BALAO

Interim Decision #3167




                            MATTER OF BALAO
                          In Deportation Proceedings
                                     A-19679883
                     Decided by Board March 26, 1992

   Intent to defraud is not an essential element of the crime of passing bad checks under
title 18, section 4105(a)(1) of - the Pennsylvania Consolidated Statutes and, therefore, a
conviction under this law is not for a crime involving moral turpitude.
CHARGE:
Orden Act of 1952—Sec. 241(a)(4) [

(a)(4)J—Crimes involving moral
                    turpitude
Lodged; Act of 1952—Sec. 241(a)(1)(C) [

(a)(1)(C)—Nonimmigrantfailed to comply with conditions of status
ON BEHALF OF RESPONDENT.                              ON BEHALF OF SERVICE:
  Philip D. Abramowitz, Esquire                          Richard Sharkey
  Korenberg, Abramowitz SE Feldun                        District Counsel
  15910 Ventura Blvd., Suite 1531
  Encino, California 91436

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

  The respondent has appealed from the June 19, 1991, decision of an
immigration judge finding him deportable as charged and ordering
him deported to the Philippines. The appeal will be sustained in part
and dismissed in part.
   The respondent is a native and citizen of the Philippines, who last
entered the United States on November 29, 1970, as the spouse of an
exchange visitor. On April 27, 1988, he was convicted in the Court of
Common Pleas, Allegheny County, Pennsylvania, on three counts of
passing bad checks, in violation of title 18, section 4105(a)(1) of the
Pennsylvania Consolidated Statutes. The respondent was sentenced to
2 years' probation for this crime. On August 17, 1988, the respondent
was convicted by the same court of theft by failure to make required
disposition of funds received, in violation of title 18, section 3917(a)
of the Pennsylvania Consolidated Statutes. The respondent was
sentenced to 3 1/2 to 7 years' imprisonment for this crime.
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   On December 14, 1988, the Immigration and Naturalization
Service issued an Order to Show Cause, Notice of Hearing, and
Warrant for Arrest of Alien (Form I-221S) charging the respondent
with deportability under section 241(a)(4) of the Immigration and
Nationality Act, 

(a)(4) (1988), as an alien who, after
entry, had been convicted of two crimes involving moral turpitude, not
arising out of a "single scheme of criminal misconduct." The Order to
Show Cause alleged further that the respondent had been admitted as
the spouse of a nonimmigrant exchange visitor with authorization to
remain until January 14, 1972. Finally, it was asserted that the
respondent had been granted indefinite voluntary departure on
January 21, 1972, as the beneficiary of an approved third-preference
visa petition filed on behalf of his spouse. At deportation proceedings
commenced on February 13, 1991, the Service lodged an additional
ground of deportability against the respondent pursuant to section
241(a)(1)(C) of the Act, 

(a)(1)(C) (Supp. II 1990),
alleging that he was also deportable as a nonimmigrant who failed to
maintain the conditions of his status by remaining in the United States
beyond the period of his authorized stay.
   At his deportation hearing, the respondent, who elected to proceed
without representation, admitted the allegations contained in the
Order to Show Cause regarding the terms of his admission and his
convictions. However, he denied his deportability under section
241(a)(4) of the Act, contending that all of his convictions arose out a
"single scheme," namely, the financial downfall of his tobacco and
cigarette distributing company. The respondent maintained that his
bank froze his company account and did not honor three checks he
had drawn on the account because he was unable to repay a previously
obtained bank loan. He testified further that his conviction for failure
to make required disposition of funds resulted from his receipt of
$190,000 from various individuals in an attempt to refinance his
faltering business. The respondent maintained that all of his convictions arose from financial problems which began when one of his
major customers went into bankruptcy, leaving his business without
available cash. Since all of his convictions arose out of the same
problem, the respondent argued that he was not deportable under
section 241(a)(4) of the Act for crimes "not arising out of a single
scheme of criminal misconduct."
   Further, the respondent alleged that he was not deportable as an
overstayed nonimmigrant under section 241(a)(1)(C) of the Act
because he had been granted indefinite voluntary departure and
authorization to work by the Government until such time as a visa
became available to him. He indicated that it was his understanding
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that he was legally in the United States awaiting "permanent residency
for a priority date."
   At the conclusion of the hearing, the immigration judge determined
that the respondent was deportable as charged under section 241(a)(4)
of the Act. Noting that he was without authority to go behind the
record of conviction, the immigration judge found that the respondent's bad check conviction indicated the adjudicating court's finding
of an element of deceit. He concluded further that these crimes and the
respondent's conviction for theft by failure to make required disposition of funds received did not arise out of a single scheme of
misconduct despite the respondent's claim that they all arose out of the
failure of his business.
   The immigration judge also found the respondent deportable as an
overstayed nonimmigrant. In reaching this conclusion, he noted that
the grant of indefinite voluntary departure to the respondent was only
an acquiescence by the Service of his presence in the United States.
According to the immigration judge, while the Government may not
have intended to enforce an order of deportation against an alien who
was granted indefinite voluntary departure, such a grant did not
preclude the entry of an order of deportation against that alien. The
immigration judge determined that since the respondent's nonimmigrant status expired on January 14, 1972, he was no longer in a valid
nonimmigrant status and was therefore subject to deportation. Finally,
the immigration judge determined that the respondent was not eligible
for any form of relief from deportation due to his convictions. In this
regard, he noted that the respondent did not appear to qualify for a
waiver of his crimes, despite the existence of his United States citizen
children, based on the apparent changes in the provisions of section
212(h) of the Act, 

