V-D-B

                      MAI ILIt OF

                     In EXCLUSION Proceedings
                                A-10067176
                      Decided by Board March 11, 1960

W aiver of excludability—Nune pro tune exercise of sections 5 and 7, Act of
  September 11, 1957, not authorized to correct documents issued prior to that
  date—Conviction in absentia.
(1) Nuns pro tunc waivers of inadmissibility under sections 5 and 7 of Act
  of September 11, 1957, are not authorized to correct immigrant visas issued
  prior to that date.
(2) Alien's conviction in the Netherlands for receiving stolen property, although he was not present in court when the case was called, is not a con.
  viction in absentia when he had notice of the proceedings, appeared after
  the conclusion thereof, took no appeal, and paid the fine.
EXCLUDABLE: Act of 1952—Section 212(a) ( 9 ) [8 U.S.C, 1132(a) (9)]—Convicted of crimes involving moral turpitude, to wit: receiving
            stolen goods (two offenses).
         Act of 1952—Section 212(a) (19) [8 U.S.C. 1182(a) (19) ]—Has
                procured -visa by fraud or by willfully misrepresenting a ma -
            terial fact.
APPLICATION: Admission to the United States for permanent residence and
            waiver of excludability under sections 5 and 7 of 

the Act of September 11, 1957 (8 1182b and
            1251a).

                           BEFORE THE BOARD
   Discussion: The special inquiry officer on December 3, 1959, found
 the applicant excludable under the provisions of sections 212(a) (9)
 and (19) of the Immigration and Nationality Act (8 U.S.C. 1182(a)
 (9) and (19) ) as an alien convicted of crimes involving moral turpitude and as one who has procured a visa by willfully misrepresenting
a, material fact. Pursuant to the authority contained in sections
5 and 7 of the Act of September 11, 1957 (

), the
special inquiry officer waived the grounds of inadmissibility and
-ordered the applicant admitted to the United States for permanent
residence. The case is before us on certification for review of the
special inquiry officer's order of December 3, 1959.
 The applicant is a native and citizen of the Netherlands, male,
married, 62 years of age. He arrived at the port of New York on
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  May 10, 1954. He presented a valid Netherlands passport, No. D
  852114, issued December 15, 1953, and a quota immigrant visa issued
  by the United States Consul at Rotterdam, Netherlands, on February
  8, 1954 valid to June 7, 1954. The applicant was paroled pending
  determination of his admissibility.
     The applicant prior to entry was convicted on two occasions of
  offenses which may be designated "receiving stolen property" according to standards prevailing in the United States. The record establishes that he was convicted by a Netherlands court-martial on June
  24, 1947, of the crime of buying articles belonging to the Netherlands
  armed forces from members of said forces, knowing or reasonably
  suspecting such articles to have been obtained criminally, in violation
  of article 2 of the Decree Combatting Looting during Wartime. He
  was again convicted by the Police Judge of the District Court of
  Arnhem, Netherlands, on October 31, 1947, of the crime of concealment in violation of article 416 of the Netherlands Criminal Code.
  There is affirmative evidence that the applicant made formal application for an immigrant visa to the American Consul at Rotterdam,
 Netherlands, on December 16, 1953, and willfully concealed the aforestated convictions
     The Immigration Service urges that the applicant is ineligible for
 a waiver under sections 5 and 7 of the Act of September 11, 1957
  (

), because these provisions are available only to
 correct documents issued on or after September 11, 1957. The applicant's visa was issued prior to that date. Recent decisions by the
 Attorney General support the Service position (Matter of DeF—,
 A-10547426, Int. Dec. No. 978 (Atty. Gen., Feb. 26, 1959) , and Matter
 of DeG , et al., A-10641351, A-10847616, A-11404466, A-11067405,
 Int. Dec. No. 1036 (Atty. Gen., Dec. 14, 1959) ). Accordingly, we
 find the applicant ineligible for the waivers granted by the special
 inquiry, officer pursuant to the authority contained in sections 5 and 7
 of the Act of September 11, 1957 (

).
    Counsel in this proceeding attacks the sufficiency of the applicant's
 exclusion as a matter of law. He questions whether the applicant
 was convicted of offenses which involve moral turpitude. A review
 of the judgments of conviction entered as evidence in this record convinces us that the applicant was convicted on two occasions for receiving certain articles stolen from the armed forces of the Netherlands. Offenses of this nature involve moral turpitude (Matter of
Z—, 

 (B.I.A., July 6, 1956) ; Matter of

 (B.I.A., Oct. 27, 1955) ; Matter of G , 

 (B.I.A., Jan. 13, 1945) ).
    Counsel also attacks the legality of the applicant's convictions by
the Netherlands tribunals. Counsel argues that the statute defining
the offense of which the applicant was convicted on June 24, 1947,
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requires that it be committed "in time of war" and that it was subsequent to the termination of World War II that the applicant was
convicted. Counsel maintains that the applicant's second conviction
on October 31, 1947, is a nullity because he was convicted in absentia.
  We are not permitted to go behind the record of the judgment of
conviction to determine the applicant's guilt or innocence of the
offenses charged against him (United States ex rel. Robinson v. Day,

 (C.C.A. 2, 1931) ; United States ex rel. Mylius v. Uhl,

 (S.D.N.Y., 1913), aff'd 

). The record of
the October 1947 conviction shows that the applicant was not present
when his case was called in the District Court at Arnhem. He testified, however, that he had notice of the proceeding, appeared after
ti-e conclusion thereof, took no appeal and paid the fine. We agree
with the special inquiry officer that under these circumstances the
applicant was not convicted in absentia.
   The applicant is the spouse of an alien lawfully admitted for permanent residence. I-Es wife arrived at the port of New York on
September 14, 1959. She testified that she is wholly dependent on
the applicant for her support. We agree with the special inquiry
officer that there are mitigating factors present in the applicant's
case. However, we are aware of no provision of the immigration
laws which will permit an adjustment of the applicant's status except
a departure from the United States and obtaining a new visa pursuant to the waivers provided by sections 5 and 7 of the Act of September 11, 1957 (

). An order providing for the
applicant's exclusion will be entered.
   Order: It is ordered that the order entered by the special inquiry officer on•December 3, 1959, admitting the applicant pursuant
to waivers granted under sections 5 and 7 of the Act of September
11, 1957, be and the same is hereby withdrawn.
  It is further ordered that the applicant be excluded from the
United States under the provisions of sections 212(a) (9) and (19) of
the Immigration and Nationality Act in that he is an alien who has
been convicted of a crime involving moral turpitude and has procured a visa by willfully misrepresenting a material fact.




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