DeLUCIA

                                                                              Interim Decision #1515




                                        MATTER        .or DE Lirmt*
                                   In Deportation Proceedings
                                                  A-11129289
                             Decided by Board April 21, 1966
(1) Claim of prejudgment is rejected absent evidence the outstanding order
   of the Attorney General has not been followed which directs all Service Ind                  ,

   Board officers exercising hearing powers to use their "Independent judgment" and "give each alien a fair and impartial tria:without prejudgment."
(2) Alleged undue publicity in the press does not preclude a fair deportation
   hearing; neither does Government refusal to permit counsel for respondent
   to review a character investigation report, not introduced into evidence; nor
   does denial of respondent's request to subpoena certain Government officials
  where it is clear from the record their testimony would not have been relevant to the issues of relief under sections 249, 212(h) and 243(h).
(3) In finding a lack of good moral character for the purpose1 of section 249
  of the Act, the special inquiry officer did not err in considering respondent'' ,
                                                                                    ilegambnctvsi1962,hmpronetfJuly193Odeber 1961, and his failure to testify truthfully during the reopened hearing.
(4) Notwithstanding respondent's long residence and close family ties in the
  United States, since the creation of a record of admission for permanent
  residence pursuant to section 249 of the Act, as amended, is a matter of
  administrative grace, his application therefor is denied where he has submitted no afflrmative emaenee or nix genuine reformation or rehablittatiOn
  and by his equivocal answers and his refusal to answer relevant questions
  during the hearing he has failed. to 'come forward with full information
  within his knoWledge regarding his. activities which has a direct bearing on
  his application.
(5) Reopening of proceedings for the introduction of additional evidence on -
 -the issue of political persecution is denied as no purpose would be served
  thereby since ample evidence of record affirmatively establishes that respondent, if deported to Italy, would not be subject to persecution within the
  meaning of section 243(h) of the Aet, as amended by 

because of his •criminal
                   ••   ■
                           record in the United States.
OnenaEs •
     Order: Act of 1952--Section 241(a) (1) 18 U.S.O. 1251(a) (1)3—Excludable
                           ' by the law existing at the time of entry, to wit: a

  *Affirmed, Le Lucia v. immigration and Naturatientjan Service, 

(0.A. T, 1966).

                                                        565
 Interim Decision #1575
                            person who has not presented an unexpired passport
                          or official document in the nature of a passport
                          issued by the government to which he owes allegiance, or other travel document showing his origin
                         and identity, as required by the Passport Act of
                         May 22, 1918, and the Executive Order in effect at
                         the time of entry.
            Act of 1952—Section 241(a) (1) [8 U.S.O. 1251(a) (1)]=Excludable
                         by the law existing at the time of such entry, to
                         wit: a person who has been convicted of a felony or
                         other crime or misdemeanor involving moral turpitude prior to entry into the rnited States, under
                         section 3 of the Act of February 5, 1.017, -to wit:
                         voluntary homicide.
  The respondent is a native of Italy. He has been found deportable under the provisions of section 241(a) (1) of the Immigration
and Nationality, Act as an alien who was excludable at the time of
entry, in that, he did not present the required immigration documents
and had been convicted of a crime involving moral turpitude prior
to entry, to wit, voluntary homicide (8 U.S.C. 1251(a) (1) ).
   The case was last before us in September of 1064. An order -entered on that occasion granted. the respondent's motion to reopen the
proceedings. for the "limited purposes" mentioned in. a stipulation
between opposing counsel which was approved by the Court of Appeals for the Seventh Circuit on August 27, 1964. Pursuant to the
Board's order, reopened hearings. were accorded the respondent in '
November 1964, February, March and June 1965.
  The respondent has applied for the creatiqn of a record of his lawful entry pursuant to section 249 of the Immigration and Nationality Act (8 U.S.C. 1259) ; a waiver of the criminal ground of inad- .
missibility under section 212(h) of the Immigration and Nationality Act, as amended (8 U.S.C. I182(h)) 'which if granted would
remove an existing bar to relief under section 249 (supra) and the
withholding of his deportation to Italy under the provisions of section 243(h) of the Immigration and Nationality Act (8 V.S.C.
1253(h)'). The 'special inquiry officer in an circler entered on October 25, 1965 denied the respondent's applications for discretionary
relief and ordered his deportation to England. An alternative order
   The "limited purposes" set forth in the stipulation provide in substance that
the case be remanded to the Board of Immigration Appeals on motion to reopen "solely for the purpose of presenting to a special inquiry officer (the
respondent's) application for relief under section 243(h) of the Immigration
and Nationality Act and for any other discretionary relief to which he deems
himself entitled and to have the special inquiry officer designate the country to
which deportation shall be effected." There is also a provision in the stipulition which provides that the respondent will waive any discretionary relief
now minable to him foi.•which he does not apply during the reopened hearing.

