D

                                                             Interim Decision #3223




                                MATTER OF D-
                          in Deportation Proceedings
                                     A-41483959
                      Decided by Board June 24, 1994

(1)Under Massachusetts law, an indeterminate sentence of imprisonment is considered
  to be a sentence for the maximum term imposed, so that convictions for armed
  robbery, assault and battery with a dangerous weapon, and assault with a dangerous
  weapon were for aggravated felonies under section 101(a)(43) of the Immigration and
  Nationality Act, 8 U.S.C_ § 1101(a)(43) (Supp. V 1993), as each was a crime of
  violence for which the alien had a sentence imposed of 5 years or more.
(2) As aggravated felonies, such convictions rendered the alien statutorily ineligible for
  asylum under section 208(d) of the Act, 

(d) (Supp. V 1993) and
  further for withholding of deportation under section 243(h) of the Act, 

(h) (1988 & Supp_ V 1993) and 

 (1994), since they also
  constituted convictions for particularly serious crimes.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2)(A)(ii) [

(a)(2)(A)(ii)I—Crimes involving moral turpitude
Lodged: Act of 1952—Sec. 241(aX2)(A)(iii) [

(a)(2)(A)(iii)i—Convicted
                         of aggravated felony

ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
  Pro se                                               Sean H. Keenan
                                                       General Attorney

BY: Dunn; Acting Chairman; Vacca and Heilman, Board Members


ORDER:
   PER CURIAM. The appeal is dismissed. The request for oral
argument is denied. We have reviewed the record in this case and have
considered the respondent's contentions as advanced on his Notice of
Appeal (Form EOIR-26) with attachment filed on November 18, 1993,
and in his appeal brief filed on January 25, 1994. In an oral decision
dated November 18, 1993, an immigration judge found the respondent
deportable as charged, pretermitted his applications for relief from
Interim Decision #3223

deportation, and ordered him deported from the United States to
Haiti.
   In her decision, the immigration judge first determined that the
respondent was deportable as charged in the Order to Show Cause and
Notice of Hearing (Form I-221) issued on February 26, 1993, under
section 241(a)(2)(A)(ii) of the Immigration and Nationality Act, 

(a)(2)(A)(ii) (Stipp. V 1993), as an alien convicted of two
or more crimes involving moral turpitude not arising out of a single
scheme of criminal misconduct, and as charged in the lodging
document issued on September 29, 1993, under section
241(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated
felony. These charges are based on the crimes reflected in certified
photocopies of conviction documents, which show that on December
17, 1992, the respondent was convicted upon guilty pleas in the
Suffolk Superior Court, Boston, Massachusetts, of the following
crimes: assault and battery with a dangerous weapon under Mass. Gen.
L. ch. 265, § 15A(b), which offense was committed on March 18,
1992; three counts of assault with a dangerous weapon under Mass.
Gen. L. ch. 265, § 15B(b), which offenses were committed on March
18, 1992; and armed robbery under Mass. Gen. L. ch. 265, § 17,'which
offense was committed on March 29, 1992. For the armed robbery,
which involved the use of a handgun, the respondent was sentenced to
a prison term of a maximum of 7 years and a minimum of 4 1/2 years.
He received an identical sentence for the assault and battery, which
involved the use of a knife. For each of the three counts of assault,
which involved the use of a machete, the respondent was sentenced to
a prison term of a maximum of 5 years and a minimum of 4 years. The
five sentences were to run concurrently.
   Next in her decision, the immigration judge pretermitted any
application by the respondent for asylum and withholding of deportation, noting that his convictions for the armed robbery offense, the
assault and battery offense, and the assault offenses were for aggravated felonies under section 101(a)(43) of the Act, 

(a)(43)
(Supp. V 1993), in that they were crimes of violence for which the
respondent had a sentence imposed of 5 years or more, and noting that
such convictions for aggravated felonies also were for particularly
serious climes.'

    Under section 208(d) of the Act, 8 U.S.C. § I158(d) (Supp. V 1993), an alien who
has been convicted of an aggravated felony is statutorily ineligible for asylum and,
further, is statutorily ineligible for withholding of deportation under section 243(h) of
thz Act, 

(h) (1988 & Supp. V [993), and under 

)11.16 (1994)
because such conviction for an aggravated felony also constitutes a conviction for a
particularly serious crime. See Matter of C-, 

 (BIA 1992); Matter of K-,

 (BIA 1991); Matter of U-M-, 

 (BIA 1991), affd, 989

                                          SOS
                                                            Interim Decision #3223

   In upholding the immigration judge's pretermission of any application for asylum and withholding of deportation, we observe that the
respondent received an indeterminate sentence for each of his crimes.
The highest court of Massachusetts has adopted the position that an
indeterminate sentence is considered to be a sentence for the
maximum term imposed. See Campbell v. Commonwealth, 

 (Mass. 1959) (holding that indeterminate sentence, the maximum
length of which was 5 years, was to be taken as a sentence for 5 years);
see also Rodrigues v. INS, 

 (1st Cir. 1993) (citing Campbell
v. 

