taking and transporting was prostitution and assignation and that she unlawfully aided and abetted prostitution and assignation. There is also an allegation that the respondent "engaged in prostitution during April and May 1963." The record of conviction supporting the allegations set forth in the order to show cause are entered in the record as Exhibits 4, 5 and 6. The respondent concedes that Exhibits 4, 5 and 6 relate to her.

Exhibit 2 is a statement made by the respondent on July 23, 1964. She testified that the convictions set forth in Exhibits 4, 5 and 6 arose out of her activities in connection with her operation of a massage parlor at 1307 Sansom Street in the City of Philadelphia, Pennsylvania. She testified that the arrest took place at her place of business and that she was the owner and operator at the time. When questioned as to whether her husband received any of the earnings of the business the respondent replied "he was getting several hundred dollars a week, including the things I bought for the home . . . nobody makes $200 or $300 a week giving massages and he was just playing dumb" (p. 6 of Ex. 2). The respondent when questioned as to whether she committed acts of prostitution testified “I pleaded guilty. That's the only way I want to answer this" (p. 6 of Ex. 2).

The respondent when questioned as to whether she committed oral sodomy while operating the massage parlor testified "I did it in a certain way... I was particular. I would not take the first one that came along" (p. 7 of Ex. 2). Oral sodomy as performed by the respondent is an act of prostitution.

The respondent in her notice of appeal (Form I-290A) maintains that she is not deportable because "I was not responsible at that time..." due to illness. She maintains that her arrests and convictions were not for prostitution. She testified further that she pleaded guilty to the offenses set forth in Exhibits 4, 5 and 6 upon advice of counsel.

While a conviction of having engaged in prostitution is not a requirement to support a charge under section 241 (a) (12) of the Immigration and Nationality Act nevertheless the records of conviction in this particular case when considered in light of the respondent's admissions found in Exhibit 2 amount to substantial evidence in support of the charge that after entry she engaged in prostitution. The records of conviction in the instant case spell out the proscribed conduct in detail and the respondent admits that the records of conviction relate to her. We find that the evidence of record adequately sustains the charge laid under section 241(a) (12) of the Immigration and Nationality Act.

The respondent stated that she wishes to remain in the United States "because I have my son who was born in the United States . . . I am very attached to him and don't want to leave him." The only relief for which the respondent may be eligible is an application for an adjustment of status under section 245 of the Immigration and Nationality Act, as amended, coupled with an application for a waiver of the grounds of inadmissibility arising because of her prostitution. There is no application for relief before us and the respondent has stated that she does not have the fee for filing the application under section 245. An appropriate order dismissing the appeal will be entered.

ORDER: It is directed that the appeal be and the same is hereby dismissed.

MATTER OF MCNEIL

In Deportation Proceedings

A-10130570

Decided by Board November 3, 1964 and March 17, 1965

Decided by Attorney General November 5, 1965

The taking by the Service of oral depositions from witnesses before the United States Consul in Calcutta, India, when respondent or his counsel was either unwilling or unable to be present but who thereafter had full opportunity to examine the depositions and to submit written cross-interrogatories, was not prejudicial to respondent; nor was there error because one of the witnesses when cross-examined was in Germany and no longer had access to records which were in India, and such depositions serve to properly authenticate the certificate of baptism and school record relating to respondent, executed and certified by the lawful custodians of such records (the witnesses), entered in evidence as exhibits in the deportation proceedings in his case.

CHARGES:

Warrant: Act of 1924-[8 U.S.C. 213 and 214, 1946 ed.]-No immigration

Lodged:

visa.

Act of 1952-Section 241 (a) (6) [8 U.S.C. 1251(a)(6) ]—After entry, member of Communist Party of United States.

Act of 1952-Section 241 (a) (5) [8 U.S.C. 1251(a) (5)]—Failed to furnish notification of address.

BEFORE THE BOARD

This case is before us pursuant to an order entered by a special inquiry officer on June 25, 1964, directing the respondent's deportation and certifying the case to this Board for final decision.

The respondent is a 60-year-old married male who claims he was born in the United States and is a citizen. The special inquiry officer found that the respondent is an alien who was born in India and concluded that he is deportable on the warrant charge and the first lodged charge. That officer adopted the previous findings which had been made in sustaining the two charges. The findings in our order of February 26, 1960 and in the special inquiry officer's order

of August 25, 1959 were to the effect that the respondent entered the United States between October 1937 and December 1938; that he was not then in possession of an immigration visa; and that he had been a member of the Communist Party of the United States at least during the period 1938 to 1945.

