was bound by his stipulation that there was no issue in the case but the interpretation to be given the blood-grouping tests. We feel that the special inquiry officer's denial of this request was unnecessary, but does not constitute prejudicial error sufficient to require reopening of the record. The alleged father's testimony probably would not have lengthened the record unduly. But neither could it influence our decision, which is bound by the test results. In the past six years we have held repeatedly that blood-test evidence is conclusive, when it is satisfactorily established that the tests have been conducted by competent and experienced persons and where the tests conclusively establish the impossibility of the claimed relationship. Matter of L-F FF 5 I. & N. Dec. 149 (1953); Matter of W -K- -S- and W -PS- 5 I. & N. Dec. 232 (1953); Matter of DW- ・O・ — and DW- -H5 I. & N. Dec. 351, 356 (1953, 1954); Matter of L- -C- -S6 I. & N. Dec. 212 (1954). These decisions have been sustained in the courts for the most part. When the courts have found citizenship in spite of blood tests demonstrating non-existence of the claimed relationship, it has been for a procedural defect (Dulles v. Quan Yoke Fong, 237 F. 2d 496 (C.A. 9, 1956)); or for a failure of the Government to establish the qualifications of the technician (Chin Wing Gwong v. Dulles, 139 F. Supp. 116 (D.C.R.I., 1956)).

Counsel complains that he was not permitted to cross-examine Dr. Weiner, and therefore should not be bound by Dr. Weiner's certification. Counsel had two blood-test experts for examination and cross-examination. Examination of experts in these cases has gone largely to the matter of the accuracy of the testing procedure, proper identification of the parties (to eliminate the possibility of substitution), adequate supervision of laboratory workers, and the general acceptance of blood-testing procedure and results for medical and legal purposes. Cross-examination would serve no purpose here, because all parties conceded Dr. Weiner's qualifications and agreed to an acceptance of his interpretation. Until Dr. Weiner's determination was unfavorable to respondent, counsel was willing to submit the issue of the true meaning of the test results to him. Counsel protests that in Matter of D-WOWH

and D

5 I. & N. Dec. 351, at page 361, Dr. Weiner is quoted

1 United States ex rel. Dong Wing Ott v. Shaughnessy, 220 F.2d 537, 245 F.2d 875, reaff. 247 F.2d 769 (C.A. 2, 1955-1957); United States ex rel. Lee Kum Hoy, et al. v. Shaughnessy, 115 F. Supp. 302, 123 F. Supp. 674 (D.C.N.Y., 1953-1955), 237 F.2d 307 (C.A. 2, 1956), 352 U.S. 966; United States ex rel. Lee Kum Hoy v. Murff, 355 U.S. 169; Lue Chow Kon v. Brownell, 122 F. Supp. 370, 220 F.2d 187 (C.A. 2, 1955), 146 F. Supp. 3, 245 F.2d 874 (C.A. 2, 1957); Jew Jock Koon v. Dulles, 139 F. Supp. 205 (S.D. Texas, 1955); Get v. Dulles, 154 F. Supp. 577 (E.D.N.Y., 1957); Wong Fuey Ying v. Dulles, 137 F. Supp. 470 (D.C. Mass., 1956); Leu Moon Cheung v. Rogers, (D.C. Calif., November 12, 1958).

by us as having said that for the purposes of testifying in legal proceedings he prefers not to rely on the conclusions drawn from tests made by other persons but prefers to make his own tests. Dr. Weiner's letter, exhibit 3 in this record, states that he prefers to conduct the tests himself, but where, as in the instant case, the test results are consistent and only the interpretation is at issue, he is willing to make an interpretation. We fail to see any ground here for a valid objection.

As counsel points out, the Court of Appeals for the Ninth Circuit has held that where the Immigration Service has admitted a claimant as a citizen the burden necessary to overcome the prior admitting decisions falls on the Government. Lee Hon Lung v. Dulles, 261 F.2d 719 (C.A. 9, 1958). The Ninth Circuit also held in Et Ming Ng v. Brownell, 258 F.2d 304 (C.A. 9, 1958), that the trial court did not abuse its discretion in determining (among other findings) that the blood tests were reliable and "should be given great weight."

To recapitulate: It is our conclusion that blood-test evidence presented here, consisting of the test results which are consistent and uncontroverted, and interpreted by an unimpeachable expert to establish exclusion of paternity, must be accepted by us. Clearly, Dr. Steiner does not agree with the American Medical Association Committee Reports of 1952 and 1957, but evidently he stands alone in his opinion that the blood factor rh" is too controversial to serve as a basis for an exclusion of paternity. The record does not establish Dr. Steiner as a recognized authority in the field. The writings referred to by him and counsel do not support his view. On the contrary, they support the view of Dr. Ortega, Dr. Weiner, and other authorities. The warnings and exceptions set forth in the American Medical Association Subcommittee reports refer to blood factors other than the rh" factor present here. Any errors committed in the hearing were not prejudicial errors sufficient to require reopening and rehearing. The blood tests constitute clear and convincing evidence that the respondent is not the son of the alleged father. Therefore, he is not a United States citizen. The appeal will be dismissed.

