PIROGLU

Interim Decision #2838




                               MATTER OF PIROGLU

                            In Deportation Proceedings

                                     A-20599693

                    Decided by Board November 26, 1980
(1) Section 101(f)(7) of the Immigration and Nationality Act, 8 U.S.C. 1101(0(7),
  precludes a person from establishing good moral character if he was confined, as a
  result of conviction, to a penal institution for an aggregate period of 180 days or more,
  regardless of whether the offense for which.he was confined was committed within the
  period for which good moral character must be shown.
(2) The respondent, whose prison term resulted from a violation of probation rather
  than from an original sentence to incarceration, is nevertheless barred from establishing good moral character on the basis of his confinement and is, therefore,
  statutorily ineligible for voluntary departure.
CHADOR'
  Order Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant student—
                       remained longer than authorized
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
  David Carliner, Esquire                                Gerald Hurwitz
  931 Investment Building                                Appellate Trial Attorney
  1511 K Street, N.W.
  Washington, D.C. 20005                                 Ernest H. Hupp
                                                        Trial Attorney
BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members


  In a decision dated April 3, 1978, the immigration judge found the
respondent deportable under section 241(a)(2) of the Immigration and
Nationality Act, 8 1251(a)(2), as a nonimmigrant who remained
longer than permitted, and denied his application for voluntary departure. The respondent has appealed from that decision. The appeal will
be dismissed.
  The respondent is a 31-year-old native and citizen of Turkey who
entered the United States in 1973 as a nonimmigrant visitor for
pleasure.' The record reflects that he was married to a United States
  ' The respondent's Arrival-Departure Record (Form 1-94) states that the respondent
entered the United States on March 19, 1973, whereas the Order to Show Cause alleges

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citizen from whom he is now divorced. It further indicates that the
respondent is the father of a United States citizen child born to a
woman other than his wife while he was married. At oral argument,
counsel for the respondent stated that the respondent has now married
the mother of his child.
   Included in the record is a record of conviction in the General
District Court of Arlington County, Virginia, which indicates that the
respondent was found guilty of discharging a firearm in public and was
fined $25 plus costs on September 2, 1975. The record also contains a
Judgment and Probation/Commitment Order from the United States
District Court for the District of Maryland, dated June 13, 1977, which
orders that a fine previously imposed on the respondent for a second
conviction be suspended, that probation be terminated, and that he
serve 9 months in prison.
   At deportation proceedings, the respondent conceded deportability a
and requested voluntary departure. The immigration judge denied the
respondent's application for relief from deportation on the ground
that the respondent was statutorily ineligible as being precluded under
section 101(f)(2) of the Act, 8 U.S.C. 1101(f)(2), from establishing good
moral character because of his adultery. He further stated that he
would deny voluntary departure as a matter of discretion since the
respondent admitted that he had been convicted twice and that he had
insufficient funds to return to Turkey.
  At oral argument, counsel for the respondent argued that the immigration judge erred in finding that the respondent was statutorily
ineligible far voluntary departure because he was not, in fact, guilty of
committing adultery. It was further asserted that the immigration
judge's ruling on discretionary grounds was also in error.
  After responding to these arguments, the Appellate Trial Attorney
noted that the respondent had been confined in a penal institution for
more than 180 days as a result of conviction. He, therefore, argued that
the respondent was precluded from establishing good moral character
by section 101(f)(7) of the Act. On rebuttal, counsel for the respondent
contended that since the re spondent was only required to serve time in
prison because of his inability to pay a fine, it would be unfair to
penalize him for his poverty.
  Our review of the record confirms that the respondent did, in fact,
admit to having served 9 months in prison. He stated that he was
originally sentenced to a fine and a period of probation, but was unable
that his entry was made on April 19, 1973.
   Although deportability was conceded at the hearing, the respondent challenged the
immigration judge's finding on his Notice. of Appeal (Form I-290A). However, at oral
argument, counsel for the respondent stated that the question of deportability was not
contested on appeal.

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to pay the fine and, being afraid to tell the court, violated his probation.
  Section 101(f)(7) of the Act provides as follows:
  (f) For the purposes of this Act—No person shall be regarded as, or found to be, a
      person of good moral character who, during the period for which good moral
      character is required to be established, is. or was—
      (7) one who during such period has been confined, as a result of conviction, to a
          penal institution for an aggregate period of 180 days or more, regardless of
          whether the offense, or offenses, for which he has been confined were committed within or without such, period.
   The language of the statute is clear that confinement for the
prescribed period resulting from a conviction bars a finding of good
moral character. It makes no exception for a prison term resulting
from violation of probation rather than from an original sentence to
incarceration' Absent a showing that Congress intended to make such
a distinction, we are unwilling to so limit the statutory mandate that
persons within its scope should be barred from establishing good
moral character. Moreover, we have previously noted that the rationale behind the statute was that a person who has served a jail term of a
specified length is not worthy of special exemptions from the penalties
of the immigration laws. See Matter of B—, 7 I&N Dee. 405 (BIA 1957).
We, therefore, conclude that the respondent is precluded by section
101(f)(7) from establishing good moral character, which renders him
ineligible for voluntary departure.
   Inasmuch as the respondent is statutorily ineligible for voluntary
departure under section 101(f)(7) of the Act, we need not reach the
issue of his ineligibility based on his alleged adultery. Accordingly, the
appeal will be dismissed.
   ORDER. The appeal is dismissed.




    In Matter of Gantus-Bobadilla,13 MN Dec. 777 (BIA 1971), we found that a sentence
to probation without incarceration did not bar a finding of good moral character under
section 101(f)(7) of the Act. That case is distinguishable from the instant case in that the
respondent there was never actually confined as required by the statute.

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