 This view is consistent with the rulings of
federal courts regarding the measurement of an indeterminate sentence. See, e.g., Rodrigues v. INS, supra; Baughman v. United States,

 (4th Cir. 1971), cert. denied, 

 (1972); King
v. United States, 

 (D.C. Cir. 1938); United States ex rel.
Paladino v. Commissioner, 

 (2d Cir. 1930); Roccaforte v.
Mulcahey, 

 (D. Mass.), affd per curiam, 

(1st Cir_ 1958). Moreover, it is consistent with the precedent decisions
of this Board. We held in Matter of Chen, 

 (BIA
1964), that an indeterminate sentence was a sentence for the maximum term in accordance with the position taken by California courts,
in concluding that a respondent's sentence to imprisonment for 6
months to 10 years under California law was a sentence to confinement for a year or more within the meaning of section 241(a)(4) of the
Act, 

(a)(4) (1964). 2 See also Matter of Ohnhauser, 

 (BIA 1964); Matter of R-, 1 1&N Dec. 540 (BIA 1943);
Matter of R-, 

 (BIA 1942). In line with the foregoing,
we find that in this case the respondent was sentenced to a prison term
of at least 5 years for each of his offenses.
   Additionally, the immigration judge pretermitted any application
by the respondent for a waiver of inadmissibility under section 212(c)
of the Act, 

(c) (Supp. V 1993), noting that the
respondent's period of lawful permanent residence dating from 1988
fell short of the requisite 7 years.

F.2d 1085 (9th Cir. 1993). Section 208(d) of the Act was enacted by section 515 of the
Immigration Act of 1990, 

 Stat. 4978, 5053 (enacted Nov. 29,
1990), and is applicable to asylum applications filed on or after the date of enactment.
See Matter of U-M-, supra. Section 243(h) of the Act was amended by section 603(b) of
the Immigration Act of 1990, 104 Stat. at 5085. Section 603(b), pertaining to
deportation grounds, is applicable to deportation proceedings where notice was given to
the alien on or after March 1, 1991. See section 602(d) of the Immigration Act of 1990,
104 Stat. at 5082.
  2 Section 241(a)(4) of the Act was revised and redesignated as section 241(a)(2)(A) of
the Act by section 602 of the Immigration Act of 1990, 

 Stat.
4978, 5079-80.

                                          210
Interim Decision #3223

    On appeal, the respondent makes several arguments. He contends
 that he is eligible to apply for relief from deportation, including a
waiver, because although he has been convicted of an aggravated
 felony, he has not served 5 years in prison for it. He asserts that he is
eligible for a waiver under section 212(h) of the Act because he has a
lawful permanent resident father and a United States citizen child. He
urges that he will face extreme hardship if deported to Haiti because he
has family members in the United States but none in that country. He
maintains that his deportation hearings were unfair for two reasons.
First, after his final hearing was rescheduled from November 17, 1993,
to November 18, 1993, he was unable to present witnesses whose
testimony could have resulted in a different decision. Second, his
motion for an interpreter was not granted, and he and his would-be
witnesses were uncomfortable testifying in English due to their limited
understanding of that language.
    With respect to the immigration judge's pretermission of the
respondent's application for a section 212(c) waiver, we agree with her
determination on the basis that the respondent lacks the necessary 7
years of lawful permanent residence. We recognize that section 212(c)
in its last sentence provides that relief thereunder is unavailable to an
alien who has been convicted of an aggravated felony and has served a
term of imprisonment of at least 5 years. However, such was not the
ground relied upon by the immigration judge when she pretermitted
the respondent's section 212(c) waiver application.
   With respect to the contention on appeal that the respondent
qualifies for a section 212(h) waiver of excludability, we find that the
respondent has not established that he is eligible for such relief. The
respondent has presented no evidence that he is eligible for a visa or
even has applied for a visa or adjustment of status so as to fulfill the
requirements of section 212(h) of the Act. He has not identified
anyone who could file a visa petition on his behalf which would lead to
his eligibility for adjustment of status under section 245(a) of the Act,

(a) (1988). See Matter of K4,-, 

 (BIA
1993), affd, 

 (8th Cir. 1993).
   With respect to the contention regarding the extreme hardship to be
faced by the respondent upon his deportation, we observe that the
respondent, who is deportable under section 241(a)(2)(A)(ii) of the
Act, is statutorily ineligible for suspension of deportation under
section 244(a)(2) of the Act, 

