REYES

                                                              Interim Decision #3218




                             MATTER OF REYES
                            In Deportation Proceedings

                                     A-90389903

                         Decided by Board April 28, 1994

(1) Although an alien convicted of an aggravated felony is not precluded from applying
  for suspension of deportation, he must still satisfy each of the statutory requirements
  for such relief, including a showing of good moral character.
(2) Section 101(0(8) of the Immigration and Nationality Act, 8 U.S.0 § 1101(0(8)
  (1988), previously barred a finding of good moral character in the case of an alien who
  at any time had been convicted of the crime of murder; however, section 101(0(8) of
  the Act was recently amended and now bars a finding of good moral character in the
  case of an alien "who at any time has been convicted of an aggravated felony (as
  defined in section 101(a)(43))."
(3) If an alien is convicted of murder, regardless of the date of the conviction, he is
  forever precluded from establishing his good moral character under section 101(0(8)
  of the Act.
(4) If an alien is convicted of an aggravated felony other than murder, as that term is
  defined in section 101(aX43) of the Act, he is now forever barred from establishing his
  good moral character under section 101(0(8) of the Act if the aggravated felony
  conviction occurred on or after November 29, 1990.
(5) Section 244(e)(2) of the Act, 8 U.S.0 § 1254(e)(2) (1988), expressly and forever bars
  voluntary departure to an alien who is deportable because of a conviction for an
  aggravated felony if the aggravated felony conviction occurred on or after November
  18, 1988.
CHARGE:
Order: Act of 1952   Sec. 241(a)(2)(A)(iii) [

 l(a)(2)(A)(iiin
                     —                                                        —   Convicted of
                       aggravated felony
                     Sec. 241(a)(2)(C) [

(a)(2)(C)]—Convicted of firearms violation.
ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
  Pro se                                                Wayne Kimball
                                                         General Attorney

BY: Dunne, Acting Chairman; Vac= and Heilman, Board Members


   In a summary decision dated July 15, 1993, an immigration judge
found the respondent, a lawful permanent resident, deportable on the
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Interim Decision #3218

above-noted charges, determined he had made no application for relief
from deportation, and ordered him deported to Mexico, his country of
citizenship. The respondent has appealed.' The appeal will be dismissed.
   At the deportation hearing, the respondent admitted that on
November 7, 1991, he was convicted in the District Court, First
Judicial District, Cimarron County, Oklahoma, of both murder in the
second degree, for which he was sentenced to a period of confinement
of 30 years, and assault and battery with a dangerous weapon, for
which he received a sentence of imprisonment of 10 years, the
imposition of which was suspended. Both of the respondent's convictions are for crimes that constitute aggravated felonies for purposes of
the immigration laws. See section 101(a)(43) of the Immigration and
Nationality Act, 

(a)(43) (Supp. IV 1992); see generally
Matter ofA-A-, 

 (BIA 1992). Based on the evidence
presented, we find, as did the immigration judge, that the respondent
is deportable as charged. See Woodby v. INS, 

 (1966); 

(a) (1993).
   On appeal, the respondent states, apparently in an effort to
demonstrate his eligibility for relief from deportation, that he has
resided in the United States since 1975, his entire family lives here as
well, he has no family to return to in Mexico, and his life would be
jeopardized if he returns to his homeland.
   The record reflects that the respondent adjusted his status to that of
lawful permanent resident on December I, 1990. Inasmuch as 7 years
have not yet elapsed since his acquisition of lawful permanent resident
status, the respondent cannot satisfy the necessary 7-year period of
lawful unrelinquished domicile so as to statutorily qualify for relief
under section 212(c) of the Act, 

(c) (Supp. IV 1992).
Therefore, he is statutorily ineligible for a waiver under section 212(c)
of the Act.
   Although the immigration laws also allow the Attorney General to
grant voluntary departure to certain deportable aliens who otherwise
qualify, the Act now expressly and forever bars such relief to an alien,
who like the respondent here, is deportable because of a conviction for
an aggravated felony. See section 244(e)(2) of the Act, 

(e)(2) (1988). 2
   Suspension of deportation is another form of relief available to

  'The respondent's request to waive the appellate filing fee is hereby granted.
  2 The aggravated felony bar to voluntary departure was added to the Act by section
7343 of the Anti-Drug Abuse Act. of 1988, 

 Slut. 4181, 4470,
and applies to aliens who have been convicted on or after November 18, 1988, of an
aggravated felony.

