Interim Decision #2884
MATTER OF RAMIREZ-RIVERO
In Exclusion Proceedings
A-23224918
Decided by Board October 5,1981
(1) In order for a foreign conviction to serve as a basis for a finding of inadmissibility, the
conviction must be for conduct deemed criminal by United States standaids.
(2) An act of juvenile delinquency is not a crime in the United States and an adjudication
of delinquency is not a conviction for a crime within the meaning of the Immigration
and Nationality Act.
(3)The standards established by Congress, as embodied in the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. 5031 et seq.. as amended by the Juvenile Justice and
Delinquency Prevention Act of 1574, Pub. L. 93 -415, 88 Star- 1133 (effective September 7,
1974), govern whether a foreign offense is to be considered a delinquency or a crime
by United States standards.
(4)The FJDA defines a "juvenile" as "a person who has not attained his eighteenth
birthday,. or for the purpose of proceedings and disposition under this chapter for en
alleged act of juvenile delinquency, a person who has not attained his twenty-first
birthday," and "juvenile delinquency" as "the violation of a law of the United States
conunitted•y a person prior to his eighteenth birthday which would have been a crime
if committed by an adult." 18 U.S.C.
(5) Pursuant to section 5032 of the FJDA, 18 U.S.C. 5032, any juvenile within the jurisdiction of the federal courts alleged to have committed an act of juvenile delinquency
while under 16 years of age is not subject to criminal prosecution as an adult, regardless
of the nature of the offense or the potential punishment, but rather is entitled to benefit
from the protective and rehabilitative provisions of the FJDA unless he waives his right,
in writing upon advice of counsel, to such treatment.
(6) Inasmuch as the Board will not presume that a juvenile would opt to forego his right
to be proceeded against as a delinquent in favor of criminal prosecution, the applicant's
breaking and entering theft committed when he was 13 years of age, though treated as a
crime inCuba, may not as a matter of law be deemed criminal by United States standards
and therefore is not an excludable offense under section 212(a)(9) of the Immigration
and Nationality Act, 8 U.S.C. 1182(a)(9).
EXCLUDABLE:
Order: Act of 1952—Sec. 212(aX9) [8 U.S. C. 1182(a)(9)1 Convicted of a crime involving
moral turpitude
Sec. 212(a)(20) [8 U.S.C. 1182(a)(20))—Inunigrant not in possession
of valid unexpired visa or other valid entry document
ON BEHALF OF APPLICANT: Richard Berley, Esquire
600 First Avenue
Seattle, Washington 98104
BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members
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Interim Decision #2884
This case is before us on appeal from a decision of an immigration
judge dated October 21, 1980, which found the applicant excludable,
denied his requests for asylum and relief under section 243(h) of the
Immigration and Nationality Act, 8 U.S.C. 1253(h),,' and ordered him
excluded and deported from the United States. The appeal will be
dismissed.
The applicant is a 21 year old native and citizen of Cuba who arrived
- -
in this country by' boat at Key West, Florida, in June 1980, as part of the
Cuban "Freedom Flotilla." He was paroled into the United States for
deferred inspection. Shortly after his arrival in this country, the applicant made certain admissions on the basis of which he was given notice
of his possible excludability under section 212(a)(9) of the Act, 8 U.S.C.
1182(a)(9), as an alien who has been convicted of a crime involving moral
turpitude, and under section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20),
as an immigrant without a valid visa or other entry document. His
parole status was subsequently terminated and he was placed in these
exclusion proceedings.
At his exclusion hearing, the applicant testified tliat he came to thin
country for the purpose of residing here permanently but conceded that
he lacks the requisite documentation. The applicant further testified
that he had been convicted in Cuba for entering an unoccupied private
home and stealing some arms, a large quantity of clothing, and some
combs, having entered the house during the daytime by pushing open a
door.2 He explained that he had stolen the arms not to use as weapons
but to sell; he insisted that he stole solely to provide necessities for
himself and his family. The applicant was 13 years old at the time of the
offense. He had served 6 or 7 years of a 20-year prison sentence imposed
puisuant to his conviction for that offense when released for the purpose
of joining the Cuban boat life
At the conclusion of the hearing, the immigration judge determined
that the applicant is excludable under section 212(a)(20) of the Act. We
agree. Mettler of Castellon, 17 I&N Dec. 616 (BIA 1981). However,
the immigration judge determined that the applicant is not inadmissible
under section 212(a)(9) of the Act, notwithstanding a specific finding
that he was convicted as an adult of a crime under Cuban law, conclud-
rThe applicant applied for asylum. The regulations, however, provide that asylum
requests made in exclusion or deportation proceedings "shall also he considered as requests
for withholding exclusion or deportation pursuant to section 243 Ch) of the Act." 8 C.F.R.
