Interim Decision #2142
MATTER OF AWAISANE
In Deportation Proceedings
A 18981180
-
Decided by Board April 5, 1972
(1) Respondent's 1967 conviction in Lebanon of attempted murder in 1964, a
crime involving moral turpitude, for which he was sentenced to 7% years with
sentence commuted to 6 months imprisonment is not a conviction classifiable
as a "petty offense" within the Meaning of section 212(a)(9) of the Immigration
and Nationality Act, as amended.
(2) Notwithstanding conviction occurred within the statutory 5-year-period,
since the offense of which convicted was committed more than 5 years ago,
respondent is not precluded by the provisions of section 101(f) of the Act from
a finding of good moral character during the requisite period for the purpose
of establishing statutory eligibility for voluntary departure under section
244(e) of the Act.
(3) A waiver of inadmissibility under section 212(dX3XA) of the Act is, by the
specific terms of that provision, applicable only to admission as a nonimmigrant.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(aX2)}—nonimmigrant visitor—remained longer.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
John W. Harrigan, Esquire Irving A. Appleman
1712 First National Bank Bldg. Appellate Trial Attorney
Minneapolis, Minnesota 55402
This case presents an appeal from an order of the special inquiry
officer denying respondent's applications for adjustment of status
pursuant to section 245 of the Immigration anti Nationality Act, as
amended, and for the privilege of voluntary departure. He ordered
that the respondent be deported to Lebanon. The respondent's
deportability was conceded through counsel and has been established by clear, convincing and unequivocal evidence. The special
inquiry officer's denial of section 245 relief is affirmed. We find the
respondent eligible for voluntary departure and will grant him
that privilege.
The respondent, a native and citizen of Lebanon, age 36, has
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Interim Decision #2142
resided in the United States since his arrival here in October 1969
as a visitor for pleasure. He has been granted a waiver under
section 212(dX3)(A) of the Act in order to visit his sick mother for a
period of one month. A fifth preference visa petition, filed in his
behalf by a United States citizen brother, was approved in January 1970. His application for permanent residence was denied by
the District Director, however, for the reason that he was inadmissible under section 212(a)(9) on the basis of his conviction in 1967
for the crime of attempted murder in 1964.
The following facts relate to the offense for which respondent
was convicted. Aware of rumors that his wife was involved in an
illicit relationship, the respondent encountered the accused lover
one evening after observing him in the company of his wife. A
scuffle ensued and both men were stabbed with knives prohibited
by law. The enraged respondent then entered his home and
stabbed his wife several times with the apparent intent to murder
her. All three individuals were hospitalized. The respondent's wife
and her male friend were later acquitted of adultery charges. A
Lebanese court found the respondent guilty of the felony of
attempted murder under Article 547 of the criminal law and
imposed upon him a sentence of seven and one -half years. The
sentence was commuted to six months' imprisonment on the
ground that there was some apparent justification for the respondent's outburst_ Respondent is now divorced from his wife and
she has remarried. Their three children, ranging in age from 9 to
16, still reside in Lebanon with respondent's sister and he contributes to their support. Beside his mother, respondent also has two
brothers living in the United States. He has been steadily employed here.
Counsel asserts on appeal that respondent is not ineligible for
section 245 relief as one inadmissible under section 212(a)(9) of the
Act. He contends (1) that the Lebanese conviction was not for a ,
crime involving moral turpitude; and (2) in any event, the conviction comes within the "petty offense" exception of section 212(a)(9).
We reject both arguments and sustain the special inquiry officer's
conclusion that respondent is inadmissible under section 212(aX9).
Whether a particular. crime involves moral turpitude is determined by the standard prevailing in the United States, Mercer v.
