Interim Decision #2123
MATTER OF FERNANDEZ
In Exclusion Proceedings
A-13311155
Decided by Board January 17, 1972
(1) Conviction of the offense of transporting forged securities in interstate
commerce in violation of 18 U.S.C. 2314 is conviction of a crime involving moral
turpitude.
(2) A three-year sentence to imprisonment on each of two counts of an offense,
with the sentences to run concurrently, does not constitute "aggregate
sentences to confinement actually imposed" of "five years or more" within the
meaning of section 212(a)(10) of the Immigration and Nationality Act.
(3) A special inquiry officer's refusal to entertain a section 212(h) application for
a waiver of excludability because the applicant was still in prison, was not
improper.
EXCLUDABLE: Act of 1952—Section 212(a)(9) [8 1182(aX9)l—Convicted of
crime involving moral turpitude.
Act of 1952—Section 212(aX10) [8 U.S.C. 1182(aXlO)]—Convicted of
two or more offeliscs for which the aggregate
sentences to confinement actually imposed were
five years or more.
ON BEHALF OF APPLICANT: Pro se
The applicant is a 35-year-old married male, a native and citizen
of Cuba. He was admitted for permanent residence in 1957. In 1962
he participated in the Bay of Pigs invasion. He married a United
States citizen in 1966. In 1969 he went to Mexico. The Mexican
authorities deported him to the United States on November 9,
1969. He was paroled into the United States at that time. In an
order dated May 4, 1971, the special inquiry officer found the
applicant excludable as charged. From that order the applicant
appeals. The appeal will be dismissed.
The file indicates that the applicant has the following criminal
record. On December 13, 1965 he was convicted in California for
issuing various checks with the intention to defraud, a violation of
section 476a, Penal Code of California, for which offense he received a suspended sentence to 90 days imprisonment. On June 5,
1968 he was convicted in California of the offense of operating a
motor vehicle without the owner's consent, a violation of section
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Interim Decision #2123
10851, Vehicle Code of California, for which he again received a
suspended sentence to 90 days imprisonment. On April 1, 1970 he
was convicted in the United States District Court for the Southern
District of Florida on two counts of transporting forged securities
in violation of 18 U.S.C. 2314. For this he was sentenced to three
years imprisonment on each count, with the sentences to run
concurrently.
We shall decide this appeal solely with reference to the federal
conviction referred to above. We agree with the special inquiry
officer that the offense of transporting forged and fraudulent
securities in interstate commerce is a crime involving moral
turpitude. As regards the applicant's first two convictions, we find
it unnecessary to make any holding with respect to whether they
involve moral turpitude. In any event, the record before us is
deficient in that it does not contain the text of the relevant
California statutes. The special inquiry officer's order not only
contains no discussion of this point, but it also contains no precise
finding of moral turpitude.
Inasmuch as we accept the special inquiry officer's finding that
the applicant has been convicted of two counts of an offense
involving moral turpitude, we also endorse the special inquiry
officer's holding that the applicant is excludable under section
212(a)(9) of the Act.
The special inquiry officer found that "Adding all these sentences...together you see that the applicant clearly has been
convicted of two or more crimes or offenses and has been sentenced to more than 5 years in jail...." The special inquiry officer
accordingly found him excludable under section 212(a)(10) of the
Act. With this we do not agree. In a previous decision, unfortunately unpublished, we have held that two concurrent three-year
sentences result in an aggregate sentence actually imposed, for
purposes of section 212(a)(10), of only three years, Matter of Rink,
T-367043 (unreported, BIA, September 24, 1954). Therefore, we
reverse the special inquiry officer's finding that excludability
under section 212(aX10) was established.
The special inquiry officer stated that the applicant's deportation into the United States by the Mexican authorities constituted
an "entry." We do not agree since it is well established that an
alien's parole into the United States does not constitute an "entry"
within the meaning of the Immigration and Nationality Act, Lung
May Ma v. Barber,
(1958); Matter ofDabiran, 13 I.&N.
Dec. 587(BIA, 1970).
The record indicates that the applicant has a United States
citizen spouse and a son born in Mexico. The special inquiry officer
noted that the applicant would normally be eligible for considera-
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Interim Decision #2123
tion for a waiver of excludability under section 212(h) of the Act.
However, the special inquiry officer refused to entertain an application for such relief because the applicant was still in prison. We
agree with this action of the special inquiry officer. This is without
prejudice to reopening and reconsideration in the event of a
renewed application submitted at such time as the applicant, by
his behavior over a reasonable period of time, is able to demonstrate that a waiver of his excludability is merited as a matter of
discretion and that his admission would not be contrary to the
national safety, security and welfare of the United States.
For the foregoing reasons, the special inquiry officer's order of
excludability is upheld, but only as relates to section 212(a)(9), and
the applicant's appeal will be dismissed. The following order will be
entered.
ORDER: The appeal is dismissed.
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