Interim Decision #1915
MATTER OF BERNABELLA
In Deportation Proceedings
A-14733481
Decided by Board October 18, 1968
Respondent, a native of Curacao, Netherlands Antilles, whose marriage to a
United States citizen occurred subsequent to his last admission to this
country (as a nonimmigrant) on or about May 23, 1967, is ineligible for a
nuns pro tune section 212(h) waiver of the criminal grounds of inadmissibility existing at entry; further, he is ineligible as of the present time for
a section 212(b) waiver hi the current deportation proceedings since section 212(h) benefits are available in deportation proceedings only in conjunction with adjustment of status under section 245 or section 249 of the
Immigration and Nationality Act, as amended, and respondent, a native of
a Western Hemisphere country, is ineligible for section 246 adjustment,
and since he entered the United States subsequent to June 30, 1948 he is
ineligible for the benefits of section 249 of the Act.
CHARGES:
Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) 1—Excludable at entry as person who admits commission of
crime involving moral turpitude.
Lodged: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)1—Excludable at entry, conviction of crime involving
moral turpitude.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE;
Alphonso A. Christian, Esquire R. A. Vielhaber
P.O. Box 327 Appellate Trial Attorney
St. Thomas, Virgin Islands 00902 (Memorandum filed)
These proceedings have been certified to us for review and final
decision. The special inquiry officer on July 26, 1968 after a reopened hearing, affirmed an earlier decision of November 15, 1967
in which he found respondent deportable as charged, denied his
application for voluntary departure, and ordered that he be deported to Curacao, Netherlands Antilles. At the reopened hearing
respondent applied for waiver of excludability pursuant to section
212 (h), Immigration and Nationality Act. This was denied by the
special inquiry officer.
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Interim Decision *1915
• The respondent is a 28-year-old married male alien, who is a
native of Curacao, Netherlands Antilles and a citizen of the Netherlands. Respondent's last admission to the United States was at
Charlotte Amalie, Virgin Islands, on or about May 23, 1967, at
which time he was admitted as a visitor for pleasure. At the time
he entered the United States he was married to a citizen of the
Netherlands and was the father of one child. In November 1967
he divorced this wife and he then married a United States citizen
on January 1, 1968 in Puerto Rico. Respondent is excludable
under section 212 (a) (9) of the Act as set forth more fully below.
It is on the basis of this marriage to a United States citizen that
the respondent is seeking a waiver of his excludability under section 212 (h), Immigration and Nationality Act. Respondent, however, does not concede that he is deportable. The special inquiry
officer found that he was deportable under the lodged charge and
not under the charge contained in the order to show cause, a conclusion with which we are in accord.
The facts are not in dispute that respondent, prior to his entry
to the United States, was convicted on at least three occasions of
crimes involving moral turpitude, to wit, theft in 1958, theft in
1960 and theft in 1968 (Exs. 5, 6 & 8). Respondent admits his
convictions. Therefore, respondent is an alien ineligible to receive
a visa and is excludable from admission to the United States
under section 212 (a) (9) , Immigration and Nationality Act.
Respondent seeks a waiver of his inadmissibility under section
212(h) of the Act on the basis that he is now the spouse of a
United States citizen, is otherwise admissible, and that his being
excluded and deported from the United States would result in extreme hardship to his United States citizen wife.
The respondent is not entitled to a waiver of his inad. aissibilitY
nuns pro tune for the reason that when he entered the country on
May 23, 1967, he was not then married to his present spouse and
thus at that time had no relation to a citizen or permanent resident as specified in section 212 (h) of the Act. Consequently, authority for a waiver did not exist at the time of his entry? Further, section 212 (h) by its wording clearly contemplates that the
admission for which a waiver of inadmissibility is considered
must have been for permanent residence. In this case respondent
entered the country as a visitor for pleasure.
A waiver under section 212(h) as of the present time is also
inappropriate. The benefits of section 212(h) are not :available in
1 Matter of P—, 7 L & N. Dec. 718; Matter of Caudillo-Vilktlobos, 11 L &
N. Dec. 15, 259; affirmed per curium 361 F.2d 329 (C. A. 5th, 1966).
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deportation proceedings unless granted in conjunction with adjustment of status under section 245 or under section 249. 2 Since
the respondent is a native and citizen of a Western Hemisphere
country, he is ineligible for adjustment under section 245. Also;
since he entered the United States subsequent to June 30, 1948,
he is ineligible for the benefits of section 249 of the Act.
The special inquiry officer denied voluntary departure in the
exercise of administrative discretion principally on the basis of
respondent's rather extensive criminal record. We will not disturb this decision.
Accordingly, we will affirm the decision of the special inquiry
officer in toto.
ORDER: It is ordered that the order of the special inquiry officer of July 26. 1968 denying respondent's application for voluntary departure and ordering his deportation to Curacao, Netherlands West Indies be and the same is hereby approved.
2 See Matter of DePmg) 8 I. & N. Dec. 68; Matter of DeGallotoalf,
8 I. &
N. Dec. 325.
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