Interim Decision #2885
MATTER OF DE LA NUES
In Exclusion Proceedings
A-23224173
Decided by Board October 5, 1981
(1) Conduct underlying a foreign conviction which constitutes an act of juvenile delinquency under United States standards, however treated by the foreign court, is not a
crime for purposes of the Immigration and Nationality Act, and, accordingly, may not
serve as the basis of a finding of excludability under section 212(a)(9) of the Act, 8
U.S.C. 1182(a)(9).
(2) Applying the Federal Juvenile Delinquency Act (FJDA) as the benchmark of United
States standards, an act which would be a crime if committed by an adult is an act of
juvenile delinquency where perpetrated by a youth between 16 and 18 years of age
unless the act complained of, 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, the Attorney General may move to transfer the case for criminal
prosecution. 18 U.S.C. 5032. Matter of 6), 5 I&N Dec. 639 (BIA 1954), modified.
(3) In determining whether a foreign offense would make a juvenile liable to possible
criminal prosecution under United SU-ales standards by virtue of the penalty involved,
the offense is examined in light of the maximum punishment imposable for m equivalent
crime described in the United States Code or, if an equivalent crime is not found there,
in the District of Columbia Code.
(4) Inasmuch as each crime equivalent to the applicant's offenses (ace sections 22 1801(b)
-
and 22-2205, District of Columbia Code, defining second degree burglary and receipt of
stolen goods respectively) carries a /maximum penalty of 10 years imprisonment or
longer, it may not be said that one charged with the commission of either offense while
over the age of 16 years is entitled as a matter of law to treatment as a juvenile
delinquent and therefore it is incumbent upon the applicant, who committed his offenses
at 16 and 17 years of age, to establish that he was in fact dealt with as a juvenile
delinquent in Cuba under a system of treatment substantially similar to the FJDA.
(5) The applicant was given a determinate prison sentence in Cuba extending beyond his
minority and therefore has not estoblished that he was treated as a juvenile delinquent
under a system comparable to C•.ar own abd must be considered to have been convicted
of a crime. Compare 18 U.S.C. 5037(13):
(6) The applicant's burglary-offense is a crime involving moral turpitude notwithstanding
the fact that the offense may have been motivated by economic hardship.
(7)The, juvenile offender exception to section 212(a)(9), available to a qualifying youthful
offender even though he is deemed to have been convicted of a crime involving moral
'140
Intelim Decision #2885
turpitude rather than adjudicated a juvenile delinquent under United States standards,
does not apply to the applicant as fewer than 5 year have elapsed since his release from
confinement.
EXCLUDABLE:
Order: Act of 1952—See. 212(a)(9) [8 U.S.C. 1182(a)(9))—Conviction of a crime involving
moral turpitude
Sec. 212(a)(20) (8 U.S.C. 1182(a)(20)) —Immigrant not in p*sessien
of valid unexpired visa or other valid entry document
ON BEHALF Or APPLICANT. Julie A. Kesler, Esquire
do Seattle-King County Bar
Association
320 Central Building
Seattle, Washington 98104
BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members
The applicant has appealed from a decision of an immigration judge
dated November 14, 1980, which fcund him excludable, denied hint
asylum and relief under section 243(h of the Immigration and Nationality Act, 8 U.S.C. 1253(h), and ordered hi n excluded and deported from
the United States. The appeal will be dismissed.
The applicant, ,a 21-year-old native and citizen of Cuba, arrived in the
United States at Key West, Florida, on June 6, 1980, as part of the
recent exodus from Cuba. On June 21, 1980, the applicant executed a
Sworn statement and an application for asylum in which he admitted to
having been convicted in Cuba on two occasions. According to those
documents, in 1976 when he was 16 years of age, the applicant purchased a stolen motorcycle from a friend for 1,500 pesos. He was convicted of possession of stolen property and sentenced to a 1 year term of -
imprisonment.' In May 1977, at the age of 17 years, the applicant and a
friend broke into a government-owned store at night and stole a quantity of clothing and other goods valued in excess of 8,00Q pesos. The
applicant was arrested shortly after the break-hi and incarcerated without trial until February 1979„ when he was tried, convicted of breaking
and entering theft, and sentenced to 8 years imprisonment. 2 He was
serving that sentence when taken to a boat bound for the United States.