                                      566
                                            Interim Decision #1575

 of deportation to Italy was also entered if England is unwilling to
accept him. The respondent's appeal from this order is now before
us.
  'The respondent is a male alien, 67 years of acce. He last entered
theVnited States through the port of New York on August 12, 1920.
He was found deportable in 1959 as an alien who had entered the
United States without proper documents and as an alien who had
been convicted of voluntary homicide in 1917,' a crime involving
moral turpitude committed prior to entry: The order of deportation was affirmed, by the Circuit Court of Appeals for the Seventh
Circuit in 1961. De Lucia v. Flagg, 

, cert. den. 369 13.S.
837. The respondent is married to a lawfully resident alien and is
the father of two male American citizen children; veterans of World
War II and a -female American child, the mother of his five grandchildren.
  The record created during the reopened' hearings consists of some
370 pages of testimony and more than 130 exhibits. Extensive briefs
and supplemental briefs submitted by counsel for the alien and the
Deputy General Counsel of the Immigration Service are before us
for consideration. The record, the briefs and oral argument }rave
been thoroughly reviewed. Our decision, however, will be limited
solely to a determination of whether the respondent has been accorded a fair hearing and to a determination. of whether an exercise
of the Attorney General's discretion is warranted with respect to
relief under sections 249, 212(h) and 243(h) of the Immigration
and Nationality Act (sutra):

          THE ISSUE OF WHETHER TEE RESPONDENT HAS BEEN
                      ACCORDED A FAIR HEARING
   Counsel for the respondent maintains that his client has not been
accorded a fair hearing during the reopened proceeding. He alleges
that the special inquiry officer prejudged the respondent's applications for discretionary relief; that respondent's case has been prejudiced by undue publicity in the press; that there was prejudicial
error in that respondent was not permitted to examine a. character
investigation report and that favoritism was shown the G-ovirriment in the issuance of subpoenas and during the cross-examination
of the respondent whereas respondent's request to subpoena certain
local and Government officials and to cross-examine Government
witnesses was, wholly denied or extremely limited.
  We find no substance to counsel's claim that the respondent has
been denied a fair hearing on his applications for. discretionary
relief.

                                567
Interim. Decision #1575
   The respondent supports his claim of -prejudgment by a series 'of
exhibits (A 106 through. 124) which he alleges establish that all
Attorneys General since May of 1952 and some of the Commissioners
of Immigration and Naturalization have stressed the desirability of
giving top priority to the deportation of aliens alleged to be in a
class referred to as "racketeers." Counsel argues that published
statements of the various Attorneys General including the incumbent
Attorney General and certain Commissioners of Immigration and
Naturalization have committed officers within the Immigration
Service to an adverse course of action and bias against any alien
purported to be within the so-called "racketeer" .class.
  Similar .claims have been made in previous cases decided by this
Board.2 S WI claims have been supported with some of the documentary eiddence now before us. There was a claim of prejudgment
illthe Accartli and Marcello cases when they were before the Su
preme Court of the United States.. The claim of prejudgment was
rejected in both instances.'
   We reject the claim of prejudgment in the instant case for the
reason that respondent has failed to introduce any substantial evidence that the incumbent Attorney General or the incumbent Commissioner of Immigration and Naturalization has issued an expressed
or implied directive to rule adversely on the respondent's applications for discretionary relief. In fact, there is an outstanding order
of the Attorney General, issued April 23, 1954, which directs all
officers exereisitg hearing powers in the Immigration Service and
the Board of Immigration Appeals to exercise their power "fully and
faithfully" and use their "independent judgment and . . . discretion
as the regulations confer upon them . . . Those charged with the
duty of hearing and deciding (cases) must give each alien a 'air
and impartial trial without prejudgment ..." 6 We find no evidence
that the order of the Attorney General has not been followed in this
proceeding.
  Counsel argues that the respondent is entitled to an evidentiary
administrative hearing solely on the issue, of prejudgment of his applications for discretionary relief. He relies on. a decision by the

 ." Matter of Marcella, 

,   June 1953.
   shouchneasy v. Amara, 

 (1955) ; Moreau v. Bonds, 

 (1955)
  `At this stage of the proceeding counsel has made no claim that the Board of
Immigration Appeals has prejudged the respondent's applications for discretionary relief. The Board is not bound .by the special inquiry officer's order
and has full power of decision on issues of fact, law or discretion. Cf. Matter
            ,

of B—, 

 (A.G., 1956).
                                                    r
  s See Order No. 48 54 of the Attorney General ente ed as Exhibit A 11.
                    -




                                     568
                                                   Interim bepision. *1575
   Circuit Court of Appeals for the District of Columbia in the case'bf
   Bufalino v. Kennedy, 

 (June 1963) and a recent order
   of Judge Oliver Gasch of the United States District Court for the
  • District of. Columbia signed on February 23, 1966 (Civil Action No
    486-61).
      We find counsel's plea for a separate • evidentiary hearing on the
- issue of prejudgment without substance. Counsel has made no claim
    that this Board has prejudged the respondent's applications for discretionary relief. This Board has full power of decision with regard
    to the special inquiry officer's interpretation of the law, the facts and
   the exorcise of the discretionary relief the respondent seeks.
       Furthermore, the instant case is distinguishable from Buff 

