diplomatic and consular office who has received papers in accordance with the provisions of the preceding two articles shall, within one month, send them through the Minister of Foreign Affairs to the city mayor, town headman or village headman, courts, or other government agencies having jurisdiction over the domicile of such person. Article 79. 2. The notification of divorce by agreement shall not be accepted unless its truth and correctness has been affirmed. As noted above, both the Civil Code and Family Registration Law authorize married couples to divorce themselves in Korea by registering their signed divorce agreement at the proper Family Registration Office with no other court action being required. However, the above two laws are silent on the question of whether or not these laws are applicable to a divorce by mutual consent between Korean nationals abroad. In the absence of the specific provisions under the above laws, the Family Registration Practice Manual of 1970, compiled by three government officials in charge of family registration affairs in the Court Administration Office states: 3 nevertheless, Article 814 of the Civil Code 3 concerning the notification of a marriage between Korean nationals abroad, as well as Article 39 of the Family Registration Law, are construed to be applicable to a divorce by mutual consent between Korean citizens residing in a foreign country. It is further construed that the notification of such divorce should be given to the Korean diplomatic and consular office having jurisdiction over the parties even though the divorce is not secured in a manner permissible by a particular foreign country." Another manual written in 1970 by a Korean law professor and an official of the Court Administration Office states further that "in accepting the notification of divorce by agreement, the consular officer is 3 3 Article 814 of the Civil Code provides: 1. "The notification of a marriage between Korean nationals who are in the territory of a foreign country may be submitted to the Korean Ambassador, Minister, or a Korean consul stationed in that country." 2. "The Ambassador, Minister, or a consul who has received the notification mentioned in the preceding paragraph shall, without delay, forward the same to the proper Family Registration Office of the home country." 4 * Ch'oe Su-in and others, Hangul hochōk silmu ch'ongso [Family Registration Practice Manual in Korean Characters], Seoul, Pobchong Ch'ulp'ansa, 1970, p. 128. required to verify the truth and correctness of the papers before him by virtue of Article 79-2 of the Family Registration Law." 5 Professor Kim Chu-su elaborates further on this subject in his commentary on the Law of Relatives and Succession by saying that: In cases where there exists no Korean diplomatic and consular office in a foreign country, the notification of divorce, and a notorized statement proving the existence of the intention to divorce between both parties, may be directly sent to the proper Registration Office having jurisdiction over the husband's domicile [Article 40, paragraph 2 of the Family Registration Law]. In a foreign country like Japan where divorce by agreement is permitted, however, the parties to a divorce should apply to a Japanese Government agency for the issuance of a document certifying the validity of such divorce; the certified document then should be forwarded to the Korean consular office in Japan or directly to the competent Registration Office in Korea having jurisdiction over the husband's domicile [Article 40, paragraph 1 of the Family Registration Law]. So far as we are able to ascertain from the Law Library's collection, neither official legal opinions expressed by the Minister of Justice on this subject nor administrative directives issued by the Minister of Foreign Affairs has been reported. This was reaffirmed by a telephone conversation with the Consul General in the Korean Embassy, Washington, D. C.7 5 Kim Chu-su and Pak Ch'on-sik, Kaeiong hangul hochõk silmu chõnso [Revised Family Registration Practice Manual in Korean Characters], Seoul, Hanguk Sabop Haengchong Hakhoe, 1970, p. 240-250. 6 Kim Chu-su, Chusok ch'inzok sangsokpop [Commentary on the Law of Relatives and Succession], Seoul, Pommunsa, 1969, p. 217. 7 In the absence of any administrative guidance from the superior officer, the Consul General in Washington indicated that day-to-day handlings of cases involving domestic relations are based on the above two manuals. Telephone conversations were exchanged with Sung Kwoo Kim, Consul General in Washington on August 27, 1971. MATTER OF BARRAGAN-GARIBAY In Exclusion Proceedings A-20000136 Decided by Board August 7, 1974 The applicant was returning to the United States and presented a false Alien Registration Card, Form I-151. He was paroled into the United States for prosecution. He was thereafter convicted in a criminal proceeding for a violation of section 275 of the Immigration and Nationality Act, (8 U.S.C. 1325). Even though he was paroled into the United States he was prosecuted for an illegal entry. Therefore, the exclusion proceedings will be terminated because under the doctrine of collateral estoppel, the Government is prevented from denying that applicant made an entry. EXCLUDABLE: Act of 1952-Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—Immigrant with no valid immigrant visa and not exempt therefrom. ON BEHALF OF APPLICANT: John McGonagle, Esquire 1701 Pennsylvania Avenue N.W. Washington, D. C. 20006 Lewis A. Wenzell, Esquire 325 West "F" Street San Diego, California 92101 ON BEHALF OF SERVICE In an undated decision, the immigration judge found the applicant excludable as charged. The applicant has appealed from that decision. The appeal will be sustained, and the proceedings will be terminated. The applicant is a 22-year-old alien who is a native and citizen of Mexico. The facts are not in dispute and are as follows. The applicant came to the port of entry in San Ysidro, California on August 26, 1972, for the purpose of entering the United States and returning to San Fernando, California where he had been living for some time. When he applied for admission he presented a false