The applicant maintains that he bought the motorcycle not knowing that it was stolen.
Under common law and United States law (see generally 18 U.S.C. 2311 et seq.; District
of Columbia Code, section 22-2205), either actual knowledge or reason to believe the goods
were stolen is an essential element of the offense which must be established in order to
convict. We are unwilling to assume, absent proof, that a fmding of seienter is not likewise
required to convict under Cuban law. The applicant by his own account was eseivictod
2 The applicant's asylum application reflects that he received a 20-year prison sentence
pursuant to second conviction. However, in his separate, more detailed sworn statement,
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Interim Decision #2885
The applicant further stated that he had not been issued a visa or any
other document entitling him to enter the United States. These exclusion proceedings were thereupon instituted to determine whether the
applicant is excludable 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, or under section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20),
as an immigrant without a valid immigrant visa.
At the second in a series of exclusion hearings conducted between
August 13, 1980, and November 14, 1980, the applicant testified that he
intends to remain permanently in the United States but conceded that
he lacks the requisite documentation. He also acknowledged his two
convictions. Midway through the third and final hearing, however, the
applicant belatedly stated that he thought an appeal had been taken
from his second conviction and his sentence reduced to 4 years as a
consequence. He testified that he stole out of necessity.
The immigration judge found the applicant excludable under both
section 212(a)(9) and section 212(a)(20). He further found the applicant
ineligible for asylum or section 243(h) relief.'
In Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981), decided
today, we held that conduct underlying a foreign conviction which consti-
• tutes an act of juvenile delinquency under United States standards,
however treated by the foreign court, is not a crime for purposes of our
immigration laws and, accordingly, may not serve as the basis of a
finding of excludability. Applying the Federal Juvenile Delinquency Act
(hereinafter, the FJDA) 4 as the benchmark of United States standards,
we found that an act which would be a crime if committed by an adult is
an set of juvenile delinquency where perpetrated by a youth under the
age of 16 years or by a youth between 16 and 18 years of age unless, in
the latter case, the act complained of, 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, the
Attorney General may move to transfer the case for criminal prosecution.
Section 5032 of the FJDA, 18 U.S.C. 5032; Matter of Ramirez-Rivero,
id.
incorporated by reference in the asylum application, the applicant explained that while the
prosecutor had sought a 20-year sentence, the court actually sentenced him to 8 years. In
a letur posted to the Immigration and Naturalization Service in August 1980, the applicant likewise advised that he had been serving an 8-year prison sentence when he left his
country. •
The applicant• had renewed his asylum-application, denied earlier by the District
Director following receipt of a State Department advisory opinion, at the hearing before
the immigration judge.
18 U.S.C. 5031 et seq., as amended by the Juvenile Jurstiee and Delinquency Proventien Act of 1974, Pub. L. 93.415, 88 Stat. 1133 (effective September 7, 1974).
" s But see Matter of Ramirez-Eivero, supna, note 5.
142
Interim Decision #2885
Neither of the applicant's offenses was committed while he was under
16 years of age. It is therefore necessary to look to the nature of his
offenses, committed when he was 16 and 17 years of age, in order to
determine whether either or both shall, by reason of the maximum•
punishment imposable, be considered an act of juvenile delinquency
rather than a crime under United States standards. 6
It is settled that United States standards govern in determining
whether an offense committed in a foreign country is a felony or a
misdemeanor within the meaning of section 212(aX9) of the Act. See
Soetarto v. INS, 516 F.2d 778 (7 Cir. 1975); Giammario v. Harney,
311
F.2d 285 (3 Cir. 1962); Matter of Scarpulta,
15 I&N Dec. 139 (BIA
1974), and the cases cited therein. The offense is examined in light of the
maximum punishment imposable for an equivalent crime described in
the United States Code or, if an equivalent crime is not found there, in
the District of Columbia Code. A felony is any offense punishable by
death or imprisonment for a term exceeding 1 year; any other offense is
a misdemeanor. 18 U.S.C. 1(1)(2). The foregoing analysis is appropriate
not only in determining whether a given foreign offense would be considered a felony by United States standards if committed by an adult but
whether the offense, by virtue of being a felony punishable by a maximum penalty of death, life imprisonment, or a prison term of 10 years or
more, exposes a juvenile to possible criminal prosecution pursuant to
the transfer provisions of section 5032 of the FJDA.