 Bufalino's applications for relief under sections 249 and
    243(h) of the Inamigrition. and Nationality Act were denied by the
    District Director at Philadelphia, Pennsylvania and his order was
    thereafter affirmed by the Regional Commissioner. Both of these
    officials are charged with enforcement duties. The action' here under
    considerition has been taken and is being reviewed by officials of the
    Department of Justice who are concerned solely with adjudicative
    functions and the record contains a specific directive of the Attorney
    General which commands these officials to exercise their own independent judgment and give each alien a fair and impartial hearing
    without prejudgMent (supra s) . There has been no judicial finding
    in the case before us that a prima fade case of prejudgment has been
    presented by the present record.• We find no substance to counsel's
    plea for a separate evidentiary hearing on the issue of prejudgment
    in light of our review of the record before us.
       Counsel also maintains that the respondent's hearing has been
    rendered unfair and that his applications for relief have been prejudiced by the fact that the case has received undue publicity in the
    press. 8 OFIt'242.16(a) provides in part that "Deportation hearings shall be open to the public, except that the special inquiry officer
    may, in his discretion and for the purpose of protecting witnesses,
    respondents, or the public interest, direct that the general public or
    particular individuals shall be excluded from the hearing in any
    specific case." We find nothing in the record. which indicates that
    counsel for the respondent requested a closed hearing for the purpose
    of proticting the respondent or any of his witnesses from any undue
    Publicity which a: case such as this would normally produce.
       Counsel alleges that thi publicity in this case created such an atmosphere that the "fountain of justice was poisoned at its source
    . . -Before the hearing began" (record of oral argument, p. 3) and
  • that under these circumstances it was impossible for the special in-
                     ,-
                                       569
 Interim Decision #1575
  quiry officer to give the respondent a, fair hearing. Again, counsel
  has submitted no substantial evidence to support his allegations. At •
  page 220 of the transcript -of the record, the special inquiry.officer
  stated, "I intend to make my decision in this matter on the evidence
  in the record and not on the basis of any newspaper stories ... this
 matter is not being tried before a jilry, and I'm, the person that (is)
 going to consider the evidence." At page 376 0 of the record, the
 special inquiry officer made a similar statement when denying counsel's motion for a change of venue. At page 29 of his opinion the
 special inquiry officer stated he would disregard. "preis releases and
 newspaper reports relating to the respondent (and) submitted, by raspondent's counsel."
    Counsel asserts that the respondent has been prejudiced and his
 hearing rendered unfair by reason of the fact th)t the Government
 refused to permit examination of a character investigation which the
 trial attorney concedes was intensive but which Was not offered in
 evidence by the Government. Counsel maintains that an intensive
 examination of the respondent could not fail to develop some favorable factors- in support of his (respondent's) application for discretionary relief. Counsel takes the position that "fair.play" requires
the Government to present all the evidence at its disposal and that
the Government should. not' e a party to the suppression of evidence.
    An, alien who applies for discretionary relief •has the burden of
establishing his eligibility therefor. Matter of T—A.5-1 7---,

, B.LA. (September 1957) ; Matter of 7—, 7 L & N. Dec.
697, M.A. (March 1958). • The trial attorney stated for the record s
that there was "no favorable evidence that I know• of'‘(presumably
in the character investigation report) and that counsel for the-respondent was "at liberty to introduce any .favorable evidence (that he
felt would) help (his) cam!' (R pp: 253-254) The respondent did
not produce a single character witness to support. his claim of good
character. Since the Government did not introduce the character
report in evidence, counsel for the respondent was not entitled. to
review it. '
  Respondent, through counsel, asserts that he was not accorded
equal treatment with the Government in that his requests for the
subpoenas of witnesses were wholly denied. whereas the Government's
written application for subpoenas submitted. in advance of the hearing was graiited. As we view the record there has been full Compliance with 8- CFR 287.4, the regulation governing the issue of subpoenas. We note that the Government did not call any of the witnesses who had been subpoenaed prior to the start of the hearing.
We find no error in the special inquiry officer's denial of respond-

                                570
                                                . • Interim Decision #1575

ant's request to subpoena certain Government officials since it is
clear frcira e the record that their testimony would not have been
relevant to the issues of relief under sections 249, 212(h) and 213(h)
of the immigration. and Nationality Aet and would have only cluttered the record with negative evidence.
   Counsel asserts that the Government was. permitted unlimited
cross-examination of the respondent whereas had' the respondent
sought to recall an adverse witness he would have been severely limited (R-255, et seq.). He maintains 'that the respondent had been
thoroughly cross-examined on three days by the original trial attorney and that tho substitute trial attorney sought to reexamine him on
matters already in the record. Section 242(b) of the Immigration
and Nationality Act (8•U.S.C. 1252(b)) provides the special inquiry
officer with ample authority to permit such cross-examination of an
alien as he deems appropriate for a proper disposition of the case.
Where the exercise of discretion is the issue before the special inquiry
officer,,he is pernxitted wide latitude in seeking the truth and exposing falsehood. We find no substance to counsel's allegations that the
special inquiry officer's rulings in this area denied the 'respondent a.
fair hearing. Cf. Matter of S—, 5 L & N. Dec. 60, 33.I.A., January
1953; Matter of T , 

, May 1962.
                     —




CREATION OF A RECORD OF LAWFUL ADMISSION UNDER SECTION
 '249 OF THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED,
 AND WAIVER. OF THE CRIMINAL GROUND OF EXCLUSION PURSUANT 'TO, SECTION 212(h). 'OF THE SAME ACT (AS AMENDED) (g    .