(h) (Supp. II 1990), under section
601(d)(4) of the Immigration Act of 1990, 

Stat. 4978, 5076-77.
   On appeal, the respondent, now represented by counsel, reiterates
his claim that the Service has failed to establish his deportability under
section 241(a)(4) of the Act. Initially, the respondent asserts that none
of his convictions is for a crime involving moral turpitude. In
particular, the respondent argues that his August 1988 conviction for
theft by failure to make required disposition of funds received does
not involve moral turpitude. The respondent also contends that the
Service has failed to establish that his crimes did not arise out of a
"single scheme of misconduct" so as to render him deportable
pursuant to section 241(a)(4) of the Act.
  Further, the respondent urges that he is not deportable under
section 241(a)(1)(C) of the Act since he was granted indefinite
voluntary departure on January 21, 1972, and the district director

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never revoked that grant prior to the commencement of the present
deportation proceedings. Citing Immigration and Naturalization Service Operations Instructions 242.10 (1972), 1 the respondent asserts
that from July 1956 to July 31, 1972, a nonimmigrant present in the
United States who was subject to deportation was eligible for extended
voluntary departure if he was the beneficiary of an approved third-preference visa petition. He maintains that an alien granted such
extended voluntary departure was permitted to remain in the United
States indefinitely until an immigrant visa became available to him.
Finally, the respondent argues that the immigration judge erroneously
dissuaded him from applying for a section 212(h) waiver. He contends
that he is statutorily eligible for such relief despite the revision of
section 212(h) by the Immigration Act of 1990, 104 Stat. at 5076-77.
Further, he asserts that he is the parent of several United States citizen
children, one of whom is 21 years old.
   Upon a review of the record before us and the statute under which
the respondent was convicted, we find that the decision of the
immigration judge with regard to the respondent's deportability under
section 241(a)(4) of the Act is in error.
   Section 241(a)(4) of the Act provides for the deportation of an alien
who "at any time after entry is convicted of two crimes involving
moral turpitude, not arising out of a single scheme of criminal
misconduct, regardless of whether confined therefor and regardless of
whether the convictions were in a single trial." As a primary matter,
therefore, we must determine whether the respondent's crimes involve
moral turpitude. We conclude that the convictions for passing bad
checks are not for crimes involving moral turpitude.
   We have held that where a law governing the issuance of worthless
checks, by its express terms, involves an intent to defraud, a
conviction for a violation of that law constitutes a conviction for a
crime involving moral turpitude for immigration purposes. See Matter
of Malik, 17 I&N Dee. 518 (BIA 1 980) (Michigan); Matter of Logan,
 

 (BIA 1980) (Arkansas); Matter of Westman, 

 (BIA 1979) (Washington); Matter of McLean, 

 (BIA 1967) (California and Colorado). However, the Pennsylvania
statute at issue here does not expressly require intent to defraud as an
element of the crime. 

(a)(1) (1987). The
statute speaks only of the "knowing" issuance of bad checks. 

