Interim Decision #2735
MATTER OF KIM
In Deportation Proceedings
A-19915681
Decided by Board September 27, 1979
(1) In the Ninth Circuit, to be eligible for relief under section 212(c) of the Immigration
and Nationality Act, 8 U.S.C. 1182(c), the alien must establish that he has maintained
a "lawful unrelinquished domicile" in the United States for 7 consecutive years after
admission for permanent residence. Castillo-Felix v. INS, 601 F.2d 459 (9 Cir. 1979).
(2) A conviction for the crime of robbery in violation of section 211 of the California
Penal Code is a crime involving moral turpitude. Mat for of a —k— , 2 I&14 Dee_ 734
(BIA 1946; A.G. 1947).
CHARGE:
Order: Let of 1952--Sec 241(a)(4) U.S.C. 1251(a)(4)l—Convicted of a crime involving moral turpitude
ON BEHALF OF RESPONDENT: Hiram W. Kwan, Esquire
840 N. Broadway, Suite 200
Los Angeles, California 90012
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
This is an appeal from an immigration judge's decision dated January 30, 1979, in which the respondent was found deportable under
section 241(a)(4) of the Immigration and Nationality Act, S U.S.C.
1251(a)(4), denied acceptance of an application for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. 1182(c), and
denied the privilege of voluntary departnre_ The appeal will be
dismissed.
The respondent is a 24-year-old male alien, a native and citizen of
Korea who last entered the United States on May 28, 1968, as a
nonimmigrant student authorized to stay until October 17, 1969. On
July 2, 1973, his status was adjusted to that of a permanent resident.
On December 31, 1973, the respondent pled guilty and was convicted of
the crimes of rape and robbery which were committed on April 22,
1973. He served 4 years and 8 months in the state prison for these
crimes.
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On April 26, 1978, a hearing was held based on an Order to Show
Cause charging the respondent with deportability under section
241(a)(4) of the Act in that he had been convicted of a crime involving
moral turpitude committed within 5 years after entry and sentenced to
confinement in prison for a year or more, to wit, robbery, a violation of
section 211 of the California Penal Code.
The respondent denied at the hearing that he had been convicted of a
crime involving moral turpitude and that he had been sentenced to
confinement in a state prison for a year or more. The respondent
further denied deportability.
Based on the record, the immigration judge found that the respondent was convicted of robbery committed on April 22, 1973, in violation
of section 211 of the California Penal Code.' Under section 213 of the
California Penal Code, robbery is punishable by imprisonment for 5
years. The immigration judge also found that the crime of robbery is a
crime involving moral turpitude. US. ex rel. Cerami v. Ella, 78 F.2d 698
(2 Cir. 1935); Matter of G—R—,
2 I&N Dec. 733 (BIA 1946; A.G. 1947).
Based on the above, the immigration judge found the respondent
deportable under section 241(a)(4) of the Act, as one who had been
convicted of a crime involving moral turpitude committed within 5
years of entry and sentenced to confinement in prison for a year or
more.
The immigration judge further found that the respondent was not
prima facie eligible for a waiver of inadmissibility under section 212(c)
of the Act, citing Matter of Ammo,
16 I&N Dec. 293 (BIA 1977), and
refused to admit the application. The immigration judge also found
that the respondent was not eligible for voluntary departure since his
conviction of a crime involving moral turpitude precluded a finding of
good moral character within the meaning of section 101(f)(3) of the
Act, 8 U.S.C. 1101(f)(3).
On appeal, the respondent, through counsel, contends that the immigration judge denied him due process of law by failing to accept the
application for advance permission to return to inirelinquished
domicile, citing Loh v. INS,
548 F.2d 37 (2 Cir. 1977).
We agree with the immigration judge's finding that the respondent
is deportable under section 241(a)(4) of the Act for having been convicted of a crime involving moral turpitude committed within 5 years
of entry and sentenced to confinement in prison for a year or more.
We also agree with the immigration judge's finding that the respondent did not establish that he was prima fade eligible for relief
under section 212(c) of the Act. To be eligible for section 212(c) relief.
the respondent must establish that he has maintained a "lawful unre-
' A copy of the judgment of conviction was admitted into evidence as Exhibit 3.
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Interim Decision #2735
linquished domicile" in the United States for 7 consecutive years.
Castillo-Felix v. INS, 601 F.2d 459 (9 Cir. 1979). The respondent in this
case did not have his status adjusted to that of a permanent resident
until July 2, 1973. The 7 years necessary to be eligible for this relief
have not yet elapsed to date.
The respondent's argument that the Lok decision is applicable in
this case is without merit. The Ninth Circuit in Castillo-Felix v. INS,
supra, has clearly rejected the rationale of Lok and has held that the
respondent must accumulate 7 years of lawful unrelinquished domicile
after his admission for permanent residence to be eligible for relief
under section 212(c) of the Act. Since the present case arises out of the
Ninth Circuit, the court's decision in Castillo-Felix v. INS, supra, is
controlling.
We further agree with the determination of the immigration judge
that the respondent cannot be considered to be a person of good moral
character because the crime of which he was convicted is one involving
moral turpitude. See section 101(f)(3) of the Act; Matter of G—R--,
supra. Accordingly, we conclude that the respondent is deportable as
charged, prima facie ineligible for relief under section 212(c) of the
Act, mid is ineligible for voluntary departure. Accordingly, the appeal
will be dismissed.
ORDERS The appeal is dismissed.
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