The respondent's case was before the court in McNeil v. Kennedy, 298 F.2d 323 (D.C. Cir., 1962). We have considered this record pursuant to that decision and in the light of the decisions in Chung Young Chew v. Boyd, 309 F.2d 857, 866 (9th Cir., 1962), and McConney v. Rogers, 287 F.2d 473 (9th Cir., 1961). In accordance with our discretionary authority under 8 CFR 3.1(d)(1) and (2), we have concluded that the hearing must be reopened again and the case remanded to the Service inasmuch as it is our opinion that this record does not meet the requirements of the decisions cited.

It appears that the Service and the special inquiry officer endeavored to proceed under the Rules of Civil Procedure for the United States District Courts as set forth in Title 28, United States Code, and we believe this was appropriate under the three decisions cited above. Rule 30 relates to "Depositions Upon Oral Examination" and Rule 31 refers to "Depositions of Witnesses Upon Written Interrogatories." The special inquiry officer's order of February 19, 1963 authorized the taking of depositions of Messrs. Vyse and Ayre or, if not available, the persons having custody of the two records involved (Exs. R-27 and R-28). Counsel contends that it was error to permit the Service to examine the two witnesses on oral depositions and then restrict the respondent to cross-interrogatories particularly since one of the witnesses was examined on cross-interrogatories in Frankfurt am Main, Germany, and stated he could not answer certain questions because he no longer had access to the records which were in India. Under the circumstances of this case, we believe that the present custodians of the two records should be required to make new depositions upon written interrogatories by both sides in accordance with Rule 31.

Rule 28(b) [as amended January 21, 1963, effective July 1, 1963] specifies the persons before whom depositions may be taken in foreign countries, and Rule 28 (c) provides, in part, that no deposition shall be taken before a person who is an employee of any of the parties. Counsel contends that one of the parties to the deportation proceeding is the United States and that the American Consular Officers, before whom the depositions and cross-interrogatories were made, are employees of the United States. The special inquiry officer and the Service did not indicate that counsel had waived this objection under Rule 32(b). We are not persuaded by the state

ments of the Service and the special inquiry officer that it is the Immigration and Naturalization Service rather than the United States which is a party to the deportation proceeding. However, we need not reach a definite conclusion concerning this question since we have indicated that new depositions should be taken. The present record also appears to be inadequate since it does not specifically show that counsel was notified in writing as to the time and place for taking the deposition although counsel's "Notice" dated March 22, 1963 does mention a letter dated March 19, 1963 which he had received from the District Director. However, this letter is not part of the record before us.

In our order of February 26, 1960 (p. 6), we referred to counsel's request for reopening of the proceeding to permit the respondent to testify on the issue of citizenship. We stated that the respondent had been repeatedly requested to testify on this issue and, for reasons stated in that order, we concluded that the hearing should not be reopened. Following the decision in McNeil v. Kennedy, supra, we reopened the hearing by order dated April 12, 1962 and we specifically stated: "The Service and the respondent may present any pertinent evidence." On July 17, 1962 the special inquiry officer asked the respondent to be sworn and his counsel stated that he refused to testify against himself (p. R-47). On August 9, 1962 counsel requested that the hearing be reopened to permit the respondent to testify as to his birth. During the oral argument on October 22, 1962 (p. 7), counsel stated that the respondent had been willing to testify as to his place of birth before the special inquiry officer but that the special inquiry officer said that if he testified he would also have to testify concerning his Communist Party activity. The record shows that counsel was in error in this statement.

Since we have found it necessary to reopen the hearing, we believe that the respondent should be given the opportunity, which he allegedly desires, of testifying concerning the issue of citizenship. It is our opinion that the respondent's testimony, cross-examination by the trial attorney, and the opportunity for the special inquiry officer to consider the demeanor of the respondent while testifying will be helpful in resolving the issue of alienage. In order to avoid any future contention that the respondent again refused to testify because the Government insisted upon the right to examine him relative to asserted Communist Party membership in the event that he testified, we believe it would be appropriate for the trial attorney to stipulate that the respondent will not be questioned on that issue unless the respondent himself desires to testify concerning it. This is not to be construed as precluding the Service or the respondent