   Former Operations Instructions 242.10 provided in pertinent part:
    Voluntary departure prior to commencernent of hearing (a) Authorization. Voluntary
  departure natty be granted to any alien who is statutorily eligible therefor ... (6)(i)
  who is the beneficiary of an approved third preference petition ....
See also United States ex reL Parco v. Morris, 

, 980 n.7 (E.D. Pa. 1977).

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   The Pennsylvania Supreme Court, in construing section 4105(a)(1),
has answered the question of whether intent to defraud is necessary to
a conviction under the statute. As stated by the court, it is well
established that in enacting section 4105(a)(1), the legislature intended
to denominate as a crime the passing of a check for which there are
insufficient funds, where the insufficiency was within the knowledge of
the issuer, regardless of whether the issuer possessed a specific intent
to defraud. Commonwealth v. Kyslinger, 

 (Pa. 1984);
Commonwealth v. Mutnik, 

 (Pa. 1979). In Mutnik, the
court specifically noted that section 4I05(aX1) differs in one important aspect from its repealed predecessor, section 4854, in that an
intent to defraud is no longer an essential element of the crime. The
court stated as follows:
  Former section 4854 expressly required an intent to defraud as one of the essential
  elements of the crime, see Commonwealth v. Horton, 

, 

 (1975). In redrafting the Crimes Code in 1972, the legislature deliberately
  omitted the requirement of an intent to defraud as a constituent element of the crime
  of issuing a bad check.... Moreover, we are permitted to consider the prior act only
  when the words of the present statute are not explicit. When, as here, "thc words of a
  statute are clear and free from all possible ambiguity, the letter of it is not to be
  disregarded under the pretext of pursuing its spirit." 1 Pa. C.S.A. § 1291(b) (1979
  Pamphlet). We therefore hold that section 4105 does not require the Commonwealth
  to prove an intent to defraud on the part of the defendant.
Commonwealth v. 

 at 517 - 18 (footnote omitted).
   The respondent's convictions under section 4105(a)(1) therefore
come within the ambit of those Board decisions where we held that,
with regard to worthless check convictions, moral turpitude is not
involved if a conviction can be obtained without prior proof that the
convicted person acted with intent to defraud. See Matter of Zangwill,

 (BIA 1981), rev'd on other grounds, Matter of Ozkok,

 (BIA 1988); Matter of Colbourne, 

(BIA 1969); Matter of Stasinskt, 

 (BIA 1965). In
accordance with these precedents, we find that the respondent's
convictions for passing bad checks are not for crimes involving moral
turpitude.
   Based on the foregoing, we conclude that the Service has failed to
establish the respondent's deportability under section 241(a)(4) of the
Act. Even assuming, arguendo, that the respondent's conviction for
theft by failure to make required disposition of funds received
constitutes a conviction for a crime involving moral turpitude,
deportability under section 241(a)(4) requires that an alien be convicted of at least two crimes involving moral turpitude. Since the
respondent's convictions for passing bad checks do not involve mural
turpitude, the Service cannot establish the respondent's deportability
pursuant to section 241(a)(4) of the Act. Thus, we need not reach the
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question of whether or not the respondent's crimes arose out of a
single scheme of criminal misconduct. Accordingly, that part of the
respondent's appeal relating to the charge of deportability under
section 241(a)(4) will be sustained.
  We turn now to the charge of deportability brought under section
241(a)(1)(C) of the Act. It is undisputed that the respondent was
granted indefinite voluntary departure on January 12, 1972, as the
derivative beneficiary of a third-preference visa petition approved on
his wife's behalf. Under an Immigration and Naturalization Service
policy in effect from at least August 1956 until July 31, 1972, a
nonimmigrant physically in the United States, who was subject to
deportation but who filed a satisfactory third-preference visa petition,
was eligible for extended (indefinite) voluntary departure. See former
Operations Instructions 242.10(a)(6) (1972); Matter of Banaria, 

 (BIA 1977). Citing 

(c) (1991), the
respondent asserts that since he was never notified by the district
director of the revocation of this indefinite voluntary departure grant,
he cannot he deported as an overstayed nonimmigrant pursuant to
section 241(a)(1)(C) of the Act. We disagree.
   The above-referenced Operations Instructions relating to the Service's indefinite voluntary departure policy was rescinded on July 31,
1972. Thereafter, the Service policy regarding indefinite voluntary
departure was codified at 