  U.S.C. 1259 AND 1182(h))
  The respondent seeks to set aside the outstanding order of deportation by the exercise of the discretion granted the Attorney General
pursuant to section 249 of the Immigration and Nationality Act, as
amended (8 U.S.C. 1259). This provision of, the statute authorizes
the Attorney General, "in his discretion," to create a record of lawful
admission in the case of any alien who has "no, such record ... otherwise available and who—
   (a) entered the United States prior to June 30, 1948;
   (b) has had his residence in the United States eontinuously:since
     such entry;
   (a) is a person of good moral character; and
  (d) is not ineligible to citizenship; . . . provided the alien 'is not•
    inadmissible under section 212(a) in so far as it relates to
    criminals, procurers and other immoral persons . . e
 ° There . are other classes of inadmissible aliens not pertinent here.

                                      571
Interim Decision #1575

In conjunction with an application for the creation of a record of
lawful admission an otherwise eligible alien who is inadmissible as
n criminal under paragraph (9) of section 212(a) of the Act "may
request a waiver of such ground of inadmissibility pursuant to the
provisions of section 212(h) of the Act, as amended" (8 CFR 249.1).
   The respondent meets the statutory requirements of section 249 of
 the Immigration and Nationality Act in so far as they relate to the
nonexistence of a record of his lawful admission for permanent residence; his entry prior to June 30, 1948; his continuous residence in
the United States subsequent to such entry and his eligibility for
citizenship. The only issues before us in connection with the eligibility of the respondent is whether he is a: personof good moral character and warrants an adjustment of his immigration status as a matter
of discretion.
  The respondent has the burden of establishing that he is eligible
for the relief he seeks and that he should be granted such relief in
the exercise of the Attorney General's discretion (8 CFR 242.17(d) ).
The special inquiry officer finds that the respondent has not met this
burden.
  When an alien seeks the favorable exercise of the. Attorney General's discretion, it is incumbent upon him to supply such inforination that is within his knowledge and is relevant and material to a
determination of whether he is a person of good moral character
 (of. Matter of Amando Afariani, Int. Dec. No. 1478, B.1.1., June 8,
1965; Kim v. Rosenberg, 

, 42 L.ed. 2d 1299 (1960) ;
Mated Stater,' v. Anastasio, 

 (D.C. N.Y., April 1954),
reversed on other grounds 

, cert. den. 

).
  The special inquiry officer concludes that the respondent has not
established that he is a person of good moral character and accordingly is not statutorily eligible for relief under section 249 of the
Immigration and Nationality Act, as amended. The evidence supporting this conclusion is fully set forth in the special inquiry officer's
opinion of October 25, 1965. It is incorporated herein by reference
and will not be repeated.
  The special inquiry officer refers to three basic reasons for denying
respondent's application for relief under section 249 (supra-). He is
convinced that the respondent did not testify truthfully during the
reopened hearings. He gives considerable weight to the fact that the
respondent was in prison for over 20 months during the five-year
period immediately preceding the filing of his application under section 249 and he gives weight to the respondent's admitted large -- scale,
illegal gambling activity 111_1962 (p.. 40, special inquiry officer
opinion).
                                   572
                                         - Interim Decision #1575
  During the course of the -hearing, the respondent on numerous occasions, on advice•oPcounsel, refused to comply with the special inquiry officer's directive that he respond to questions concerning his
assets, income and activities (R pp_ 54 339). For example, the
                                           -


respondent refused to answer relevant questions concerning his criminal convictions in Italy (pp. 269-272) ; his entry into the -United
States under an assumed name (pp. 272-274) ; his fraudulent naturalization (pp. 276-282) ; his conviction in-1944 for conspiracy '
to commit extortion (pp. 282-284) ; his conviction for income tat
evasion in 1957 (pp. 286-288) ; and the source and nature of his income over a period of 36 years (pp. 289-293-297-298). -
   Furthermore, the respondent gave equivocal answers to many questions which should have been within his knowledge and which we
deem relevant to a determination. of 'whether discretionary relief is
warranted. He did not remember in whose names some $64,000 in
Government bonds were held at the time he entered jail—"I think
they were in my name or my wife . I don't 'remember." He did
not remember financial transactions involving large sums of money
which occured while he was in jail and which were reported on his
1961 tax returns (pp.. 307-310).
   When questioned as to "Where did the money come from to buy
the bonds?" the respondent answered, "I don't remember buying
any bonds." (pp. 311, 312) and he could not explain-how he could,,
make such large financial transactions while he was in jail (p. 316).
He refused to explain where he obtained $101,000 in cash to pay his
income taxes for 1948, 1949 . and 1950 (p. 317). He refused to explain the nature of some $89,000 listed as miscellaneous income in his
1964 income tax returns (p. 318). He declined to furnish a break
down of his race track winnings for 1964 (p. 320) and also refused
to answer the question, "During 1964 did you receive payments of
any kind from any person, group or organization other than the interest payments and the race track winnings listed as miscellaneous
income on your 1964 income tax return?" (p. 324) He refused to
bring in his personal records of the income he received during the
past three years . although he admitted keeping such record (p. 327).
The respondent in-answer to a question which referred to the fact
that he won approximately $91,000 in a period of one and a half
months preceding the time he went to jail testified, "I can't help it
if I win in 30 or 60 days $91,000." (p.s334435)
   The respondent's refusal to furnish information which is peculiarly within his knowledge is a factor which may be considered by •
the special inquiry officer in exercising the Attorney General's
ereticm. (Int. Dee. No. 1478, supra).   An alien seeking a favorable