Lowe, 96 F.2d 122.(C.A. 10, 1938), cert. denied
305 U.S. 611. Moral
turpitude inheresdnt.the intent. We have held that malicious
intention or what is !equivalent to such intention is the broad
boundary between - crimes -involving moral turpitude and those
which do not, Matter of P—,
2 I. & N. Dec. 56 (BIA, 1948), and
Matter of E—,
2 I. & N. Dec. 134 (BIA, 1944). There is no distinction
for immigration purposes in respect to moral turpitude, between
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Interim Decision #2142
the commission of the substantive crime and the attempt to
commit it; U.S. ex ?el. Meyer v. Day, 54 F.2d 336 (C.A. 2, 1931). The
term moral turpitude has been defined by the Attorney General as
anything done contrary to jUstice, honesty, principle, or good
morals; an act of baseness, vileness or depravity in the private and
social duties which a man owes to his fellow man, or to society in
general, Matter of Sloan,
12 I. & N. Dec. 840, 849, 854 (BIA, 1968).
On the record before us, we conclude that the crime of which the
respondent was convicted did involve moral turpitude, cf. Matter of
Szegedi,
10 I. & N. Dec. 28 (AG 1962).
Under 18 U.S.C. 1, any offense punishable by death or imprisonment for a term exceeding one year is a felony, any other offense
is a misdemeanor. Any misdemeanor, the penalty for which does
not exceed imprisonment for a period of six months or a fine of not
more than $500, or both, is a petty offense. The statute further
provides, however, that whoever attempts to commit murder or
manslaughter, shall be fined not more than $1,000 or imprisoned
not more than three years or both, 18 U.S.C. 1113. Thus, attempted
murder is a felony since the statute provides for a possible term of
imprisonment exceeding the six months limitation provided for
conviction of a misdemeanor.
We also reject counsel's contention that the waiver of inadmissibility as a nonimmigrant under section 212(dX3)(A) of the Act
affects his inadmissibility under section 212(a)(9) for purposes of
entry as an immigrant. A waiver under section 212(d)(3XA) is, by
the specific terms of that provision, applicable only to admission as
a nonimmigrant.
Counsel also challenges on appeal the denial of voluntary departure. That privilege was denied by the special inquiry officer on
both the finding of ineligibility and in the exercise of discretion.
We hold that the special inquiry officer erred in concluding that
the statute precludes a finding of good moral character, a prerequisite to voluntary departure eligibility. The special inquiry officer
found as fact that the Lebanese crime had been committed within
the statutory five-year period. This was erroneous; the offense
occurred in 1964. In our view, that offense does riot fall within any
of the provisions of the act which preclude a finding of good moral
character as a matter of law.
As we pointed out in Matter of Gantus-Bobadilla, 13 L & N. Dec.
777 (BIA, 1971), prior to the enactment of the Immigration and
Nationality Act of 1952, there was no statutory definition of, or
limitation on a finding of, good moral character. Applying the
standards then permitted, the courts reached different conclusions
with respect to the permissibility of a finding of good moral
character in the case of an alien who had been convicted of
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Interim Decision #2142
murder, Petition of Sperduti, 81 F. Supp. 833 (M.D. Pa., 1949); In re
Balestrieri,
59 F. Supp. 181 (N.D. Cal., 1945); In re Caroni,
13 F.2d
954 (N.D. Cal., 1926); In re Ross,
188 Fed. 685 (M.D. Pa., 1911).
Section 101(f) of the 1952 Act set up a group of eight categories
of aliens who were precluded from showing good moral character
during the required statutory period. In most of the categories, the
proscribed conduct had to take plane during the statutory period
to preclude a finding of good moral character as a matter of law.
The eighth category, however, precluded such a finding in the case
of "one who at any time had been convicted of the crime of
murder." (Emphasis added.) Had the respondent been convicted of
murder, he would .clearly be barred by this provision. However,
respondent's offense was, at most, attempted murder, which falls
within none of the eight categories specified by Congress. We
cannot therefore conclude that this offense, committed outside the
statutory five-year period for which good moral character is
required by section 244(e) of the Act, bars eligibility for voluntary
departure as a matter of law.
Neither is such a conclusion required by the concluding sentence
of section 101(f): "The fact that any person is not within any of the
foregoing classes shall not preclude a finding that for other reasons
such person is or was not of good moral character." (Emphasis
added.) Since Congress has not listed attempted murder as an
offense which precludes a finding of good moral character as a
matter of law no matter when committed, we may not indirectly
add it to the eight enumerated categories by the simple device of
lumping it in with the "for other reasons" category. The latter was
designed to point out that, even if a person did not come within
any of the eight categories barred as a matter of law, he could for
some other reason be found to be lacking in good moral character
as a matter of fact. In that event, of course, the pertinent
standards would be those generally applied.
There is nothing in the record to indicate that, since his 1964
offense, respondent has behaved in a manner incompatible with
the accepted standards of the community. He has been regularly employed since his arrival in the United States two and onehalf years ago and has contributed very generously to the support
of his three children in Lebanon. The respondent apparently has
had no difficulty with the law since coming to this country. On this
record, denial of this minimal form of relief as a matter of
discretion does not seem to us to be warranted. We shall therefore
sustain the appeal insofar as it concerns the denial of voluntary
departure and shall grant that privilege within such period and
under such conditions as may be fixed by the District Director.
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ORDER: The appeal is dismissed so far as concerns denial of
the application for adjustment of status under section 245.
It is further ordered that the outstanding order of deportation be
withdrawn and the alien be permitted to depart from the United
States voluntarily to the country of his choice without expense to
the Government within such period of time as the District Director
directs and upon his failure to depart in accordance with the
foregoing, the respondent shall be deported to Lebanon on the
charge contained in the order to show cause.
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