Interim Decision #2861
MATTER OF DOURAL
In Exclusion Proceedings
A-23217210
Decided by Board April 14, 1981
.
(1) Since it is evident that the alien, a Cuban applicant for asylum, was placed in exclusion
proceedings solely because he appeared inadmissible by reason of his criminal record under
section 212(2)(9) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9), it is appropriate that a ruling be made with respect to that exclusion ground.
(2) Where there is reason to believe, by the alien's own admissions or otherwise, that
there has been a conviction and that the underlying crime Involved mural turpitude,
the burden is on the applicant for admission to establish that he is not inadmissible
under section 212(09); a finding of inadmissibility need not be supported by a record of
conviction.
(3) Where credibility is at issue, the immigration judge should make apecific findings an
to the truthfulness of the conflicting evidence presented.
EXCLUDABLE:
Order: Act of 1952—Sec. 212(a)(9) U.S.C. 1182(2)(9)1—Convicted of a crime involving
moral turpitude
Sec. 212(a)(20) 18 U.S.C. 1182(a)(20)1 Not in possession of a valid
immigrant visa
ON BEHALF OF APPLICANT: Timothy Carmody, Esquire
1110 Grand Avenue, Suite 600
Kansas City, Missouri 64105 •
BY: Milhollsan, Chairman; Maniatis, Appleman. and Maguire, Board Members
In a decision dated September 29, 1980, an immigration judge found
the applicant excludable under section 212(aX20) of the Immigration and
Nationality Act, 8 U.S.C. 1182(a)(20), denied his requests for asylum
and relief undersection 243(h) of the Act, 8 U.S.C. 1253(4 1 and ordered
him excluded and deported from the United States. The, applicant has
appealed from that decision. The proceedings will be reopened and the
record will be remanded to the immigration judge.
' Technically, the. applicant applied for asylum However, the regulations provide that
asylum requests made 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(b), effective June 1, 1980.
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Interim Decision #2861
The applicant testified with respect to his crime that he and two
others participated in the break-in of a store at about 10 o'clock at
exodus from Cuba. At his exclusion hearing, the applicant acknowledged that he had not been issued a visa or any other document entitling
him to enter this country. He also admitted that he had been convicted
in 1977 of "robbery"2 and was in the process of serving a 10 year prison -
sentence imposed pursuant to that conviction when released for the
purpose of joining the Cuban boat lift.
The applicant testified with respect to his crime that he and two
others participated in the break-in of a store at about 10 o'clock at
night, 3 using a stick to pry open the door and effect entry, and stole
clothing valued at approximately 200 pesos. Questioned by the trial
attorney, the applicant conceded that he and his associates may have
taken some money ane a sewing machine as well.
At the conclusion of the hearing, the immigration judge found the
applicant excludable under section 212(a)(20) as, an immigrant without
the requisite documents. The applicant's testimony regarding his conviction record notwithstanding, the immigration judge made no finding as
to whether he is also excludable under section 212(a)(9) as an alien who
has been convicted of a crime involving moral turpitude. The immigration judge did, however, find the applicant precluded by reason of his
criminal record from establishing eligibility for asylum or section 243(h)
relief.
The statute and the regulations provide that an alien may not obtain a
grant of asylum or section 243(h) withholding of deportation, 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 243(h)(2)(C) of the Act; 8 C.F.R. 208.8(f)(1)(v).
On appeal, the applicant insists that he was not convicted of a serious
nonpolitical crime.
We are unable to render a decision based upon the record now before
us. We are not satisfied on the basis of the applicant's testimony alone
that his crime, clearly nonpolitical, may be considered "serious" within
the contemplation of the Act so as to constitute a bar to the relief sought
(see generally Matter of Rodriguez-Palma, 17 I&N Dec. 465 (BIA
1980); Matter of Ballester,
17 I&N Dec. 592 (BIA 1980)), and the record
is not sufficiently developed to permit a finding on the merits of his
persecution claim (see generally Matter of McMullen,
17 I&N Dec. 542
(BIA 1980)). There is reference in the record to an "attached statement"
Although the applicant referred to his crime as a robbery, it appears from his description of the offense that he was actually convicted of burglary.
3 The applicant testified that he remained outside the building.
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Interim Decision #2861
(see Form I-110) in which the applicant purportedly made an admission
against interest. Neither the applicant's statement nor his asylum
application, Form 1 589, both highly relevant to an adjudication of his
-
asylum request, is contained in the record file. We shall accordingly
direct that the proceedings be reopened for the admission of the foregoing documents into evidence and for further development of the record
with respect to the applicant's request for asylum.
We reopen and remand for the additional purpose of securing a finding by the immigration judge with respect to the section 212(a)(9) ground
of excludability. Since it is evident that the applicant was placed in
exclusion proceedings solely because he appeared inadmissible under
section 212(a)(9) by reason of his criminal record, we believe it appropriate that a ruling be made on that exclusion ground. But see Matter of
Castellon, 17 IN Dec. 616 (BIA 1981).
Where there is reason to believe—by the alien's own admissions, as
here, or otherwise—that there has been a conviction and that the underlying crime involved moral turpitude under prevailing United States
standards (see generally Matter of MeNaughton,
16 I&N Dec. 569 (BIA
1978)), it is incumbent upon the applicant for admission to establish that
he is not inadmissible under section 212(a)(9). Section 291 of the Act, 8
U.S.C. 1361. A finding of inadmissibility need not be supported by a
record of conviction. See Matter of B-, 3. I&N Dec. 1 (BIA 1947). See
generally Matter of Rodriguez-Palma, supra; Matter of Ballester,
supra.
On remand, the applicant and the Government should be accorded a
reasonable opportunity to submit whatever additiOnal evidence they
may wish to present on the questions of the applicant's admissibility and
eligibility for asylum. In the event credibility becomes an issue, it would
be helpful to the Board to have the immigration judge's specific findings
as to the truthfulness of the conflicting evidence presented.
ORDER. The proceedings are reopened and the record is remanded
to the immigration judge for further proceedings consistent with the
foregoing opinion and for the entry of a new decision.
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