                                573
 Interim Decision #1575',
 exercise -of discretion cannot limit the inquiry to the favorable aspects of the case and reserve the right to be silent on the unfavorable
 aspects. Matter of Y—, 

, 700, B.I.A., March 26,
 1958. We 'find on this record a sound: basis for the special inquiry
 officer's conclusion that the respondent did not testify honestly and
 truthfully and was concealing facts within his knowledge.
    Counsel urges that the respondent's illegal gambling activities in
 1962 furnishes no basis for the special inquiry officer's conclusion
that the respondent is not a person of good moral character. While
it is true that section 219 of the Immigration and Nationality Act, as
 amended, does not require an applicant for relief to establish good
moral character for any specified period of time, nevertheless, we
believe that an illegal $10,000 bet on the World Series and an illegal
$15,000 wager on a prize fight in 1862 are factors properly considered by the special inquiry officer in reaching a conclusion as to-iiiilther the respondent is a person of good moral character (11-pp. 130-
131). The respondent, in fact, testified that for, most of his life he
has derived his income principally from betting on horse races (pp.
97 & 98). According to the record his last.profitable employment asthe owner of a business was in 1922-1923 when he operated a restaurant (p. 165). We find no error on the part of the special inquiry officer in considering the respondent's illegal gambling activities as a factor, in reaching a conclusion that relief is not warranted
on this record.
   Counsel maintains that the respondent's incarceration from July
1, 1959 until his release on parole in October of 19'61 is not a factorwhich should be considered by the special inquiry officer in reaching
a conclusion as to whether respondent is a person of good moral
character because section 249 only requires a finding of present good.
moral character. We. do not agree with counsel? Section 101(f)
of the. Immigration and Nationality Act (8 U.S.C. 1101(f)) is the
congressional expression of standards which must be adhered to in
making a finding of good moral character "for the purpose of this
Act," namely, the Immigration and Nationality Act. The statute-

  I Section 101(f) of the Immigration and Nationality Act reads in part as follows: For the purpogea of this Act—)To person shall be regarded as, or found
to be, person of good moral character 'who, during the period for which
good -morel character is required to be established, is or was (7) one who
during such period has been confined, as a. result of conviction, to a
penal institution for an aggregate period of one hundred and eighty days- or more, regardless of whether the offense, or Offenses, for which he had been
confined were committed within or withdut such period.' (Bmphasis supplied.).

                                     574
                                                Interim Decision #1575
provides the special inquiry officer with the alternative . of making a
finding of good. moral character as well as an expression of whether
he "regards" the person seeking discretiongry relief to be a person of
 .rood moral character. It has been held that the standards set forth
 in section 101(f) (supra). should be taken into consideration, along
with other factors, in determining whether the requirement of good
Moral character has been met. Matter of P.—, 

 (1958).
   We realize that good moral character does not mean moral excellence. We are also aware of the fact that moral standards differ
from time to time and from place to place. We do not believe that
a person's good moral .character is lost by a single lapse .over an
atended period of time. This respondent, however, has made no attempt to introduce evidence which would establish that he measures
up to the standard of the average Ameiican citizen as it exists today_
It mulct be said that on this record thirespondent's reputation would
pass muster with that of an average man or that he is regarded as a
 person of good moral- character.
   While there is substantial evidence which supports the special inquiry odder's finding that the respondent is not a person of good
 moral, character and therefore statutorily ineligible for relief under
 section 249, we prefer to deny relief as a matter of administrative
 discretion for the reason that the respondent, as an applicant for administrative grace, has not come forward with full information that,
_is within his knowledge. The information sought hai a direct bearing on his application for relief under section 249 of the Immigration
 and Nationality Act, as amended (supra). An applicant for the
 creation of a record of his lawful admission for permarient residence
 has the burden of satisfying the Attorney General that an exercise
 of discretion is warranted. Under the circumstances, he must, upon
 the request of the Attorney General or some one acting for him,
supply such information that is within his knowledge and has a direct bearing on his eligibility for relief under the statute. We w,i,;11
deny the respondent's application for relief under section 249 of the
 Immigration and Nationality Act, as amended, as a matter of administrative discretion.
   The need for a wailer of the criminal grounds of inadmissibility
 under section 2124h) no longer exists because the record of the respondent's lawful admission for permanent residence will not be
treated. Under the circumstances, the respondent's application for
 relief under section 212(h) of the Immigration and Nationality Act
becoMes moot.
                                  575
 Interim Decision' #1575                                  •
 THE APPLICATION FOR A STAY OF DEPORTATION UNDER SECTION
  243(h) OF THE IMMIGRATION AND NATIONALITY ACT (8 U.S.C.
  1253(h))•
   Pursuant to section 243(a) of the Immigration and Nationality
  Act, the respondent designated England as the country to which he
  wished to be deported in the event an order of deportation was entered (p. '29). The order entered by the special inquiry officer on
. October 25, 1965 directs his deportation to England provided that
  country is Willing to accept him, otherwise to Italy, the country of
  his birth and the country from which he last entered the United
  States.
    The respondent applied for the withholding of his deportation to
  Italy pursuant to section 243(h) of the Immigration and Nationality
  Act (8 U.S.C. 1253(h)) (Ex. A 61). The affidavit supporting respondent's applicationestates in substance that his criminal record in
  the United States and the fact that he has been described by public
  officials us a "racketeer" and as one of the leaders of the Chicago
  "Cosa Nostra" would render him subject to severe limitatjions and
  punishment if returned to Italy. He also Claimsthat his deportation
  to Italy would injure him physically and mentally because he would ;
  be separated from his family and is in Constant need of medical cafe
    The evidence supporting the respondent's application for relief is
  fully discussed in the opinion of the special inquiry officer dated
  October 26, 1965, and will not be repeated. 'file discussion is incorporated herein by reference (pp. 47-52, special inquiry officer
  opinion).
    The hearing on the issue of withholding deportation' was con- •
  ducted and the decision of the special inquiry officer was rendered
 prior to the effective data of the amendment of the Immigration and
Nationality Act by 