208.3(3).
2 The applicant also admitted to one previous theft, committed when he was 12 years of
age,,for which he was not apprehended.
2 While the applicant's initial testimony with respect to the length of his sentence is
somewhat ambiguous, he appears to have ultimately conceded that he was sentenced to 20
years (Tr. pp. 27-28). In any event, the length of sentence imposed by the Cuban court is
immaterial in light of our legal conclusions in the case.
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Interim Decision #2884
ing that the applicant's age at the time of his offense precludes a finding
that the offense involved moral turpitude. We likewise conclude that the
applicant is not excludable by reason of his conviction record under '
section 212(a)(9) of the Act, but our rationale differs from that of the
immigration judge: we find that the applicant's offense is not a crime
within the contemplation of the Immigration and Nationality Act and
accordingly, do not reach the'question of whether or not the offense was
turpitudinous in nature.
In order for a foreign conviction to serve as a basis for a finding of
inadmissibility, the conviction must be for conduct which is deemed
criminal by United States standards. Matter of McNaughtort, 16 I&N
Dec. 569 (BIA 1978). It is settled that an act of juvenile delinquericy is
not a crime in the United States and that an adjudication of delinquency
is not a conviction for a crime within the meaning of our immigration
laws. See discussion in Hu nu-Leung v. Soscia,
500 F.Supp. 1382
(E.D.N.Y. 1980), and the cases cited therein; Matter of OW-,
2 I&N
Dec. 319 (BIA 1945; A.G. 1945); Matter of F-,
2 I&N Dec. 517 (C.O.
1946; BIA. 1946); Matter of A-,
3 I&N Dec. 368 (BIA 1948); Matter of
C-M-,
5 I&N Dec. 327 (BIA 1953).
Congress manifested its view as to conduct constituting acts ofjuvenile delinquency with the enactment of the FederalJuvenile Delinquency
Act (hereinafter, the FJDA). 4 Considering Congress' plenary power to
legislate with respect to the classes of aliens that may be admitted to the
United States and the correlative desirability of a rule which provides
national uniformity in the administration of a federal statute such as the
Immigration and Nationality Act, we believe it appropriate to look to
the standards fashioned by Congress, embodied in the FJDA, to determine whether a given act is to be considered a delinquency or a crime.by
United States standards.
The FJDA defines a "juvenile" as "a person who has not attained his
eighteenth birthday, or for the purpose of proceedings and disposition
under this chapter for an alleged act of juvenile delinquency, a person
who has not attained his twenty-first birthday," and "juvenile delinquency" as "the violation of a law of the United States committed by a
person prior to his eighteenth birthday which would have been a crime if
committed by an adult." 18 U.S.C. 5031. 5 Pursuant to section 5032 of
the Act, 18 U.S.C. 5032, any juvenile within the jurisdiction' of the
federal courts' alleged to have committed an act of juvenile delinquency
While under 16 years of age is not subject to criminal prosecution as an
18 U.S.C. 5031 et seq., as amended by the Juvenile Justice and Delinquency Prevention Act of 1974. Pub. L. 93-415. 58 Scat_ 11:13 (PrfPctivA September 7, 1974).
6 Under the predecessor to the present section 5031, in force when the applicant committed his offense, "juvenile delinquency" was defined to exclude acts committed by a juve-
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Interim Decision #2884
adult. Rather, he is entitled to benefit from the protective and rehabilitive
provisions of the FJDA unless he waives his right, in writing upon
advice of counsel, to ouch treatment. ?
A juvenile whose alleged offense is perpetrated between his sixteenth
and eighteenth birthday is likewise proceeded against as a juvenile
delinquent unless he is charged with committing an act which, if committed by an adult, would be a felony punishable by a maximum penalty of
10 years imprisonment or more, life imprisonment or death. Under
those circumstances, criminal proceedings may be instituted if a federal
district court determines, after hearing on a motion to transfer for
criminal prosecution brought by the Attorney General, that such transfer would be in the interest of justice. 18 U.S.C. 5032.
