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Magistrate Court of the First Class at Suva, Fiji, of breaking, entering and larceny committed January 12, 1958 and was sentenced to 12 months imprisonment. His appeal on the ground that the sentence was too severe for the crime committed was dismissed on February 10, 1958 (Ex. 4).
The crime of breaking, entering and larceny is a crime involving moral turpitude. Inasmuch as the punishment actually imposed was more than six months, the crime is not classifiable as a petty offense under the provisions of section 1.3 of Title 18 of the United States Code. The respondent is deportable as charged in the order to show cause. The respondent has been convicted of a crime involving moral turpitude not classifiable as a petty offense, and since he is not eligible for a waiver thereof under section 212(h) because of the lack of the required familial ties in the United States, he is ineligible for adjustment of status to that of a permanent resident. His application for that relief was properly denied. However, the special inquiry officer has granted the respondent voluntary departure in lieu of deportation. The Service is not opposed to that grant. The grant of voluntary departure will be approved.
Counsel in his brief and at oral argument contends that the proof of conviction adduced at the hearing (Ex. 4) is insufficient to support an order for deportation inasmuch as it is not accompanied by a certificate showing that the attesting officer had custody of the record as required by Rule 44 of the Federal Rules of Civil Procedure. In support of this contention he cites Chew v. Boyd, 309 F.2d 857 (9 Cir., 1962), and McNeil v. Kennedy, 289 F.2d 323 (D.C. Cir., 1962).
Rule 44 of the Federal Rules of Civil Procedure as amended December 31, 1967 (Title 28, Appendix, Fed. R. Civ. P., 1964 ed. Supp. III 1965-1967) deals with authentication of two types of official records. Rule 44 (a) (2) made a change in the requirement for authentication of foreign official records as contrasted with authentication of domestic records, governed by Rule 44(a) (1), which adhered to the rule previously set forth in Chew v. Boyd, 309 F.2d 857. The requirement relating to authentication of foreign official records now merely requires an official publication thereof, or a copy thereof, attested to by a person authorized to make the attestation, and accompanied by a final cerification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuine
1 Matter of G-A-, 7 I. & N. Dec. 274, 375; Matter of M-, 8 I. & N. Dec. 453, 455.
ness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certificaion may be made by a secretary of embassy or legation, consul general, vice consul or consular agent of the United States or a diplomatic or consular officer of the foreign country assigned or accredited to the United States.
The Notes of the Advisory Committee on Rules states that the reference to authentication by "the officer having legal custody of the record,” hitherto appearing in Rule 44, has been found inappropriate for official records kept in foreign countries where the assumed relationship between custody and the authority to attest does not obtain. Accordingly it is provided that an attested copy may be obtained from any person authorized by the law of the foreign country to make the attestation regardless of whether he is charged with responsibility for maintaining the record or keeping it in his custody. The Notes of the Advisory Committee go on to state that the difficulties are met under the amended rule by eliminating the element of the authority of the attesting foreign official from the scope of the certifying process, and by specifically permitting the usage of the chain-certificate method. Under this method, it is sufficient if the original attestation purports to have been issued by an authorized person and is accompanied by a certificate of another foreign official whose certificate may in turn be followed by that of a foreign official of higher rank. The process continues until a foreign official is reached as to whom the United States foreign service official has adequate information on which to base a “final certification.”
In the instant case, the conviction record (Ex. 4) is signed by the clerk of the court as a certified true copy, followed by the seal of the magistrate's court, followed by a certification of an American vice consul that Ilaisa Seru Tulele, whose true signature and official seal are subscribed and affixed to the annexed document was, on the 24th day of May 1968, the date thereof, the Clerk of the Court, duly commissioned and qualified, to whose official acts faith and credit are due. Thus the authentication of the foreign document conforms fully with the Rule 44 (a) (2) as amended February 28, 1966, effective July 1, 1966."
ORDERED: It is ordered that the appeal be and the same is hereby dismissed.
2 The provisions of 8 CFR 287.6 as amended November 29, 1967, embody the same distinction as amended Rule 44 as to comestic records and foreign records.
It is further ordered that, pursuant to the special inquiry officer's order, the respondent be permitted to depart from the United States voluntarily within 30 days from the date of this decision or any extension beyond that time as may be granted by the District Director; and that, in the event of failure so to depart, the respondent shall be deported as provided in the special inquiry officer's order.
MATTER OF DE VERA
In Visa Petition Proceedings
Decided by District Director July 17, 1969
A dietitian who has a bachelor's degree with a major in foods and nutrition
or who has the equivalent of such education and training is a member of the professions within the meaning of sections 101 (a) (32) and 203 (a) (3) of the Immigration and Nationality Act, as amended.
The petition was filed to accord the beneficiary third preference classification as a dietitian based on her qualifications as a dietitian. The beneficiary is a female, single, native and citizen of the Philippines, age 22, and presently residing in Navotas, Philippines.
The beneficiary received a Bachelor of Science Degree in Foods and Nutrition in April, 1967, from Centro Escolar University, Manila, Philippines. She has been employed as a dietitian at the University of the East Hospital, Quezon City, Philippines, since July 16, 1968. The beneficiary intends to engage in her profession in the United States as a professional dietitian.
Dietetics are listed in Schedule A, Group II of 29 CFR for blanket labor certification.
Dietitians are listed among the professional occupations under code 077. in the Dictionary of Occupational Titles, Volume II, third edition, prepared by the United States Department of Labor. Under specific classifications, within code 077, listed as professional and kindred, are: Research Nutritionist; Dietitian, Chief; Dietary Consultant; Dietitian, Teaching; Dietitian, Therapeutic; Nutritionist; Dietitic Intern; Dietitian; and Dietitian, Administrative. Dietitians plan and supervise the preparation an serving of appetizing and nutritious meals to help people maintain or recover good health. Their work includes planning general menus and modified diets to meet nutritional requirements for medical treatment, supervising the personnel who prepare and serve the meals, managing purchases and accounts, and providing guid
ance on good eating habits. They may also serve as instructors in the field of nutrition or take part in research projects concerned with the nutritional needs of the aging, persons with chronic diseases or space travelers.
The Occupational Outlook Handbook, 1968–1969 edition of the United States Department of Labor, states the minimum educational requirements for dietitians is a bachelor's degree with a major in foods and nutrition or institution management. While the American Dietitic Association recommends the completion of a one-year dietic internship program approved by the association or three years experience to qualify for professional recognition, such a requirement appears to be solely for recognition by their association. The views of the United States Department of Labor in setting the minimum educational requirements for dietitians and in classifying Dietic Interns (077.168) as professional and kindred, must be given considerable weight.
It is concluded that a person who has a bachelor's degree with a major in foods and nutrition or a person who has the equivalent of such education and training is a member of the professions within the meaning of sections 101(a) (32) and 203 (a) (3) of the Act, as amended. The applicant is entitled to classification as a member of the professions by virtue of her educational attainments.
ORDER: It is ordered that the petition be approved.