Interim Decision #2332
MATTER OF SCARPULLA ,
In Deportation Proceedings
.A-19496038
Decided by Board November 21, 1974
Respondent's application for adjustment of status pursuant to section 245 of the Immigration
and Nationality Act is denied, because he is excludable under section 212(a)(9) of the Act
as an alien who prior to entry had committed a crime involving moral turpitude. He was
convicted abroad for the theft of goods valued at $35.00 and was sentenced to one year and
nine months incarceration. He served 20 months. Where the punishment actually imposed
exceeded one year, under 18 U.S.C. 1(3) the crime cannot be considered a petty offense
within the exception provided under section 212(a)(9) of the Act.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitor,
remained longer than permitted.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Jonanthan E. Avirom, Esquire Paul 0. Vincent, Esquire
Billet, Billet & Avirom Appellate Trial Attorney
225 Broadway
New Yorlc, New York 10007
This is an appeal from a decision of an immigration judge dated
January 2, 1974, finding.the respondent deportable on the above-stated
charge, denying his application for adjustment of status under section
245 of the Immigration' and Nationality Act, but granting him voluntary
departure. Exception has been taken solely to the denial of the respondent's application for adjustment of status. The appeal will be dismissed.
The respondent is an unmarried male alien, a native and citizen of
Italy. He entered the United States on December 24, 1970 as a nonimmigrant visitor for pleasure authorized to remain in that status until
October 24, 1971. He remained here beyond that date without authority. He admitted the truth of all the factual allegations in the order to
show cause and conceded deportability. Voluntary departure was requested and the respondent was afforded this discretionary relief from
deportation.
The immigration judge denied the respondent's application for adjustment of status pursuant to section 245 of the Act on the ground that
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Interim Decision #2332
the respondent was excludable under section 212(a)(9) of the Act as an
alien who prior to entry had committed a crime involving moral turpitude which was not classifiable as a petty offense. We are in agreement.
Adjustment of status under section 245 is available to an alien (1) who
is eligible for an immigrant visa, (2) who is admissible to the United
States for permanent residence, and (3) to whom an immigrant visa is
immediately available at the time his application is approved. In the
present ease the first and third requirements evidently have been
satisfied, since the respondent is the beneficiary of an approved visa
petition and, according to the latest State Depaxtment Bulletin, fifth
preference visa numbers are currently available to applicants born in
Italy. The only remaining question is whether he is admissible to the
United States as a permanent resident. An alien applying for adjustment of status is assimilated to the position of an alien seeking to enter
the United States for permanent residence, Campos v. INS, 402 F.2d
758, 760 (C.A. 9, 1968).
In his appeal, the respondent asserts that the crime of which he was
convicted falls within the exception for petty offenses contained in
section 212(a)(9)_ In support of this premise, it is the respondent's
contention that (1) the crime of which he was convicted was a mis,-
demeanor; and (2) the criteria to be used to determine whether the
crime is a petty offense should not be what punishment was imposed by
the foreign jurisdiction but the punishment that would be imposed
according to United States standards.
Section 212(a) of the Act provides, in pertinent part:
"Except as otherwise provided in this Act, the following classes of aliens shall be
ineligible to receive visas and shall be excluded from admission into the United States:
(9) Alien; who have been convicted of a crime involving moral turpitude (other than a
purely political offense). . . . Any alien who would be excludable because of the conviction of a misdemeanor class$able as a petty offense under the provisions of section 1(3)
of title 18, United States Code, by reason of the punishment actually imposed, or who
would be excludable as one who admits the commission of an offense that is classifiable
as a misdemeanor under the provisions of section 1(2) of title 18, United States Code, by
reason of the punishment which might have been imposed upon him, may be granted a
visa and admitted to the United States if otherwise admissible: Provided, That the alien
has committed only one such offense . ." (Emphasis supplied.)
The record shows that the respondent was convicted on December 6,
1948 in Palermo, Italy for theft of 300 kilos of olives valued at $35 and
was sentenced to one year and nine months pursuant to Article 23,
Chapter 26 of the Italian Penal Code. The respondent served 20 months
of this sentence. To determine whether or not a crime committed in a
foreign country involves moral turpitude, American standards must be
applied, U.S. ex rel. McKenzie v. Savoretti, 200 F.2d 546 (C.A. 5, 1952;
Matter of Grazley,
14 I. & N. Dec. 330 (BIA 1973). It is well settled that
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Interim Decision #2332
theft or larceny, whether grand or petty, has always been held to
involve moral turpitude, Brett v. INS, 386 F.2d 439 (C.A. 2, 1967), cert.
denied
392 U.S. 935 (1968); Morasch v. INS,
363 F.2d 30 (C.A. 9, 1966);
Khalaf v. INS,
361 F.2d 208 (C.A. 7, 1966); U.S. ex rel. Meyer v. Day,
54 F.2d 336 (C.A. 2, 1931). We conclude that the respondent's conviction
for theft is a conviction for a crime involving moral turpitude.
The classification of a crime committed in a foreign country as a
misdemeanor or a felony is likewise made according to United States
standards; i.e., the offense is examined in the light of the maximum
punishment imposable for a equivalent crime described in Title 18 of the
United States Code or, if an equivalent offense is not found there, Title
22 of the District of Columbia Code, Giammario v. Harney,
311 F.2d
285, 286 (C.A. 3, 1962); Matter of Adamo,
10 I. & N. Dec. 593, 595 (BIA
1964); Matter of T—, 6 I. & N. Dee. 508, 517 (A.G. 1955). A misdemeanor is any offense other than one punishable by death or imprisonment for a term exceeding one year, 18 U.S.C. 1(1), (2).
The immigration judge found an equivalent crime in the District of
Columbia Code, section 22-2202 which reads as follows: "whoever shall
feloniously take and carry away any property of value of less than $100
shall be fined not more than $200 or be imprisoned for not more than one
year, or both." From the foregoing, we conclude that the crime in
question was a misdemeanor. However, in this case the sentence actually imposed upon the respondent by the Italian court and the sentence
actually served by him exceeded six months. Hence, the punishment
actually imposed exceeds the test set out in 18 U.S.C. 1(3) and the
respondent's crime may not be considered a petty offense within the
exception outlined in section 212(a)(9) of the Act, Matter of M—, 8 L &
N. Dec. 453 (BIA 1959). Consequently, the immigration judge properly
found the respondent excludable pursuant to the provisions of section
212(a)(9) and statutorily ineligible for adjustment of status under section
245. Accordingly, the following order will be entered.
ORDER: The appeal is dismissed. •
Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily
within 60 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondent shall be deported as provided in the
immigration judge's order. ,
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