As noted earlier, the applicant was 13 years of age at the time of his
offense. ,Under Congressionally mandated procedures governing the
treatment of juveniles, the Government may not proceed criminally
against any person within the jurisdiction of the federal courts whose
alleged offense was committed while under 16 years of age, regardless
of the nature of the offense or the potential punishment, unless on
counsel's advice the youth requests prosecution as an adult. 18 - U.S.C.
5032. We will not presume that a juvenile would opt to forego his right
to be proceeded against as a delinquent in favor of criminal pros e cution_
We thus conclude that the applicant's transgression, whether or not
nile that were punishable by death or life imprisonment. The applicant's offense dearly
was not of such gravity and we consequently need not consider at this time what result
would be reached had that exception applied in this case. Cf. United States v. Mechem,
509 F.2d 1193 (10 Cir. 1975); United States v. Azevetio,
394 F.Supp. 852 (D. Hawaii 1975).
An appropriate federal district court may proceed in a case upon certification by the
Attorney General that the juvenile court or other appropriate court of a state either lacks
or refuses to assume jurisdiction or does not have available programs and services adequate for the needs of juveniles; absent such certification, the juvenile is to be surrendered to state legal authorities.
7 Those protections, which effectively remove juveniles from the 'regular criminal justice
system and provide a separate system of treatment for them, include: proieeding against
the juvenile by information rather than by indictment, thus avoiding the stigma of a
criminal conviction (section 5032, FJDA); providing for representation by counsel at every
critical stage of the proceedings (section 6032); providing for trial within 30 days from the
date of detention in the case of a detained alleged delinquent (section 5030); allowing
considerable flexibility with respect to the disposition of an adjudicated delinquent (section
5037); confining the juvenile, when confinement is deemed necessary (section 5034), in a
facility, separate from the adult criminal population, offering treatment and rehabilitative
services (sections 5035 and 5039); limiting the term of confinement to which an adjudicated
delinquent may be committed to his twenty-first birthday or the maximum term which
could have been imposed on an adult for the same offense, whichever is the lesser period,
or, in the ease of a juvenile who has reached his nineteenth birthday at the time of
disposition, to the lesser of 2 years or the maximum sentenrp which could have been
imposed on an adult (section 5037); and safeguarding the record of proceedings from
disclosure by prohibiting its release except under specified circumstances (section 5038).
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Interim Decision #2884
treated as a crime in Cuba, may not as a matter of law be deemed
criminal by United States standards and consequently is not an excludable offense. Matter of McNaughton, supra. A finding of inadmissibility
under section 212(a)(9) of the Act may not be sustained.
Prior to the exclusion hearing, the applicant's request for asylum was
denied by the District Director who, after consultation with the Department of State, found the applicant barred by his criminal record from
establishing eligibility for the relief sought.' The applicant availed himself of his regulatory right to renew his application before the immigration judge at the hearing. 8 C.F.R. 208.9. Finding that the applicant
was not precluded by the commission of a serious nonpolitical crime
from qualifying for asylum or section 243(h) relief, the immigration
judge nonetheless denied his application for failure to establish his
persecution claim.. The immigration judge's decision is correct.
An applicant far asylum or withholding of deportation must show
that, if deported, his life or freedom would be threatened on account of
his race, religion, nationality, membership in a particular social group,
ur political opinion. 8 C.F.R. 208.5; 8 C.F.R. 286.3(4(2). See generally
Matter of McMullen, 17 I&N Dec. 542 (BIA 1980). To meet his burden
of proof, the applicant must demonstrate a clear probability that he will
be so persecuted if returned to his country. Matter of McMullen,
id.
The applicant has not sustained his burden. He has failed to make, let
alone substantiate; any specific factual allegations tending to establish
that he will be singled out for persecution if deported to Cuba. As the
applicant is inadmissible and ineligible for,the relief he seeks, his appeal
must be dimissed.
ORDER: The appeal is dismissed.
8 The statute and the regulations provide that an alien may not obtain a grant of asylum
or withholding of deportation under section 243(h) of the Act, despite a valid persecution
claim, where it is determined that "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 24:3(h1(2)(C) of the Act_ R U.S.0 1 25:1(10(21(C:):
C.R.F. 208.8(f)(1)(v). See also Matter of Rallester-Gareia. 171&N Dec. 592 (BIA 1980);
Matter of Rodriguez-Patina, 17 1&N Dec. 465 (BIA 1980).
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