(December 1, 1965). 

was enacted, however, on October 3, 1965. The special
inquiry officer in his decision of October 25, 1965 fully considered the
respondent's application for relief under section 243(h) in light of
the amended version of the statute 8 which became effective on December 1, 1965.
  Counsel urges that if the amended version of section. 243(h) is to
be applied in the instant case then respondent should be afforded an
opportunity in a reopened hearing to prove that he would be perseCuted for political reasons under the Italian law presently in force.
Counsel proposes to show at v. reopened hearing that political con-

   Section 243(h) of the Immigration and Nationality Act (8 U.S.C. 1258(h))
was amended by striking the term "physical persecution" and inserting'in lieu
thereof "persecution on account of race, religion or politick' opinion."

                                    576
                                                  Interim Decision #1517,i

 stderations decide whether Italy would exile a deportee in the respondent's position of a stateless person without any rights of Italian citizenship.
   The respondent has had ample opportunity to introduce evidence
 concerning his claim that he would be "persecuted for political reasons." The record contains an affidavit on Italian law prepared. by
 Dr. A. Luini .del Russo (Ex. A 62) and her testimony in another
 case involving an application for relief under section 243(h) e the
 deposition of Paola Alberto Rossi taken at the American Embassy - in
 Rome, Italy on March 1, 1965 (Ex. A 102) and an official communication from the Italian- Government entered as Exhibit A 134.
   It is clear from the testimony of Dr. Russo and Feeds _Rossi that
 the restrictions imposed by the Italian Publie Safety Act of 1956
 (Ex. A 102) apply generally to all Italian citizens and are not di:
 rected solely against criminal deportees from the United States. The
 "Note Verbale" from the Italian Ministry of Foreign Affairs -(Ex.
 A 134) states in part: "A person deported from the United States
 for criminal activities is free to select his place of residence in Italy
 ... A deportee is not subject to police measures, unless he gives rise
 to suspicion that he is engaging in illicit activities . . . or associating -
 with people of reputation... It may be useful to add in this connection that the party concerned (respondent) has the right to appeal to a court of appellate jurisdiction and eventually to the Supreme Court against the decision whereby restricted measures" are
 assessed on him."
   The Italian Foreign Ministry. also stated that there were some MOO
 persons now in Italy who were deported from the 'United States
 of America for criminal activities. "Although many of these persons
 were deported for serious criminal violations committed in the United
• States of America, none of these 200 deportees is at present subject to any special restrictions under the Law of December 27, 1956.
 There is no provision of law now in force in Italy under which police
 restrictions can be imposed on persons who have committed crimes in
 other states in the past, whose conduct is now irreproachable and
 law abiding." (Ex. A 134)
   We do not believe any purpose would be served in remanding the
 case to afford the respondent an opportunity to introduce additional
 evidence on the issue of "political persecution" in light of the official
 communication from the Malian Ministry of Foreign Affairs intro- •
 duced in evidence as Exhibit A pi. Furthermore, the testimony of
the respondent's witnesses, Dr. Russo and Paola Rossi, we believe
supports the position taken by the Ministry of Foreign Affairs of
  'Matter 07 Parfet, A-81£46T63,      December 7. IMO.

                                     577
Interim Decision #1575 -
the Italian Government. There is ample evidence now of record
which affirmatively establishes that the respondent cannot satisfy
the statutory requirement that-he would be subjected to persecution
in Italy "on account of race, religion or political opinion" (section
243(h) as.amended by 

).
   Counsel argues that the statement of the Italian. Foreign Ministry
is not admissible as evidence unless an. official of the Italian Government is produced for cross-examination. We note that it was respondent's counsel who originally requested that the statement be obtained from the Italian Government: Furtherinore, relief under section 243(h) is a matter of discretion and as such the respondent does
not have as a matter of right, the cross-examination of witnesses as
provided in section 242(b)-(3). Discretionary action by its very nature permits wide latitude to the authority charged with-its exercise.
The Attorney General may consider any evidence which would be of
 assistance in formulating "his opinion •(that) the alien would be
subject to persecution on account- of race, religion or political opinion." Dolma v. Shaughnessy, 

 (CA. 2, 1953) ;
        Evenly, 

 (CA. 2, 1961), cert. den. 