Alien Registration Receipt Card, Form I-151, which he had purchased. The applicant was paroled into the United States for prosecution and was confined in jail. On August 28, 1972, a complaint was issued charging the applicant with entering the United States on August 26, 1972 by knowingly and willfully presenting a counterfeit Alien Registration Receipt Card in violation of section 275 of the Immigration and Nationality Act (8 U.S.C. 1325). On September 12, 1972, the applicant was convicted of the preceding criminal charge upon his plea of guilty. He was sentenced to imprisonment for 21 days and thereafter served his sentence. The issue on appeal is whether the applicant is properly in exclusion proceedings. Counsel argues that the applicant's conviction for illegal entry is a conclusive determination that the alien has made an "entry" into the United States, and that therefore the applicant is not a proper subject for exclusion proceedings. The Service contends that the conviction has no effect on the applicant's status as a parolee into the United States. It is well established that parole into the United States is not an "entry" for purposes of the immigration laws. Kaplan v. Tod, 267 U.S. 228 (1925); Leng May Ma v. Barber, 357 U.S. 185 (1958). The term "entry" is defined in section 101(a)(13) of the Act. The applicant cannot be held in exclusion proceedings if he made an "entry" into the United States at San Ysidro on August 26, 1972, and if he has not departed since that date. See Matter of Farmer, 14 I. & N. Dec. 737 (BIA 1974); Matter of Hoffman-Arvayo, 13 I. & N. Dec. 750 (BIA 1971). The section 101(a)(13) definition of "entry is applicable to all sections of the Act, and therefore is used in making determinations under the criminal provisions of section 275 of the Act. Consequently, the court's determination that the applicant made an illegal "entry" under section 275 of the Act, if binding in these exclusion proceedings, would require termination of the proceedings. The doctrine of collateral estoppel is derived from the doctrine of res judicata. According to the doctrine of collateral estoppel, when a matter previously litigated, and necessary to the judgment in the prior case, arises in the course of subsequent litigation between the same parties upon a different cause of action, the judgment in the prior case operates as an estoppel. Cromwell v. County of Sac, 94 U.S. 351, 353 (1877); Tait v. Western Md. Ry. Co., 289 U.S. 620, 623 (1933); Commissioner v. Sunnen, 333 U.S. 591, 598 (1948); Lawlor v. National Screen Service Corp., 349 U.S. 322, 326 (1955). The policy basis for the doctrine of collateral estoppel is the interest of the public and the parties in preventing relitigation of previously determined issues. "Ordinarily a court decision will be res judicata in a later administrative proceeding in the same circumstances in which it would be res judicata in a later judicial proceeding." 2 K. Davis, Administrative Law Treatise, section 18.11, at 619 (1958, Supp. 1970). We have applied the doctrine of collateral estoppel to prevent the relitigation of issues that have been determined in previous court litigation between the Government and the alien. Matter of Z—, 5 I. & N. Dec. 708 (BIA 1954); Matter of Campos, 13 I. & N. Dec. 148 (BIA 1969); Matter of Grandi, 13 I. & N. Dec. 798 (BIA 1971). The doctrine has also been applied by federal courts to prevent the relitigation of issues determined in previous court proceedings under the immigration laws. Pena-Cabanillas v. United States, 394 F.2d 785 (9 Cir. 1968); United States v. Rangel-Perez, 179 F. Supp. 619 (S.D. Cal. 1959); see Anselmo v. Hardin, 253 F.2d 165 (3 Cir. 1958). In Matter of Grandi, supra, we concluded that collateral estoppel was applicable to exclusion proceedings. Our holding in that case was that the applicant was estopped from contending that he was brought to the United States against his will where, in criminal proceedings, a court had considered the same contention and had found that the applicant came to the United States voluntarily. In Title v. INS, 322 F.2d 21 (9 Cir. 1963), rev'g Matter of T—, 9 I. & N. Dec. 127 (BIA 1960), the court held that a determination of Communist Party membership in a denaturalization proceeding did not estop the alien from disputing such membership when the issue arose in a subsequent deportation hearing. We distinguished that case in Matter of Grandi, supra. Collateral estoppel is not an inflexible doctrine. It may be modified or rejected when its application "would contravene an overriding public policy or result in manifest injustice." Tipler v. E. I. duPont de Nemours & Co., 443 F.2d 125, 128 (6 Cir. 1971). In the present case, the Government brought the charge of illegal entry, and the court accepted the applicant's plea of guilty. As a consequence of the conviction for illegal entry, the applicant served a prison sentence, and he is now subject to the provision of section 275 which makes any subsequent conviction a felony punishable by a fine of $1,000 or two years in prison, or both. We conclude that since the Government has chosen to subject the applicant to the serious consequences flowing from an illegal "entry" into the United States, the doctrine of collateral estoppel should be applied to prevent the Government from denying the fact of such "entry" for the purposes of this exclusion proceeding. See Matter of Grandi, supra. There is certainly no manifest injustice in this approach, nor does the result violate any overriding public policy. Public policy would seem to favor consistency in the Government's dealings with individuals under the various provisions of the immigration laws. The appellate trial attorney has suggested that the conviction for illegal entry was erroneous (Oral argument, p. 14). Nevertheless, the Government has taken no action to have the judgment vacated and the charge dismissed. Moreover, the sentence imposed on the applicant has already been executed. The Government had its opportunity to litigate the issue of "entry.” We hold that it should now be bound by the court's determination that an "entry" into the United States was made on August 26, 1972. Con |