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Supp. 783 (D.N.J., 1953), aff’d 208 F. 2d 632, cert. den. 347 U.S. 952; Matter of S-, Int. Dec. No. 1221 (1962); and Matter of C—,8 1. & N. Dec. 577 (1960). Yates, as we shall later indicate, is actually adverse to the postion of the Service.

Lutwak did not involve collateral estoppel. The quotation from that decision (motion, p. 7) related to the contention of those petitioners that their marriages were valid. The court declined to pass on the validity of the marriages, stating that this was not material. On page 5 of the motion, the Service quoted from a sentence in the Lutwak decision which reads, in part, as follows: “There is an abundance of evidence in this record of a conspiracy to contract spurious, phony marriages * We shall not at this time consider the validity of the respondent's marriage, but the fact that there was an abundance of evidence that the Lutwak marriages were spurious is of no assistance in determining whether there is such evidence in the respondent's case.

The language which the Service quoted from the Accardo decision simply means that, after Accardo had been convicted of conspiring to operate an unregistered still, he could not deny his guilt of the conspiracy in the subsequent denaturalization suit. This respondent makes no claim that he was innocent of the offense for which he was convicted, and the Accardo decision is of no value in sustaining the argument of the Service.

Matter of S- did not involve collateral estoppel. There, we held that the alien was excludable because he had been convicted of a crime involving moral turpitude-conspiracy to commit, among other offenses, the crimes of forgery and uttering a forged instrument. He contended that he had actually pleaded guilty only to that portion of the conspiracy count relating to gambling. His exclusion was directly predicated on the conviction, whereas this respondent is not charged with being deportable by reason of the conviction itself.

S— was attempting to controvert the conviction record; this respondent has made no effort to attack the conviction nor does he claim that he intended to plead guilty to only part of the conspiracy count. For the reasons mentioned, Matter of S— is not analogous to the respondent's


The remaining case cited by the Service is Matter of C—, supra. There, we held that the court's finding in a denaturalization suit that the naturalized person had been a member of the Communist Party was conclusive, under the doctrine of collateral estoppel, in a subsequent deportation proceeding against that person based on his Communist Party membership. In the similar case of Matter of T-, Int. Dec. No. 1115 (1960), we reached the same conclusion. In those two cases, the records in the denaturalization suits established that the courts had made the findings concerning Communist Party membership. As we pointed out in our previous order, the record relating to the respondent's conviction does not show what specific findings of fact may have been made in that proceeding, and the special inquiry officer's decision does not clarify that matter. We do not mean that there must have been formal findings of fact in the first action providing that it can be determined definitely what facts or issues were actually decided by the court.

Our decisions in Matter of C- and Matter of Tsupra, were predicated on the principles stated in Cromwell v. County of Sac, 94 U.S. 351 (1876) and Southern Pacific Railroad Co. v. United States, 168 U.S. 1 (1897). In the former, at age 353, it was said: “* * * where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” Under the doctrine of collateral estoppel, the point or question to be determined in the second action must be the same as that litigated in the original action and it must have been a fact which was essential to the first decision. Tait v. Western Maryland Railway Co., 289 U.S. 620, 623 (1933). If there is any uncertainty as to the precise question determined in the first suit and the uncertainty is not removed by extrinsic evidence, no estoppel is created. De Sollar v. Hanscome, 158 U.S. 216, 221 (1895); Russell v. Place, 94 U.S. 606, 608, 610 (1877).

There appears to be no dispute between the parties concerning the fact that the respondent last entered the United States on June 27, 1958 and that he was then admitted as a nonquota immigrant on presentation of an immigrant visa which had been issued on the basis of his marriage to Mary McCabe. As a matter of fact, the third and fourth factual allegations are to that effect and these were admitted by the respondent. However, the crucial question is whether he procured his immigrant visa by fraud or misrepresentation.

Although there are allegations in count one of the indictment that it was part of the plan and purpose of the conspiracy that the respondent, Mary McCabe Marinho and two other persons would do certain acts, including allegations that the respondent would execute an application for immigrant visa and that the State Department would issue a nonquota visa to the respondent, the indictment does not specifically state whether these acts were or were not performed except insofar as concerns the five overt acts which were set out. None of the overt acts relates to the respondent's procurement of his immigrant visa, and there is no specific allegation in the indictment that the respondent procured his immigrant visa by fraud or misrepresentation or even that he procured a visa. Hence, if we accepted every allega

tion of the indictment as having been proved, that would still not establish that an issue actually litigated and determined in the criminal case was whether the respondent procured his immigrant visa by fraud or misrepresentation, nor that this issue was essential to the judgment in that proceeding. In view of the foregoing, those elements which are prerequisites to the application of the doctrine of collateral estoppel do not exist in the respondent's case.