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                                                             Interim Decision #3218

aliens who have lived in this country a number of years and who
otherwise qualify. See section 244(a) of the Act. In order to establish
statutory eligibility for such relief, however, an alien who is deportable
as a criminal alien under section 241(a)(2) of the Act, 

(a)(2) (Supp. IV 1992), including an alien deportable under
section 241(a)(2)(A)(ili) of the Act for having been convicted of an
aggravated felony, must demonstrate that he has been physically
present in the United States for a continuous period of not less than 10
years immediately following the commission of an act, or the
assumption of a status, constituting a ground for deportation; that
during all of such period he has been and is a person of good moral
character; and that his deportation would result in exceptional and
extremely unusual hardship to himself or his spouse, parent, or child
who is a citizen or lawful permanent resident of the United States. See
section 244(a)(2) of the Act. 3
   Thus, unlike voluntary departure, the Act does not expressly bar an
alien who is deportable because of a conviction for an aggravated
felony from eligibility for suspension of deportation. Instead, such an
alien must satisfy each of the requirements of section 244(a)(2) of the
Act, including a showing of good moral character, in order to establish
initial statutory eligibility for suspension of deportation.
   In examining the defmition of good moral character, we note that
section 101(f) of the Act, 

(f) (1988), establishes eight
specific circumstances in which an alien is precluded from demonstrating his good moral character as a matter of law. See generally Matter of
Awaijane, 14 l&N Dec. 117 (BIA 1972). In most of the categories, the
proscribed conduct has to occur during the statutory period required
by the Act. Since the Act's inception, however, the eighth category has
barred a finding of good moral character in the case of "one who at
any time has been convicted of the crime of murder." Section 101(0(8)
of the Act (emphasis added); Matter of Awaijane, supra, at 120; see also
Matter ofSanchez Linn, 

 (BIA 1991). This provision
                       -


has now been amended. In 1990, Congress passed the Immigration Act
of 1990, 

 Stat. 4978 (effective Nov. 29, 1990)
("1990 Act"), which provides in pertinent part:

  3 The requirements of section 244(aX2) of the Act also apply to aliens who are
deportable under section 241(a)(3) of the Act (failure to register and falsification of
documents), as well as section 241(a)(4) of the Act (security and related grounds). By
contrast, an alien deportable under any other section of the Act must demonstrate only
that he has been physically present in the United States on a continuous basis for a
period of not less than 7 years immediately preceding the date of his application for such
relief, that he has been a person of good moral character for the earn period, and that
his deportation would result in extreme hardship to himself or the same qualifying
relatives mentioned above. See section 244(a)(1) of the Act, 8 U.S.0 § 1254(aX1).

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Interim Decision #3218

    SEC. 509. GOOD MORAL CHARACTER DEFINITION.
        (a) IN GENERAL Section 101(0(8) (

(0(8)) is amended by
                           —


    striking "the crime of murder" and inserting "an aggravated felony (as defined in
    subsection (a)(43))".
See section 509(a) of the Immigration Act of 1990, 104 Stat, at 5051.
Thus, by this amendment Congress deleted the specific reference to
murder previously found in section 101(0(8) of the Act, and instead
extended that section's reach to preclude a finding of good moral
character in the case of one who at any time has been convicted of "an
aggravated felony (as defined in subsection(a)(43))." 4 