;
igantisani v. Holton, 

 (CA. 7, 1957).
   Counsel maintains that under the savings clause of the 1952 Act
 (section 405(a) ; 8 U.S.C. 1101, footnote) the respondent's application for a. stay of deportation. under section 243(h) must be judged
by the law existing prior to its amendment by 

Counsel cites no authority to support this contention. It is well established. that -where a statutory provision as to administrative dis-
-oration is changed between the hearing before the special inquiry offi-
-ter and:_ final decision by this Board we must apply the amended version of the law. Poti v. Immigration thad Natetralimtinn &ram,

 (CA. 2, May 1964) ; Patsis v. Immigration and Natwra712ation Service, 

, October 1964; cf. Matter of George,
Int. Dec. No. 1533, B.I.A., December 16, 1965. ,
   We affirm the order of the special inquiry officer denying respondent's application for withholding of deportation to Italy pursuant
to the provision's of section 243(h) of the Immigration and Nationality Act as amended by Public Law 88 236, effective December 1, 1965.
                                       -




     THE LEGALITY OF THE ORDER DIRECTING DEPORTATION
                         TO ITALY
  Counsel contends that the deportation order entered by the special
inquiry officer is illegal for the reason that there is no evidence of
record that the Italian Government is presently willing to accept
the respondent as a deportee. Counsel takes the position that section 243(a) of the Immigration and Nationality Act (8 U.S.C.
                                 578
                                                    Interim, Decision #1575

 1253(a.)) provides for orders of 'deportation to alternate countries
 only where such country is willing to accept the alien: He cites
 in support of his position three•cases concerned with actions brought
 by Chinese aliens contesting the execution of orders of deportation
 to either Communist China on the mainland or the Nationalist
 Government of China on Formosa." We note that counsel did not
 raise this issue before the special inquiry officer (R—p. 29).
   The cases cited by counsel are easily distinguishable from the case
 before us. This case does not present the problem which often
 confronts the Government in dealing with aliens of Chinese origin
 who were born on the mainland of China prior to the .time the
 . Nationalist Government . (recognized by the United States) was
   forced to withdraw to Formosa. The cited cases • are concerned
  with the execution of an' order of deportation and not' with an
  administrative determination of the place of deportation in accordance with the provisions of 8 CFR 242. '8 CFR 242.8 provides the
  special inquiry officer' with authority "tO. determine deportability,
    .. (and) .. to determine the.country to Which an alien's deportation will be diitected in accordance with section 2,48(a) of the
  Act . ." •(8 U.S.C. 1253(a)).
     Where there is p,11 ancillary metier before the special, inquiry
  officer, such as an application for a temporary withholding of deportation pursuant to section 248(h) of the Immigration and Nationality Act (8upra)i the current regulation (8 CFR 242.17(c))
  provides that .the alien shall be notified.of his right to designate
  the corn-try to which he•wishes to be deported and that the special  -


  inquiry officer's order shall direct the alien's deportation in the first
  instance to the country so designated. 8 CFR 042.17(c) also provides: "The special inquiry officer. shall then' (namely, after
  directing deportation to. the deb: country) specify and state
  for the record. the country or countries in the .alternatei to which
  respondent's deportation will be directed pursuant to section 243(a)
  of the Act if the country of his designation will not accept him,
  into its territory, or fails to furnish timely notice of acceptance,
. or the respondent declines to designate a country."
. The special inquiry officer's order complies fully with the procedural pattern shelled out by the statute and the regulations set
  forth in. 8 CFR 242. The special inquiry officer's decision makes a
  finding that the respondent is "a native of Italy, who claims he is
   "La V. Rogers, 164 F. Saint 320 (D.C: DC. 1958), aff'd 

 (0.A. D.C. 1958) ; U.S. es reL Torn Man v. Shaughnessy, 142 F. Stipp. 444, D.C.
          (1956) ; a S. es re/. Lee Ming Hon y. ffhaugAneaag, 142 F. Stipp. 468
 (D.C. S.D.N.x. law).

                                     579
 Interim Decision #1575
  now stateless" (p. 2 of the special inquiry officer opinion). The
  record establishes that the respondent last entered the United States
 through the port of New York on August 10, 1920 and that his last
 'place of residence prior to entry was Italy (Pm. A '75)_ Section
 243(a) of the Immigration and Nationality Act (8 U.S.C. 1253(a))
 specifically states that an alien may be deported "(1) to the country from which such alien last entered the United States; (and)
  (3) to the country in which he was born" unless the country
 •designated by the alien is willing to accept him. Accordingly, we
 find no basis for counsel's assertion that the order entered by the
 special inquiry officer is illegal. It is elementary that before such
 'a claim of illegality can be made there must be a final order of
 deportation after appropriate administrative and judicial review.
 'Otherwise, there would be no point in negotiating with a foreign
 country to determine whether it will accept a deportee,.
    Counsel also urges error in that, the order entered by the special
 inquiry officer does not conform to section 8(b) of the Administrative Procedure Act which requires findings of fact, conclusions of
 law together with the reasons or basis for the administrative action
 on material issues of fact, law and discretion. find no error.
 The special inquiry officer's decision does make a finding with regard to the place of the alien's birth and there is evidence of record
 that Italy is the country of his last residence 'prior to entering the
 United States (p. 2, special inquiry officer opinion and Ex : A 75).
 Furthermore, the procedural requirements of the Administrative
 Procedure Act are not applicable to deportation proceedings under
 the immigration laws. Marcella v. Bonds, 