The acts for which the applicant was convicted in Cuba most closely
resemble offenses defined by Congress in Title 22 of the District of
Columbia Code, specifically, sections 22-1801(b) and 22-2205, dealing
with second degree burglary and the receipt of stolen goods respectively.'
Inasmuch as burglary in the second degree carries a maximum penalty
of 10 years imprisonment or longer, as does receiving stolen goods
valued at $100 or more, it may not be said that one charged with the
commission of either offense is entitled, as a matter of law, to treatment
as a juvenile delinquent under United States standards.
6 We retreat from our decision in Matter of A-,
5 I&N Dec. 639 (BIA 1954), insofar as it
is inconsistent with our present holding that youths Involved in the commission of relatively minor foreign offenses between the ages of 16 and 18 years are not subject to
exclusion under section 212(a)(9) of the Act.
7 Sections 22-1801 and 22-2205, District of Columbia Code, provide:
§22-1801. Burglary — Penalties.
(a) Whoever shall, either in the nighttime or in the daytime, break and enter, or
enter without breaking, any dwelling, or room used as a sleeping apartment in any
building, with intent to break and carry away any part thereof, or any fixture or other
thing attached to ur commuted thereto or to commit any criminal offense, shall, if any
person is in any part of such dwelling or sleeping apartment at the time of such breaking
and entering, or entering without breaking, be guilty of burglary in the first degree.
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Interim Decision #2885
Under the circumstances, we believe it is incumbent upon the applicant to show that he was in fact dealt with as a juvenile delinquent in
Cuba, and not as an adult criminal, under a system of treatment comparable to that established by Congress with the enactment of the FJE1A.
See generally Matter of Ram irez-Rirero, supra. We note with approval
an excerpt from the immigration judge's Opinion:
This court rules that where a country adopts a procedure inherently like, the adult
procedure in the United States (especially including an adjudicated determination of
guilt and a determinate sentence extending into one's adult life) that that treatment,
even though designated by some name which refers to youth offenders, is not ajuvenile
delinquency proceeding under United States standards. There is a sharp distinction.in
American jurisprudence between the effort to rehabilitate a youth offender in ajuvenile
delinquency proceeding from the fixing of criminal guilt and retributive punishment of
adult offenders.
Decision of the immigration judge at 5.
The burden in exclusion proceedings is upon the applicant for adrnissid to establish that he is not inadmissible under any provision of the
Immigration and Nationality Act. See section 291 of the Act, 8 U.S.C.
1361; Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979). See
generally Matter of Doural, 18 1&N Dec. 37 (BIA 1981). The applicant has not established that he was treated as a juvenile delinquent in
Cuba under a system substantially similar to our own, at least with
respect to the burglary offense,' and he must, accordingly, be considered to have been convicted of a crime. Even if we were to accept as
true the applicant's testimony that his 8-year prison sentence had been
Burglary in the first degree shall be punished by imprisonment for not less than five
years nor more than thirty years.
(b) ENcept ais provided in subsection (a) of this section, whoever shall, either in the
night or in the daytime, break and enter, or enter without breaking, any dwelling,
bank, store, 'warehouse, shop, stable, or other building or any apartment or room,
whether at the time occupied or not, or any steamboat, canalboat, vessel, or other
watoreraft, or railroad car or any yard where any lumber, coal, or other goods or
chattels are deposited and kept for the purpose of trade, with intent to break and carry
away any part thereof or any fixture or other thing attached to or connected with the
same, or to commit any criminal offense, shall be guilty of burglary in the second
degree. Burglary in the second degree shall be punished by imprisonment for not less
than two years nor more than fifteen years.
§22-2205. Receiving stolen goo:is.
Any person who shall, with intent to defraud, receive or buy anything of value which
shall have been stolen or obtained by robbery, knowing or having cause to believe the
lame to be so stolen or so obtained by robbery, if the thing or things received or bought
shall be of the value of $100 or•ipward, shall be imprisoned for not less than one year
nor more than ten years; or if thevalue of the thing or things so received or bought be
less than $100, shall be fined not more than $500 or imprisoned not more than one year,
or both.
8 We need not and do not decide whether the receipt of stolen property offense was
treated as a crime or as an act of juvenile delinquency by the Cuban court.