 Section
509(b) of the 1990 Act provided that the above-noted revision to
section 101(0(8) of the Act was to take effect upon the date of
enactment of the legislation, i.e., November 29, 1990, and was to apply
prospectively to convictions occurring on or after that date. We note,
however, that section 509(b) of the Immigration Act of 1990 was
subsequently revised to specifically clarify that an alien's conviction
for murder continues to be considered a bar to good moral character,
regardless of the date of the conviction. See section 306(a)(7) of the
Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, 

 Stat. 1733, 1751.5 Hence, if
an alien is convicted of murder at any time, he is forever precluded
from establishing his good moral character under section 101(0(8) of
the Act. Similarly, if an alien is convicted of any other aggravated
felony, as that term is defined in section 101(a)(43) of the Act, he is
forever barred from establishing his good moral character under
section 101(0(8) of the Act if the aggravated felony conviction
occurred on or after November 29, 1990.
   In the instant case, the record reflects that the respondent was
convicted on November 7, 1991, of murder in the second degree, an
aggravated felony for purposes of the immigration laws. As such, he is
clearly precluded from establishing his good moral character under
  4 As murder is specifically included in the definition of "aggravated felony" under
section 101(a)(43) of the Act, the 1990 revisions to section 101(0(8) of the Act clearly
and significantly broadened the class of individuals who are now forever precluded from
establishing their good moral character.
  5 We also note that a widely circulated publication, Immigration and Nationality Act
with Notes and Related Laws, prepared for the use of the Committee on the Judiciary of
the House of Representatives, incompletely, and therefore incorrectly, identifies the
effective date of the 1990 revision to section 101(0(8) of the Act. See House Comm. on
the Judiciary, 102d Cons., 2d Sess., Immigration and Nationality Act with Notes and
Related Laws 25 n.37 (Comm. Print, 9th ed. 1992). To reiterate, the 1990 amendment to
section 101(0(8) of the Act applies to a conviction for an aggravated felony, as defined in
section 101(a)(43) of the Act, occurring on or after November 29, 1990, citcept with
respect to a conviction for murder, which shall be considered a bar to good moral
character regardless of the date of the conviction.

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section 101 (0(8) of the Act. The record further reflects that the
respondent was convicted on the same day of assault and battery with
a dangerous weapon, also an aggravated felony for purposes of the
immigration laws. As his conviction for this aggravated felony
occurred after November 29, 1990, he is also by this reason precluded
from establishing his good moral character under the new language of
section 101(0(8) of the Act. Since the respondent cannot, as a matter
of law, establish his good moral character, he cannot demonstrate his
statutory eligibility for suspension of deportation.
    On appeal, the respondent also states that his criminal behavior was
in actuality an act of self-defense. As the respondent does not elaborate
further, it is not altogether clear why he is advancing this claim in the
instant proceedings. To the extent he is challenging his deportability,
we note that it is well settled that neither this Board nor • the
immigration judge has the power to adjudicate the validity of a
conviction underlying deportation proceedings. See Zinnanti INS,

 (5th Cir. 1981); Ocon-Perez v. INS, 

 (9th
Cir. 1977). Immigration authorities must look to the judicial record
and may not go beyond it to determine guilt or innocence. Longoria-Castenada v. INS, 

 (8th Cir.), cert. denied, 

(1977); Agurilera-Enriquez v. INS, 

 (6th Cir. 1975), cert.
denied, 

 (1976); see Matter of Danesh, 

(BIA 1988); Matter of Khalik, 

 (BIA 1980); Matter of
Fortis, 

 (BIA 1974). Until a conviction is overturned,
it serves as an adequate basis for a deportation order. See Matter of C-,

 (BIA 1960). There is nothing in the record to establish
that the respondent's convictions have been overturned. Therefore, he
remains deportable as charged.
    Since the respondent is deportable as charged and there is no relief
for which he might qualify notwithstanding the equities now articulated, we have no choice but to dismiss the appeal. Accordingly, the
appeal will be dismissed. 6
    ORDER           The appeal is dismissed.




  6 1n light of our disposition of this case, we deny the request of the Service to
summarily dismiss the respondent's appeal.

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