(a)(2) (1979). See also 

, 29,528 (1978). Pursuant to 

(a)(2)(vi)(D) (1991), voluntary departure is available to an
alien who: 1) is statutorily eligible for such relief, 2) is admissible to
the United States as an immigrant, and 3) is a third-preference alien
with a priority date earlier than August 9, 1978. The respondent falls
into this category of aliens since he was granted derivative third-preference status on January 12, 1972. We emphasize, however, that 

(a)(3) (1991) specifically limits the period of voluntary
departure granted. By its terms, an alien within the above category,
such as the respondent, is granted voluntary departure for an
indefinite period until an immigrant visa is available. The respondent
himself has noted this limitation on the voluntary departure granted
him pursuant to the precursor to this regulation. The State Department Visa Bulletin indicates that a visa became available to the
respondent in November 1988. See Department of State Visa Bulletin,
Vol. VI, No. 15 (November 1988). There is no indication that the
respondent took any action to acquire immigrant status after a visa
became available to him. We conclude that the respondent's voluntary
departure grant expired once a visa became available to him and he
failed to act upon that availability and enter the United States as an
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immigrant. He then reverted to the nonimmigrant status under which
he was admitted.
    The respondent's reliance on 

(c) (1991) is misplaced. That section provides for the revocation of voluntary departure by a district director or other designated official, without notice, if
it subsequently appears that voluntary departure should not have been
granted. The regulation is inapplicable to the present case. The
question presented here relates to the termination of the respondent's
voluntary departure period and not the revocation. of such grant,
which is addressed in 

(c) (1991). As previously
indicated, the point of termination is specifically stated in 

(a)(3) (1991). Moreover, we find totally without merit counsel's assertion that the language of the regulation implies that all other
voluntary departure recipients must be notified of any attempted
revocation. Counsel's theory assumes language not contained in the
regulation.
   The Form 1-94 (Arrival-Departure Record) contained in the record
reflects that the respondent's nonimmigrant status, with extensions,
                                                         -


expired on January 14, 1972. The respondent is therefore in the
United States beyond the period authorized and is deportable under
section 241(a)(1)(C) of the Act as a nonimmigrant who failed to
maintain the conditions of his status. That part of the respondent's
appeal relating to the charge of deportability under section
241(a)(1)(C) of the Act will be dismissed.
   Finally, we conclude that a section 212(h) waiver is unavailable to
the respondent as a means of relief from deportation. Section 212(h)
relief is available in deportation proceedings in conjunction with an
application for adjustment of status, where it may be used to waive
inadmissibility that -would otherwise preclude adjustment of status.
See Matter of Parodi, 

 (BIA 1980); Matter of
Bernabella, 

 (BIA 1968). It has also been held available
to aliens deportable under section 241(a)(4) of the Act to waive the
comparable ground of excludability under section 212(a)(9) on a nunc
pro tune basis. Matter of Sanchez, 

 (BIA 1980).
However, the respondent did not apply for adjustment of status during
the deportation proceedings and to date has made no such application
for relief. Additionally, section 212(h) relief is not available to the
respondent on a nunc pro tune basis since it has not been demonstrated that he departed and returned to the United States since the
time of the 1988 convictions. Matter of Parodi, supra. Given the
respondent's clear ineligibility for relief under section 212(h), either
the former version or as amended by the Immigration Act of 1990, 104
Stat. at 5076-77, we need not reach the other issues raised by him

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relating to the application of that section? The respondent has not
applied for any other form of relief from deportation. Accordingly, the
following orders will be entered.
   ORDER:         The appeal from the finding of deportability under
section 241(a)(4) of the Act is sustained.
   FURTHER ORDER                The appeal from the finding of deportability under section 241(a)(1)(C) of the Act and the denial of section
212(h) relief is dismissed.




  2 As indicated by the immigration judge, at the time of the respondent's June 19, 1991,
deportation hearing, the law with regard to section 212(h) was in flux. In this regard, we
note that section 212(h) was significantly amended, first by the Immigration Act of
1990, 104 Stat. at 5076-77, and subsequently by section 307(1) of the Miscellaneous and
Technical Immigration and Naturalization Amendments of 1991, 

 Stat. 1733, 1755.

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