BALLESTER-GARCIA

Interim Decision #2841




                        MATTER OF BALLESTER-GARCIA.

                             In Exclusion Proceedings

                                        A-24452248

                     Decided by Board December 17, 1980
(1) Under section 243(h)(2)(C) of the Immigration and Nationality Act, 8 U.S.C.
   1253(h)(2)(C), as amended by the Refugee Act of 1980, it is not always necessary to
   determine whether an applicant for this relief has actually committed a serious,
   nonpolitical crime: it is enough, by the very terms of the statute, to find that there are
   "serious reasons for considering" that he has committed such a crime.
(2) Where a crime is not obviously heinous, such factors as the alien's description of the
  crime, the turpitudinous nature of the crime according to our precedents, the value of
  any property involved, the length of the sentence imposed and served, and the usual
  punishments imposed for comparable offenses in the United States, are all proper
  considerations in attempting to decide whether or not that crime may have been
  serious within the meaning of section 243(h)(2)(C).
(3) Where respondent's crime involved the late night entry into a building, and the theft
  of over 12,000 pesos, where the crime had been plotted several weeks in advance, and
  where the applicant was sentenced, in Cuba, to 15 years imprisonment, of which he
  had served 8 when released to come to the United States, there are serious reasons to
  believe the respondent's crime was a serious one, and he is thus ineligible for section
  243(h) relief.
EXCLUDABLE:
  Order: Act of 1952—See. 212(a)(9) [8 U.S.C. 1182(a)(9)J—Admitted to conviction of a
                         crime involving moral turpitude
                      Sec. 212(a)(20) [8 U.S.C. 1182(a)(20)1—Not in possession of a
                        valid immigrant visa
ON BEHALF OF APPLICANT:        Pro se
BY:   Millidlitn, Chairman; Maniatis, Appleman, and Maguire, Board Members


  In a decision dated August 5, 1980, an immigration judge found the
applicant excludable as charged, denied his application for asylum,
and ordered him excluded and deported. The applicant appealed. The
appeal will be dismissed.
  The applicant is a 82 year old native and citizen of Cuba. He was
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part of the recent exodus from Cuba, arriving in the United States at
Key West, Florida, on May 9, 1980. Shortly after his arrival in this
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country, the applicant executed a sworn statement and a request for
asylum. These documents reflect that the applicant admitted that he
had been convicted in Cuba in 1972 for what he called "robbery," in
that he, along with three other men, took 12,230 pesos from a cabaret.
The applicant was sentenced to 15 years imprisonment for this crime,
and was in prison up until the time he was put on a boat to come to this
country. Based on these facts, the applicant was charged with excludability under section 212(a)(9) of the Immigration and Nationality
Act, 8 U.S.C. 1182(a)(9), as an alien who had been convicted of a crime
involving moral turpitude, to wit, robbery, as well as under section
212(a)(20). On July 8, 1980, the Department of State informed the
Immigration and Naturalization Service that it believed the applicant
had committed a serious nonpolitical crime prior to his arrival in the
United States, and that he was therefore not eligible for asylum under
the United Nations Convention and Protocol. On July 15, 1980, the
District Director denied asylum based on the applicant's admission of
an arrest and sentence for the commission of a serious nonpolitical
crime.
   At an exclusion hearing held on August 5, 1980, at which the applicant elected to proceed without counsel, the applicant admitted that he
had taken money from the cabaret, and stated that he and his friends
had planned the crime 15 to 20 days in advance of committing it. Tr. at
21. Although the applicant referred to his crime as "robbery" in both
his sworn statement and his asylum application, and this is the crime
mentioned in the 1-122 "Notice to Applicant for Admission Detained
for Hearing Before Immigration Judge," the crime as described at the
hearing appears to have been larceny or burglary. The applicant stated
that he and his friends entered the cabaret after 1:00 a.m. in the
morning of May 21, 1972, that the door had been left open by one of the
criminals, who apparently worked at the cabaret, and that no other
persons were in the cabaret at that time. Tr. at 19. The applicant
testified that no one carried any weapon, as none was needed, and that
they simply entered the building and took the money, which they had
information was under some boxes under a table. Tr. at 19-20. The four
men involved in the crime were to have divided the money the next day,
but were apprehended before they were able to do so. The applicant
claimed that he committed the crime in order to pay a smuggler to
bring him to the United States. Tr. at 22. Following the applicant's
testimony, the immigration judge rendered his decision in which he
found the applicant excludable as charged, and ineligible for asylum
because of his commission of a serious nonpolitical crime. He found the
applicant's testimony with regard to his reasons for stealing the
money to be a "self-serving statement" and "unlikely and highly
incredible," and he found the applicant in general not to be a credible

