Interim Decision #2564
MATTER OF GONZALEZ
In Deportation Proceedings
A-20361805
Decided by Board March 11, 1977
(1) Respondent was convicted of a violation of 18 U.S.C. 912 and 2 for impersonating an
immigration officer and as such, demanding and obtaining money. This was a crime
involving moral turpitude. In deportation proceedings brought under section 241(a)(2)
of the Immigration and Nationality Act, the immigration judge denied voluntary departure on the ground that respondent failed to show the requisite good moral character
required by section 101(f)(3) of the Act notwithstanding that respondent had received a
judicial recommendation against deportation under section 241(b) of the Act.
(2) The decision of the U.S. Court of Appeals for the Third Circuit in Giarnbanco v. INS,
531 F.2d 141 (1976) holds that a conviction for which a judicial recommendation against
deportation under section 241(b) of the Act has been obtained may not be considered in
an appliention for discretionary relief. That decision is controlling in this case since it
arose in the Third Circuit (Newark). Therefore, the record will be remanded to the
immigration judge in order that he may make a new determination respecting the
application for voluntary departure without considering respondent's conviction.
(3) Matter of Mangabat,
14 I. & N. Dec. 75 (BIA 1972), affirmed Mangabat v. INS,
477
F.2d 108; cert. denied
414 U.S. 841 (1973), distinguished.
CHARGE:
Older; Act of 1952—Section 241(a)(2) 19 U.S.C. 1251(a)(2)]—Nonimmigrant visitor
—remainedlonger
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
James J. Orlow, Esquire George Indelicato
Wasserman, Orlow, Kaye, & Rubin Appellate Trial Attorney
636 Public Ledger Building
6th & Chestnut Streets
Philadelphia, Pennsylvania'19 106
Allen E. Kaye, Esquire
233 Broadway
New York, New York 10007
Milhallan, Chairman; Wilson, Maniatis, and Appleman, Board Members
This is an appeal from the August 20, 1975, decision of an immigration
judge in which the respondent was found deportable under section
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Interim Decision #2564
241(a)(2), his application for voluntary departure was denied, and his
deportation to Colombia was ordered. The respondent has appealed
from that decision. The record will be remanded. .
The respondent, a native and citizen of Colombia, entered the United
States on or about June 13, 1972, as a nonimmigrant visitor. He remained beyond' the authorized period of his admission, and these proceedings were instituted against him. The respondent has conceded his
deportability. The only issue on appeal involves the respondent's application for voluntary departure.
In 1974 the respondent was convicted in the United States District
Court, District of New Jersey, on Count 1 of an indictment which states
that the respondent ". . did knowingly, wilfully and unlawfully combine, conspire, confederate . . . to falsely pretend and assume to represent to others that Jaime Jaramillo was an officer and employee of the
United States acting under the authority thereof, that is, an officer and
employee of the Immigration and Naturalization Service, and falsely act
as such, and in such pretended character demand and obtain money, in
violation of Title 18, United States Code, Sections 912 and 2." The crime
of which the respondent was convicted is a crime involving moral turpitude. See Mercer v. Lexce,
96 F.2d 122 (10 Cir. 1938), cert. denied
305
U.S. 611 (1938); Matter of B — ,
6 I. & N. Dec. 702 (BIA 1955).
The respondent, however, received a judicial recommendation
against deportation pursuant to section 241(b) of the Act. The immigration judge concluded, however, that evidence of this conviction statutorily precluded the respondent from establishing good moral character
under section 101(f)(3) and thereby acted as a bar to a grant of voluntary
departure under section 244 of the Act.
Subsequent to the immigration judge's decision, the United States
Court of Appeals for the Third Circuit rendered its decision in Gianzbanco v. INS,
531 F.2d 141 (3 Cir. 1976). The court held in Giambanco
that a conviction for which a judicial recommendation against deportation under section 41(1:1.) of the At has been obtained may not be
considered in an application for discretionary relief.'
In its brief on appeal the Service requests that we decline to apply the
Third Circuit's ruling in Giambanco to this case. In support of its
request, it relies on our decision in Matter of Mangabat, 14 1. & N. Dec.
75 (MA 1972), affirmed Illangabat v. INS,
477 F.2d 108; cert. denied,
414 U.S. 841 (1973).
In Matter of Mangabat, we declined to apply a decision of the United
States Court of Appeals for the Ninth Circuit to a case arising in the
' The application involved in Giambanco was made under section 245 of the Act; the
respondent in the present case has made an applic4Lion under section 244(e). However,
the court's opinion in Giambanco clearly covers all discretionary applications under the
Act.
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Interim Decision #2564
circuit. However, the court in its decision had rejected the Board's long
standing construction of a statute, a construction which had been endorsed in courts outside the Ninth Circuit and which had been approved
by the Attorney General. The instant case does not contain the persuasive factors present in Matter of Mangabat. Despite the fact that the
Service apparently has not acquiesced in the court's ruling in Giambanco, it is our opinion that we are bound by the court's ruling in those
cases arising within the Third Circuit. See Matter of Amado and Mon-
, 13 I. & N. Dec. 179 (BIA 1969).
With due respect for the court, however, we state our disagreement
with its holding in Giarnbanco. Section 241(b) expressly prevents an
alien's deportation on the basis of a conviction for which a judicial
recommendation against deportation was made despite the provisions of
section 241(a)(4). The Act nowhere states that the criminal activity and
the conviction which resulted therefrom cannot be considered in connection with an application for discretionary relief. However, in recognition
of the policy expressed by Congress in section 241(b), we are of the
opinion that an alien who has a conviction for which a judicial recommendation against deportation has been made should not be precluded
by section 101(f)(3) from establishing good moral character. Since the
existence of the conviction does not bar further inquiry, all evidence of
record, including that conviction and the nature of the criminal activity,
could be considered in determining whether the respondent is a person
of good moral character and in exercising discretion under section 244(e)
of the Act. Contrary to the view expressed by the court, the interpretation suggested here is the same applied in those cases in which an
expungement of the conviction has been obtained. See In re Paoli,
49 F.
Supp. 128 (N.D. Cal. 1943); Matter of H ,
6 I. & N. Dec. 619 (BIA
—
1E156).
The present case illustrates the inadvisability of establishing rigid
roles which deny to the immigration judges the flexibility necessary to
carry out their duty to analyze sensitively the competing factors in each
particular case. See Matter of Blas, Interim Decision 2485 (BIA 1974;
Attorney General 1976). The respondent's conviction of 1974 resulted
from his involvement in a particularly despicable criminal scheme: he
conspired to pose as an Immigration and Naturalization Service employee and to fraudulently obtain money from other aliens on the basis
of false promises to procure lawful permanent resident status for them.
Had no criminal action been instituted against the respondent, the fact
of his involvement in the criminal activity could have been brought out
and considered in connection with an application for discretionary relief.
I'Erie court's ruling in Giantbanco places him in a position superior to the
person who has not been convicted of his crime. Although the fact of his
emviction should not preclude him from establishing statutory eligibil-
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Interim Decision #2564
ity for the relief, we are of the opinion that the respondent is neither a
person of good moral character nor a person who merits a favorable
exercise of discretion.
Nevertheless, pursuant to the court's decision in Giambanco , we shall
remand the record to the immigration judge in order that he may make a
new determination on the application for voluntary departure. The
immigration judge shall not consider the respondent's conviction in
reaching a new decision on the application.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the above opinion.
137