Order: It is ordered that the appeal be and is hereby dismissed.

MATTER OF LR

In DEPORTATION Proceedings

A-6881251

Decided by Board February 20, 1959

Narcotic Violation-Finality of conviction-Commitment to California Youth Authority.

Alien found guilty by California court of narcotic violation and ordered committed to the California Youth Authority has been "convicted" within meaning of section 241 (a) (11) of the 1952 act.

CHARGE:

Order: Act of 1952-Section 241 (a) (11) [8 U.S.C. 1251(a) (11)]-Narcotic conviction: Possession of heroin, in violation of section 11500 of the California Health and Safety Code.

BEFORE THE BOARD

Discussion: Respondent, a 20-year-old married male, a native and national of Mexico, last entered the United States in 1948 when he was admitted for permanent residence. On March 17, 1958, he was convicted in the Superior Court at Los Angeles, California, for possession of heroin in violation of section 11500, Health and Safety Code of the State of California. The respondent was found guilty. A probation report was ordered and the proceedings were continued. On May 6, 1958, the respondent appeared for sentencing. Probation was denied. Respondent was committed to the Youth Authority of the State of California for the term prescribed by law and was ordered held in the custody of the sheriff in the county jail subject to any orders the Authority might issue.

The special inquiry officer found that respondent had been convicted of a narcotic violation and he ordered the respondent's deportation. Respondent appealed stating that he did not believe that he was subject to deportation. On August 22, 1958, we remanded the case to have the record show what disposition the Youth Authority had made of the respondent. The Acting Regional Commissioner, Southwest Regional Office, filed this motion asking for reconsideration of our decision. His position is that whatever action the Youth Authority will take can have no bearing on the alien's liability to

deportation since the only question to be resolved is whether the respondent has been convicted of a narcotic violation and this fact is already established by the record. At oral argument, the Service representative pressed the same view. (We have now been supplied with information that the respondent was transferred from the county jail to a vocational institution at Tracy, California, and that from there he has been transferred to the Director of Corrections at Soledad, California.)

The issue is whether the respondent has been "convicted" as that term is understood in the immigration laws. For deportation purposes, a conviction exists where the following elements are all present: (1) there has been a judicial finding of guilt, (2) the court takes action which removes the case from the category of those which are (actually, or in theory) pending for consideration by the court the court orders the defendant fined, or incarcerated or the court suspends sentence, or the court suspends the imposition of sentence, (3) the action of the court is considered a conviction by the State for at least some purpose (Matter of 0, 7 I. & N. Dec. 539; Matter of J—, 7 I. & N. Dec. 580; Matter of D, Int. Dec. No. 965).1

How does the action of the court here meet the tests? The record reveals that there has been a judicial declaration of guilt. This judicial finding of guilt was followed by an order committing respondent. The court has acted and there is nothing left for the court to do. After the order of commitment was entered the court, without more, had no jurisdiction over the respondent (People v. Rick, 112 C.A. 2d 410, 246 P. 2d 691). The action of the court is as final as if the court had given respondent a suspended sentence, or had suspended the imposition of sentence, or had placed respondent on probation rather than ordering him confined (see Arrellano-Flores v. Hoy, 262 F.2d 667, C.C.A. 9, 1958). The last test, which required that the State consider the proceeding as one resulting in a conviction, is also satisfied here. The law provides that a person who has been "convicted of a public offense" can be committed to the Youth Authority (section 1731.5, Welfare and Institutions Code; see also section 1771); and the courts of the State in speaking of a person committed to the Youth Authority in a proceeding such as this, consider him as having been "convicted of crime." A commitment to the Youth Authority is a judicial determination of the fact of defendant's conviction and pronouncement of sentence for the offense

1 It is to be noted that we are not concerned with whether an alien has been sentenced to confinement for a year or more, but merely with whether he has been convicted. There is no requirement in the immigration laws that conviction of a narcotic violation be followed by a particular type of punishment, in order to make the alien deportable.

(see, People v. Lockwood, 146 C.A. 2d 189, 303 P. 2d 621; In re Herrera, 23 C. 2d 206, 143 P. 2d 345; People v. Rick, 112 C.A. 2d 410, 246 P. 2d 691). The court took the action which is normally taken to inflict some obligation upon a convicted person. This action meets all the tests we have set forth. A conviction exists for immigration purposes. We shall, therefore, withdraw our order of August 22, 1958, and dismiss the appeal.

Order: It is ordered that the Board's order of August 22, 1958, be and the same is hereby withdrawn.

It is further ordered that the appeal be and the same is hereby dismissed.