(a)(2) (Supp. V 1993), and
for voluntary departure under section 244(e) of the Act, because he is
precluded from establishing the requisite good moral character for the
respective 10-year and 5-year periods, due to his commission in 1992
of the acts underlying his convictions, which are for crimes involving
moral turpitude. The respondent also is statutorily ineligible for
                                  830
                                                 Interim Decision #3223

voluntary departure under section 244(e)(2) of the Act, as an alien
 deportable under section 241(a)(2)(AXiii) of the Act based on his 1992
convictions for aggravated felonies. Thus, we need not consider
whether the respondent has demonstrated extreme hardship to himself
or a qualifying relative, which is required under section 244(a)(2) of
the Act. We note that the respondent has not demonstrated eligibility
 for any other form of relief from deportation.
   Finally, we turn to the allegations concerning the unfairness of the
respondent's deportation hearings. We observe that in deportation
proceedings an alien has not been given a fair hearing only if he has
been prejudiced by some deficiency so as to deprive him of due
process. See Vides-Vides v. INS, 

 (9th Qr.
 1986); Nicholas v. INS, 

 (9th Cir. 1979); Martin-Mendoza v. INS, 

 (9th Cir. 1974), cert. denied, 

 (1975). We observe also that in administrative deportation
proceedings, the Federal Rules of Evidence are not controlling. Matter
of Velasquez, 

 (BIA 1986); see also Martin-Mendoza v.
INS, supra; Matter of Unjalva, 

 (BIA 1988). Pursuant
to applicable regulations, an immigration judge "may receive in
evidence any oral or written statement which is material and relevant
to any issue in the case previously made by the respondent or any
other person during any investigation, examination, hearing, or trial."

(c) (1994). Furthermore, an immigration judge has
the discretion to "exclude from the record any arguments made in
connection with ... applications." 

 {1994). A
respondent's rights to present evidence and to confront the evidence
against him are not absolute but are circumscribed by the due process
concept of reasonableness. See section 242(b) of the Act, 

(b) (Supp. V 1993); see also Marroquin-Manriquez v. INS, 

 (3d Cir. 1983), cert. denied, 

 (1984);
Matter of Velasquez, supra.
   In stating that he was unable to have certain witnesses in attendance
due to the rescheduling of his hearing, the respondent apparently
contends that he should have been granted a continuance so that the
witnesses could appear to testify on his behalf. However, the record
reflects that at the second hearing on November 18, 1993, the
immigration judge inquired of the respondent whether he would like
an additional period of at least 14 days to prepare his case, given that
he had been charged with an additional ground of deportability under
section 241(a)(2)(A)(iii) of the Act by means of the lodging document
issued on September 29, 1993. The respondent replied that he would
waive that period of time. When asked by the immigration judge
whether he wanted to go forward with the hearing, the respondent
said, "Yes." Based on the record, we find that ample testimonial and
                                  on,
Interim Decision #3223

documentary evidence was presented on the issues of the respondent's
deportability and eligibility for relief from deportation.
   Further, the respondent contends that the immigration judge erred
in failing to grant his motion for an interpreter, apparently asserting
that he wanted an interpreter for himself, as well as for any witnesses.
In the record is the respondent's request for a Creole interpreter for
planned witnesses, which request is dated October 28, 1993, and was
denied by the immigration judge on November 8, 1993. As previously
discussed, no witnesses attended the respondent's hearings. The record
does not reflect that the respondent ever requested an interpreter for
himself. To the contrary, when asked by the immigration judge at the
outset of his first hearing whether he spoke English, he replied, "Yes,
ma'am " A review of the transcript does not reveal that the respondent
experienced any difficulties in communicating at the hearings or in
comprehending them. Moreover, the respondent's competency in
English is conveyed by the numerous written statements that he has
submitted both to the immigration judge and on appeal. Thus, there is
no evidence that the respondent was unable to meaningfully participate in his deportation proceedings. See Matter of Tomas, 

 (BIA 1987); Matter of Exilus, 

 (BIA 1982).
   Given the aforementioned circumstances, we find that the immigration judge acted properly in going forward with the final hearing even
though no witnesses were present, in denying the request for an
interpreter, and in holding the hearings in English without an
interpretet. The respondent thus has not shown any deficiency in his
hearings. We conclude, particularly in view of the respondent's failure
to demonstrate eligibility for any relief from deportation, that the
respondent has not proven that his hearings were unfair, inasmuch as
he has not shown any prejudice resulting from a deficiency in the
manner in which they were held. See Vides Vides v. INS, supra;
                                                -


Nicholas v. INS, supra; Martin-Mendoza v. INS, supra.
   Accordingly, we affirm the decision of the immigration judge.




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