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Interim Decision #2885
reduced on appeal to 4 years (and the immigration judge apparently did
not find credible that portion of the applicant's testimony), the fact
remains that he was given a determinate sentence extending beyond his
minority. Compare section 5037(b)= of the FJDA, 18 U.S.C. 5037(b). 9
The question whether the applicant's offense was turpitudinous must
be answered in the affirmative. Burglary and theft or larceny, whether
grand or petty, are crimes involving moral turpitude. See Matter of
Leyva, 16 I&N Dec. 118 (BIA 1977), and Matter of Scarpulla, supra,
and the cases cited therein. The fact that the applicant's offense may
have been motivated by economic hardship does not alter that wellestablished proposition. Chiaramonte v. INS,
626 F.2d 1093 (2 Cir.
1980).
In conclusion on the issue of excludability, we hid that the applicant
has failed to sustain his burden of showing that he is not excludable
under section 212(a)(9) of Lk?. Act.' His excludability under section
212(a)(20) of the Act has been established by his admissions. Matter of
Castellon,.
17 I&N Dec. 616 (BIA 1981). 11 The immigration judge properly found the applicant inadmissible on each ground for exclusion alleged.
9 Section 6037, FJDA, provides in pertinent part!
(b) The court may suspend the adjudication of delinquency or the disposition of the
delinquent on such conditions as it deems proper, place him on probation, or commit him
to the custody of the Attorney General. Probation, commitment, or commitment in
accordance with subsection (c) shall not extend beyond the juvenile's twenty-first birthday or the maximum term which could have been imposed on an adult convicted of the
same offense, whichever is sooner, unleis the juvenile has attained his nineteenth
birthday at the time of disposition, in which case probation, commitment, or commitment in accordance with subsection (c) shall not exceed the lesser of two years or the
maximum term which could have been imposed on an adult convicted of the same
offense.
'6 A finding that a juvenile had been convicted of a crime rather than adjudicated a
delinquent and that the crime involves moral turpitude does not necessarily preclude him
from establishing that he is not inadmissible under section 212(a)(9) of the Act Section
-
212(a)(9) exempts from its provisions youths who have committed only one crime involving moral turpitude while under-18 years of age provided the crime was committed more
than 5 years prior to the date of application for a visa and for admission to the United
States or, if the crime resulted in confinement in a prison nr correctional institution, the
alien was released from confinement more than 5 years prior to the date of application for
a visa and admission. See Matter of C-Af-, 5 I&N Dec. 327 MIA 1953). As fewer than 5
years have elapsed since the applicant's release from confinement, he may not benefit
from the juvenile offender exception of the statute.
" On appeal, the applicant through counsel contends that he ought to have been granted
a waiver of excludability under section 212(dX4) of the Act, 8 U.S.C. 1182(d)(4). That
section, which authorizes the waiver of documentary requirements in the case of certain
aliens seeking admission as noninunigrants, is inapplicable where, as here, the alien has
failed to establish that he qualifies as a nonimmigrant. See section 101(a)(15) of the Act, 8
U.S.C. 1101(4(15); section 214(b) of the Act, 8 U.S.C. 1184(b). •
145
Interim Decision #2885
The immigration judge denied the applicant's asylum request for failure to satisfy his burden of demonstrating that his life or liberty mould
be threatened if required to return to Cuba on account of his race,
religion, nationality, membership in a particular social group, or political opinion. See generally Matter of McMullen, 17 I&N Dec. 542 (BIA
1980. The immigration judge's determination will be affirmed.
The applicant's asylum application, uncontroverted by his testimony
at the hearing, reflects that he never belonged to any organizations
hostile to the interests of Cuba, that he never expressed any political
opinions or acted in a .-nanner which was regarded by the Cuban authorities as opposed to the interests of that count-y, that his family never
suffered because of his absence, actions, or political opinions, and that
the conditions in Cuba did not affect his freedom more than the rest of
the Cuban population. The applicant's mere assertion that he will be
persecuted or that he disagrees with the political and economic system
in Cuba is not sufficient to establish his Nrsecution claim; nor does the
fact, that he may be required to complete his term of imprisonment if
returned to Cuba constitute persecution within the contemplation of the
Act. The appeal will be dismissed.
ORDER. The appeal is dismissed.