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Interim Decision #2841
witness. Based on the respondent's admissions regarding the commission of his crime, we affirm the immigration judge's finding of
excludability.
  Section 243(h) of the Act, 8 U.S.C. 1243(h),1 regarding withholding of
deportation, provides that an alien may not obtain this relief, despite a
valid persecution claim, if it is determined that, inter alia, "there are
serious reasons for considering that the alien has committed a serious
nonpolitical crime outside the United States prior to the arrival of the
alien in the United States." Section 243(h)(2)(C). See also 8 C.F.R.
208.7(1)(1)(v); Matter of Rodriguez-Palma, Interim Decision 2815 (BIA
1980). In the present case, the applicant has freely admitted the details
of his conviction for the crime of stealing a considerable amount of
money, although he now claims that he committed the crime only to
enable him to escape the political situation in Cuba, and he states that
he would never have committed such a crime in this country. The issue
facing us, then, is whether, under these facts, it can be said that there
are serious reasons for considering that the applicant's crime was a
serious one.
    Finding the answer to this question is made much more difficult by
the poor state of the record. Unfortunately, inadequate records are, the
norm in the many cases we have recently seen dealing with the sudden
influx of aliens from Cuba who have admitted to criminal records in
that country. It is not surprising that there are no actual conviction
records relating to these aliens, but that fact makes it at times extremely difficult to apply the provisions of section 243(h)(2)(C). We
must- rely in these cases almost entirely on the alien's statements
regarding the nature of his offense. This raises additional problems
because often the alien's testimony by the time he appears at his
exclusion hearing is very different from the statements he made when
initially interviewed by Service officers. The immigration judge, and
later this Board, must therefore attempt to determine which version of
events is most truthful, a troublesome task at best. Then, too, the
terms used by these aliens to describe their crimes often appear to be
technically in accurate, especially in those many cases where robbery,
burglary, theft, and/or larceny are involved; those terms are bandied
about by the aliens (and sometimes by immigration officials as well)
with little or no regard for or knowledge of their real meaning. Again,
it is left to the immigration judge, and later to this Board, to decipher
exactly what crime was involved in a given case. Finally, we are not
  ' Technically, the applicant applied for asylum, and no mention was made at the
hearing of section 243(h) relief. However, the regulations provide that asylum requests
in deportation or exclusion proceedings "shall also be considered as requests for
withholding exclusion or deportation pursuant to section 243(h) of the Act." 8 C.F.R.
208.3(h) (effective June 1, 1980).

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provided with any Cuban law which could shed light on an alien's
crime, or on how the present Cuban government views given crimes,
i.e., whether the regime in general treats the same crimes in the same
way vis a vis sentencing, and whether the sentences meted out reflect
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the government's views on the seriousness of the crimes.'
   There is no scapegoat on whom to pin the blame for the sorry state of
these records. Circumstances beyond anyone's control are in the main
responsible. Our task is simply to sift through the records in an
attempt to ascertain, as far as possible, the accurate facts, and then to
determine whether, under those facts, the alien is eligible for
withholding of deportation and/or asylum. Under the statute, we need
not necessarily determine whether an alien has actually committed a
serious nonpolitical crime: it is enough to find that there are "serious
reasons for considering" that he has committed such a crime. In a case
such as the present one, where there is no doubt that a crime has been
committed, we look to the facts, as we have found them to be accurate,
to determine whether there are serious reasons to consider that the
crime committed was a "serious" one. Where a crime such as murder
or armed robbery is at issue, we are unlikely to have much trouble in
making this determination. Most of the cases, however, are not so easy.
Where the crime Is not obviously heinous, perhaps involving an offense
against property only, determining the seriousness of the crime
becomes a difficult task. In these situations, such factors as the alien's
description of the crime, the turpitudinous nature of the crime according to our precedents, the value of any property involved, the length of
sentence imposed and served, and the usual punishments imposed for
comparable offenses in the United States, are all proper considerations
in attempting to decide whether or not a crime may have been serious.
   In the present case, we have concluded that there are in fact sufficient facts to show that the applicant's crime may have been a serious
nonpolitical one within the meaning of section 243(h)(2)(C). Although
the applicant's crime does not appear to have been what is generally
considered robbery (as he called it), since no force or threat of force
against any person was used (see, e.g., Matter of Rodriguez Palma, id.,
77 C.J.S. Robbery, section 2 (1952)), it did involve the late night entry
into a building, and it did involve a very large sum of money. Moreover,
although we are not certain of the usual terms of sentence for such
crimes in Cuba, we consider significant the facts that the applicant was
sentenced to 15 years imprisonment for this crime, and that he had
served 8 years when he was, released to come to the United States. The
    We note, for example, that in many of these cases, long sentences, 10 years and more,
are given for crimes that, front the aliens' descriptions, appear to be only simple
larcenies.

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carefully plotted manner in which the crime was planned, several
weeks in advance, is also a consideration which indicates the seriousness of the crime here. These factors combine to convince us that there
are serious reasons to believe that the applicant's crime in. Cuba was a
serious one. We reach this conclusion whether the traditional view or
the balancing test referred to in Matter of Rodriguez Palma, id., is
applied.3
  In deciding this case, we have not relied on the advisory opinion from
the Department of State.
  As the applicant is ineligible for the relief he seeks, his appeal must
be dismissed.
   ORDERa The appeal is dismissed.




  ' We note that the applicant's application for asylum reflects that he would be jailed if
returned to Cuba only, "To finish out my sentence," that he fears persecution because,
"Since lam an ex convict, I am a danger to the state," that he has not been active in any
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organizations hostile to the Cuban government, nor spoken out against the government,
and that none of his family members have suffered due to his actions.

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