, 99 Led.
 1107 (1955). There is no requirement in either the statute or the
 regulations that the special inquiry officer make formal findings of
'fact and conclusions of law to support an order deporting an alien
 to a foreign port or place.
   We find no substance to counsel's claim that the order entered
 by the special inquiry officer directing the respondent'sp,alternate
 deportation to Italy is illegal. The order is hereby affiimed.
                            CONCLUSION
    The respondent, now 68 years of age, has resided in the United
  States for more than 45 years. He last entered the United States
, with fraudulent documents on August -10, 1920. He married a
  lawfully resident alien in 1927 (pp. 109 110). Three children have
                                         -


  been born of the marriage, a daughter and two sons. Both of the
  respondent's sons served in the United States Army and were
 honorably discharged. There is evidende that one of his sons is

                                 580
                                                   Interim Decision #1575
mentally ill but capable of handling his own financial affairs. He
 receives compensation amounting to $250 per month from the
Veterans Administration (Ens: A 69 & 70).
   A physician, called by the- respondent, testified that in his opinion
the respondent's deportation would have an injurious effect on. his
health and life. He diagnosed the respondent's physical condition
as follows: coronary insufficiency, hypertension due probably to art-
.erioselerosis and emotional factors, a deteriorated kidney, enlargement of the prostate gland, diabetes and low grade anemia (Ex. A
'68). The physician expressed - his belief that the respondent's deportation may cause a relapse in the 'condition. of his mentally ill
 son. The witness concedes, however, that the respondent has. had
a kidney ailment since the removal of one of his kidneys in 1948
and that he (respondent) has been afflicted with diabetes since 1942
 (pp. 63 & 64).
   Against this background of long residence in the United States
after a fraudulent entry, close family ties in the United. States,
and rather poor physical conditiori; we have a 68-year-old alien who
-committed two homicides in Italy prior to his e4try (Ex. 36) ; an
alien who obtained a fraudulent naturalization in 1928; an alien
who was convicted of conspiracy to commit extortion in 1943 and
 sentenced to ten years' imprisonment 11 (Ens. A 64 & A 65) ; an
alien , whose fraudulent natdalization was revoked in 1957; and
 an alien who was, convicted for income tax evasion in 1959 _and
sentenced to three years' imprisonment -and a $15,000 fine.12 .
   A careful review of the voluminous record clearly establishes
 that the respondent's plea for adininistrative grace is based, primarily on negative evidence concerned with his criminal Convictions,
the source from which he has derived the major portion of his
income over the past 35 years and the alleged unfairness of the
conduct of the reopened hearing by the special inquiry officer rather
than affirmative evidence of his rehabilitation and present worth in
the community in which he resides. The respondent did not produce a single witness or affidavit to establish his reputation or
support his claim of good moral character. There is nothing to
show that the respondent is aware of the gravity bf his past misconduct. His counsel, in fact, stated for the record, "I concede
that his (respondent's) reputat ion is not good, yes, but I don't
concede that there is justification for it (It-p. 37)
  P He served three years and eight months of the ten-year sentence and was
paroled- (Er. A 04, PP. 2 & 10).•
  "The respondent was incarcerated         Tidy 1, 1959 until October kit 1961.
continuing on probation for an additional period of three rears:

                                     681
Interim Decision #1515
  We" have fully considered the humanitatian aspects of the respondent's case. It is diffichlt if not impossible to define any standard for judging discretionary matters' of the nature presented by
this case. We have in the past exercised - the discretion given the
Attorney General by the immigration laws to•waive criminal grounds
of exclusion where the record affirmatively establishes: (1) long
residence in the United States; (2) close family ties in the United
States who would be adversely .affected by the denial of discretionary
relief; (3) the crime or crimes committed by the alien are remote
from the date of the application for discretionary relief, and most
important of all (4) there is an affiimative showing, of genuine
reformation over a reasonable period of time.
  We find no substantial evidence in this record which would support a claim of genuine reformation and rehabilitation on the part
of the respondent. He refused to answer questions &ineerning his
 reputation in the City of Chicago (R—pp. 388-341). He refused
to comply with the .special inquiry officer's repeated directives to
furnish a net-worth statement and other information concerning
 the source of his ikcsme which according to his income tax returns
'amounted to more titan $100,000 during the years of 1959 and 1962.
 (Exs. A 80, A 85 & A. 86) •11—pp. 320, 349, no, 378). He refused
to answer questions as to whether he had ever engaged in bootlegging or extortion; whether he had ever been associated with a
group engaged in illegal activities; and whether he had ever received. any monetary payments from such a group or from such
activities (R pp: 291 292).
            —        -                                             -
   The respondent's refusal to answer such questions leaves only'one
inference, namely, that his illegal activities are of a continuing nature. He has submitted no affirmative evidence of a genuine reformation and rehabilitation although the burden is upon him to support his application) for diseretionary relief • with such evidence.
Under the circumstances, we have no other alternative but to dismiss the appeal., An appropriate order will be entered.
   ORDER: The order entered by the special inquiry officer denying
relief under sections 249, 212(h) and 243(h) of the Immigration
and Nationality Act, as amended, is hereby affirmed.
   It is further directed that the appeal be and the same is hereby
dismissed. .




                                582