Interim Decision #2595
MATTER OF IMBER
In Deportation Proceedings
A-20837137
A-20160802
Decided by Board June 28, 1977
(1) Respondents, who are husband and wife, applied for adjustment of status under
section 245 of the Immigration and Nationality Act based on husband's classification as a
fourth preference immigrant under section 203(a)(4) of the Act. The application of the
wife depends on that of her husband. Both applications were denied by the District
Director.
(2) Male respondent was found guilty on a plea of violation of sections 159 and 168 of the
Israeli Criminal Act of 1936, for engaging in sexual misconduct. with three 16-
year-old girls between 1972 and 1973. Violations of this statute are crimes involving
moral turpitude and render the male respondent excludable under section 212(a)(9) of
the Act and therefore ineligible for section 245 adjustment.
(3) Since respondents are the parents of a United States citizen child, the record will be
remanded for determination of whether respondent is eligible for a waiver of his ground
of inadmissibility pursuant to section 212(h) of the Act.
CHARGE:
Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimrrigrant visitor—
remained longer
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
George Gershenfeld, Esquire George Indelicato
715 Widener Building Appellate Trial Attorney
Philadelphia, Pennsylvania 19107
BY: Milhollan, Chairman; Wilson, Appleman, and Maguire, Board Members
This is an appeal from the September 9, 1976, decision of an immigration judge finding the respondents deportable under section 241(a)(2) of
the Immigration and Nationality Act and denying them the relief of
adjustment of status. He, further, denied the male respondent voluntary departure, ordering his deportation to England and granted the
female respondent voluntary departure. Both respondents have appealed. The appeal will be sustained and the record remanded.
The male respondent is a 31-year-old native of the USSR and citizen of
Israel who entered the United States as a nonimmigrant visitor on
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October 1, 1974. The female respondent is a 27-year-old native of France
and a citizen of the United Kingdom who entered the United States, also
as a nonimmigrant visitor, on October 13, 1974. The respondents have
admitted the truth of the allegations contained in the Orders to Show
Cause and conceded deportability.
The male respondent is the beneficiary of an approved visa petition
filed by his United States citizen father and approved on March 19, 1975.
Because the male respondent married the female respondent on May 2,
1975, he was no longer entitled to a preference under section 201(b) of
the Act. However, under 8 C.F.R. 204.5, this preference was automatically converted to a preference under section 203(a)(4), which is
currently available. The female respondent's application for adjustment
is dependent upon her husband's preference.
The respondents' applications for adjustment of status were denied
by the District Director on April 21, 1976, and they were granted
voluntary departure without the issuance of an Order to Show Cause
until May 21, 1976. They have not departed and they renewed their
applications for adjustment at the deportation hearing.
In order to be eligible for adjustment of status an alien must be
eligible to receive an immigrant visa and not otherwise be excludable
from the United States. Both the District Director and the immigration
judge found that the male respondent was excludable under section
212(09) of the Act as one who has been convicted of a crime involving
moral turpitude. Both respondents, therefore, were denied adjustment.
The male respondent was convicted in Israel of violation of sections
159 and 168 of the Criminal Act of 1936. 1 He was accused of sexual
misconduct with three 16-year-old girls between December, 1972 and
January 1973. He was found guilty upon a plea on April 29, 1974. The
question is whether this conviction was for a crime involving moral
turpitude.
We are unable to find a decision of this Board concerning a conviction
under this statute or for this exact offense. The Board holds, generally,
that when a statute is "divisible," i.e., one which may or may not
describe crimes involving moral turpitude, we must look to the record to
discover the exact nature of the offense for which the respondent was
convicted. See Matter of Garcia, 11 L & N. Dee. 521 (BIA 1966). An
examination of the indictment is often necessary to determine moral
turpitude in cases involving broad statutes.
Section 159 of the Israeli Criminal Act of 1936 reads:
He who engages in sexual misconduct with a person of less than 16 years of age shall
be convicted of a felony and subject to a penalty for a period of up to three years.
Section 168 of the same act reads:
He who makes immoral advances to a person of less than 16 years of age, or to any
women, is subject to a sentence of up to three months in jail.
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In Matter of W—, 5 I. & N. Dec. 239 (BIA 1953), we decided that a
conviction for contributing to the delinquency of a minor under section
33 of the Juvenile Delinquents Act of 1929, Statutes of Canada, 1929, C.
46, 19-20, a divisible statute, constituted a crime involving moral turpitude. See also Matter of F—,
2 I. & N. Dec. 6143 (BIA 1946). In Matter
of S—,
5 I. & N. Dec. 686 (BIA 1954), we considered an indecent assault
against a female under section 292(a) of the Canadian Criminal Code to
be a crime involving moral turpitude. See also Matter of Z—,
7 I. & N.
Dec. 253 (BIA 1956). Conviction of the offense of sexual intercours e
with a female under 16 years of age in violation of section 944.10(2) of
Wisconsin Statutes has also been held to involve moral turpitude. Matter of Dingena, 11 T. & N. Dec. 723 (BIA 1965). Moreover, statutory
rape has repeatedly been held to involve moral turpitude, despite the
strict liability nature of the crime. Matter of R—,
3 I. & N. Dec. 562
(BIA 1949); Matter of P—,
5 I. & N. Dec. 392 (BIA 1953); Matter of
M—,
9 I. & N. Dec. 452 (BIA 1961); Bendel v. Nagle,
17 F.2d 719 (9 Cir.
1927); Ng Siiti Wing v. U.S.,
46 F.2d 755 (7 Cir. 1931); Castle v. INS,
541
F.2d 1064 (4 Cir. 1976).
In addition, convictions for violations of the following statutes have
also been held to involve moral turpitude: (1) Article 203 of the Criminal
Code of Poland defining commission of immoral acts with persons less
than 15 years of age; (2) impairing the morals of a minor under section
248 of the New York Penal Law; (3) Contributing to the delinquency of a
child under section 37.089 of the Illinois Criminal Code; (4) cases under
section 1203.3 of the Penal Code of California involving convictions for
"Lase" and "depraved" offenses and "lascivious conduct." See Matter of
Garcia, supra, for a more complete listing. More significantly, we have
held that a conviction under Michigan law for the crime of taking
indecent liberties with a female under sixteen is a crime involving moral
turpitude. Matter of G—, 6 I. & N. Dec. 461 (B IA 1954).
Considering the precedent decisions, the nature of the statute, and
the acts charged in the charging documents and in the decision of the
Israeli CuurL, 2 we find that the offenses for which the respondent was
convicted in 1974, were crimes involving moral turpitude. Thus, the
respondent was correctly found excludable under section 212(a)(9) of the
A et_
Nevertheless, due to the fact that a United States citizen child was
2 The facts described in the charging document indicate that the respondent approached
twee girls and proposed that they disrobe and be photographed while posing nude and
\viile engaging in sexual intercourse and sexual misconduct. A few days later at the same
lo cation the respondent allegedly engaged in sexual misconduct with the body of each of
tinese girls, who were under 16 years of age at the time. At the very least, these acts could
be described as "taking indecent liberties with a female under sixteen.- see Matter of G — ,
szetpra.
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Interim Decision #2595
born to the respondents on January 24, 1977, the male respondent may
now be eligible for a waiver of his ground of inadmissibility under
section 212(h) of the Act.
In view of this recent development, we find it necessary to remand
the record to the immigration judge for a determination as to whether
the respondent merits the grant of a section 212(h) waiver in the exercise of discretion.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with the foregoing opinion and the entry
of a new decision.
259
