FRANCOIS

Interim Decision #1263




                             MALrER or FRANCOIS

                     In DEPORTATION Proceedings

                                   A-12193870
                    Decided by Board January 17, 1963
Since the existence of good moral character for a reasonable period of time is
  a factor which must be considered in determining whether an application for
  adjustment of status under keen= 245 of the Immigration and Nationality
  Act, as amended, merits the favorable exercise of discretion, adjustment is
  denied to an alien who was convicted as recently as November 1961 of a
  crime involving moral turpitude, has bad several additional brushes with the
  law, is at liberty only upon the restraint exercised by the terms of his probation,
  has been married but a short time, and has not yet fully solved his problem
  areas.
CHARGE :
  ORDER Act of 1952—Section 241(a) (4) [8 U.S.C. 1251(a) (4)3—Crime com-
           :


          mitted within five years after entry, to wit : transporting stolen auto.


   The case comes forward pursuant to certification by the special
inquiry officer of his order dated July 13, 1962 granting the respondent's application for a waiver under section 212(g) of the Immigration said Nationality Act of the ground of inadmissibility under section
212(a) (9) of the Act, resulting from his conviction on November 1,
1961 of the offense of unlawfully, wilfully and knowingly transporting
a stolen motor vehicle in interstate commerce, knowing the same to
have been stolen; and further ordering that the respondent's application for adjustment of status pursuant to section 245 of the Act to
that of an alien lawfully admitted for permanent residence be granted.
   The record relates to a native and citizen of Belgium, 20 years old,
male, married, who last entered the United States at the port of New
York on October 15, 1960 and was admitted for permanent residence.
Ile was previously in the United States from 1957 to 1960 in a diplomatic status as the member of a family attached to the Belgian Embassy. The respondent was convicted in the United States District
Court for the Southern District of New York on November 1, 1961
upon his plea of guilty of the offense of unlawfully, wilfully and

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knowingly transporting a stolen vehicle in interstate commerce, knowing the same to have been stolen in violation of Title 18, sections 2312
and 2, U.S.C. and was sentenced to one year and one day, execution of
sentence suspended and defendant placed on probation for two years,
subject to the standing probation order of the court. The term
"stolen" as used in 18 U.S.C. 2312 includes all felonious takings of
motor vehicles with intent to deprive the owner of the rights and
benefits of ownership? The crime involves moral turpitude. The
respondent is subject to deportation as charged in the order to show
cause.
  Respondent has applied for adjustment of status pursuant to the
provisions of section 245 of the Immigration and Nationality Act in
conjunction with a waiver under 212(g) of the ground of inadmissibility arising under section 212(a) (9) as a result of his conviction as
set forth above. Section 245 (a) of the Immigration and Nationality
Act as amended by section 10 of the Act of July 14, 1960 (74 Stet.
504, 8 U.S.C. 1255(a), 1961 C.A.P.P.) provides that the status of an
alien, other than an alien crewman, who was inspected and admitted
or paroled into the United States may be adjusted by the Attorney General in his discretion and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent residence if (1) the
alien makes an application for such adjustment, (2) the alien is
eligible to receive an immigrant visa and is admissible to the United
States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is approved.
   The respondent has no arrest record in Belgium. His arrest record
in the United States, other than a conviction winch forms the ground
of his deporta.bility, is not entirely clear from the record. In his
application for adjustment of status pursuant to section 245 (Form
1 485) executed April 5, 1962, the respondent sets forth disorderly
 -


conduct, Washington, D.C., 1960, two arrests, disposition uncertain.
He indicates an arrest in Washington about a month after his conviction for disorderly conduct as a result of which he forfeited $10
collateral, an earlier disorderly conduct arrest when he was about 18,
from which his father obtained his release.
   A report of the probation officer for the United States District
Court for the District of Columbia, dated April 6, 1962, discloses that
the respondent's prior arrest record up until the date he was placed
on probation included three traffic violations, the subject forfeiting
collateral each time, and one arrest for disorderly conduct, which was
dismissed. Since being placed on probation the respondent has been
given another ticket for a traffic violation for driving a motorcycle
  ' United States v. Turley, 

 (1957) .