The ultimate fact which must be determined in this deportation proceeding is whether the respondent procured his immigrant visa by fraud or misrepresentation In Yates v. United States, supra, which was cited by the Service, the following statement was made at page 338: “The normal rule is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding. So far as merely evidentiary or 'mediate facts are concerned, the doctrine of collateral estoppel is inoperative.” We believe this statement of the Supreme Court makes it abundantly clear that the doctrine of collateral estoppel is inapplicable in this respondent's deportation case. For the reasons indicated above, the motion of the Service will be denied.

ORDER: It is ordered that the motion of the Service for reconsideration, except as reconsidered herein, be and the same is hereby denied.


In DEPORTATION Proceedings


Decided by Board March 26, 1963

“Extreme hardship" within the meaning of section 244 (a) (1) of the Immigra

tion and Nationality Act of 1952, as amended by the Act of October 24, 1962, would result from the deportation of respondent, a 42-year-old native and citizen of China, who has resided continuously in the United States for a period of 11 years, in view of the great difficulty he would experience at his age in obtaining employment or in adjusting to life in a new country, and in view of the advanced age (72) and permanent disability of his partially-dependent United States citizen father.

Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]-Nonimmigrant

remained longer than permitted.

This case is before us on appeal from a decision of a special inquiry officer denying the respondent's three applications mentioned above and directing his deportation. For the reasons hereinafter mentioned, we will grant the application for suspension of deportation, and the other applications need not be considered.

Discussion As To Deportability: The respondent is a 42-year-old married male, native and citizen of China, who last entered the United States on August 21, 1951 at which time he was admitted as a nonimmigrant visitor authorized to remain in this country until November 21, 1951. He has remained in the United States without authority and has conceded that he is deportable on the charge stated in the order to show cause.

Discussion As To Eligibility For Suspension of Deportation: On February 16, 1962 the respondent applied for suspension of deportation under section 244(a) (5) of the Immigration and Nationality Act. Prior to the decision of the special inquiry officer on December 20, 1962, this statutory provision had been amended by section 4 of the Act of October 24, 1962 (Public Law 87-885; 76 Stat. 1247). Originally section 244 (a) authorized the Attorney General to suspend deportation in acordance with the statutory requirements which were set out. Since such action had not been taken prior to the amendment of October 24, 1962, it follows that the respondent's case must be determined under the applicable provision of the amended section, that is, Section 244(a)(1).

The respondent was born on the mainland of China and lived there until 1949. He stated that at that time he fled to Hong Kong because the Communists were taking control of China. He left Hong Kong for Central America in 1950. He was married in 1950 while still in Hong Kong, and one child was born there of the marriage on March 5, 1951. The respondent's wife and child still reside in Hong Kong and she is employed there as a nursemaid in an orphanage. The respondent contributes to their support by sending $50 to $100 monthly. He has been employed in the United States as a waiter and now earns about $85 weekly. In his application for suspension of deportation, he stated that his assets amounted to $2,350.

The respondent's statement of November 6, 1961 (Ex. 8, p. 2) contains information verifying his admission as a nonimmigrant on August 21, 1951, and he has testified that he has not been absent on any occasion since that date. The special inquiry officer concluded that the respondent had been physically present in the United States for a continuous period of at least ten years, and we are also satisfied from the record as to the respondent's continuous physical presence in this country since August 21, 1951. It follows that he meets the requirement of section 244(a) (1), as amended, concerning physical presence in the United States for a continuous period of not less than seven years.

The special inquiry officer also concluded that the respondent had established good moral character during the statutory period. The respondent testified that he had never been arrested or convicted of any crime. A search of the local police records and a report received from the Identification Division of the Federal Bureau of Investigation indicate that the respondent has no criminal record. An independent investigation conducted by the Service was favorable to the respondent. We conclude that the respondent has established his good moral character during the seven years preceding his application.

Prior to the amendment of October 24, 1962, the five paragraphs of section 244 (a) required an applicant to establish that his deportation would result "in exceptional and extremely unusual hardship” to the alien or to his citizen or legally resident spouse, parent or child. This same language was retained in amended section 244 (a) (2), but in amended section 244(a) (1), which is involved here, the language was changed to require the alien to establish that his deportation would result “in extreme hardship” to him or to his citizen or legally resident

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