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Interim Decision #1263
without a driver's permit and upon this charge he forfeited a small
collateral. The report makes reference to a skirmish which took
place in the respondent's neighborhood several weeks ago which was
disposed of with no further action taken. The probation report
indicates that the respondent is now. enrolled in a -weekly group
therapy program, is anxious to solve some of his problem areas, and in
view of the fact that respondent is now working regularly, has remained out of any serious difficulty with local authorities in recent
months, has just gotten married and is fully cooperating, it is the
recommendation of the probation officer, as well as that of the Federal
Court in New York City, that hebe permitted to remain in this country.
  The granting of adjustment of status pursuant to section 245 of
the Immigration and Nationality Act is not automatic upon a showing
of compliance with the three requisites thereof : (1) the alien makes an
application for such adjustment; (2) the alien is eligible to receive
an immigrant visa and is admissible to the United States for permanent residence; and (3) an immigrant visa is immediately available
to him at the time his application is approved. Section 245 provides
that the status of an alien "may be adjusted by the Attorney General,
in his discretion." The waiver under section 212(g), by regulation,
8 CFR 245.1, can only be granted in conjunction with the application
for adjustment of status under section 245 or section 249. 2 An applicant for adjustment of status under section 245, as amended, is
not required by the law or implementing regulations to establish good
moral character and the provisions of section 101(f) of the Act, setting forth eight classes of persons who shall not be regarded as persons
of good moral character, are not literally applicable.
   However, it cannot be denied that good moral character is a factor
which must be considered in determining whether the Attorney General's- discretion should be exercised in a particular case. The standards set forth in section 101(f), as well as other reasons or factors,
may be considered in determining whether an application for the
exercise of discretion merits favorable action. 2 Section 245, like section 249, does not specify the period for which good moral character
is required. Nevertheless, good moral character to warrant the exercise of descretion must exist for a reasonable period of time in
considering whether the exercise of favorable discretion is warranted'
   In the present case the respondent's crime, which involves moral
turpitude, was committed on or about September 20, 1961 and on
    Of. Oammarata v. Sahli, 163 F. Stipp. 125 (D.D. Mich., S.D. 1958).
    Matter of B—, 6 I. &N. Dec. 234.
    Cf. Matter of P—, 

 ; Matter of W—, 1st. Dec. 1088 ; Seozzari
v. Rosenberg, 

(1 593 (9th Qr. 1902), cert. den. 

 ; Braun- Vega
v. Esperdy, 62 Civ. 2487, S.D. N.Y. (11/9/62).

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November 1, 1961, upon conviction upon his plea of guilty, his
sentence to one year and one day was suspended and he was placed
on probation for a period of two years. He is presently on probation
to extend to November 1, 1963. He has been married only since
April 2, 1962, a period of approximately nine months. He has had
several additional minor brushes with the law.
  In view of the comparative recency of the respondent's crime, the
fact that he is at liberty only upon the restraint excercised by the
terms of his probation, the fact that he has been married but a short
time, and the evidence indicating that the respondent has not yet
fully solved his problem areas, it is believed that the favorable exercise
of the Attorney General's discretion is not warranted.
  Accordingly, WA TIPAd not consider whether the respondent's status
is susceptible of adjustment under section 245 of the Immigration and
Nationality Act. In view of this disposition of the case the Service
motion dated November 21, 1962, which is concerned with discretionary relief, will be denied.
   ORDER: It is ordered that the application for adjustment of status
pursuant to section 245 of the Immigration and Nationality Act be
denied.
  It is further ordered the Service motion to remand dated November
21, 1962, be denied.
  It is further ordered that the alien be deported to Belgium on the
charge stated in the order to show cause.




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