MASCORRO-PERALES

Interim Decision 40731

MATTER OF MASCORRO-PERALES

In Deportation Proceedings

A-10720396

Decided by Board May 15,1967

An unconditional nunc pro dune waiver under section 212(g) [now section 212

00], Immigration and Nationality ACt, as amended. of Lhe ground of exclud

ability based on respondent's 1959 conviction of theft, granted in 1961 at a

time when he stood convicted of only one offense did not preclude the subse-

quent use of such crime to establish deportability under section 241 (a) (4)

of the Act based on conviction of two crimes involving moral turpitude when

respondent thereafter was convicted in 1965 of a second offense involving

moral turpitude.

th/AEGEI:

Order: Act of 1952—Section 241(a) (4) [8 U.S.C. 1251 (a ) (4)]—Convicted of

two crimes after entry, to wit, theft under $50, and

child molesting.

ON BEHALF OF SERVWE: R A. Vielhaber

Appellate Trial Attorney

(Oral argument)

Stephen hi. Sufiln

Trial Attorney

(Brief submitted)

The Government appeals from a decision by the special inquiry

officer, finding respondent not deportable as charged and terminating

proceedings.

Respondent is a 28-year-old male alien, native and citizen of Mexico,

a widower and the father of five United States born children. He was

lawfully admitted to the United States for permanent residence at

El Paso, Texas on or about June 22, 1959. On September 29, 1959,

he was convicted of the offense of theft under $50, in the County Court

at Law No. 2, El Paso County, Texas and sentenced to 90 days in

the County Jail. This conviction, although for a crime involving moral

turpitude and committed within three months after entry, did not

render respondent deportable under section 241(a) (4) because he was

not sentenced to confinement for a. year or more.

From the time of respondent's admission until sometime in 1962, he

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Interim Decision #1734

lived in El Paso and made many one-day trips across the border to

Juarez, Mexico. The Government concedes that these trips come within

the holding in Rosenberg v. Fleuti, 374 U.S. 449, and that respondent

lid not make an entry on each return. However, in May 1962, prior to

the Fleuti decision (June 17, 1963) , respondent was made the subject

of deportation proceedings, charged with being deportable for having

been excludable at the time of his last entry in June 1901 as one con-

victed of a crime involving moral turpitude (section 212(a) (9) ).

This was based on the 1959 theft conviction. That crime, under the

Texas statute, has been held not to be classifiable as a petty offense be-

cause the maximum sentence that may be imposed is imprisonment for

up to two years (Matter of H—, 6 I. & N. Dec. 435).

At the deportation hearing, respondent applied for a 171111.6 pro berm

waiver of excludability under section 212(g) (now section 212(h) ).

The special inquiry officer found that the required extreme hardship to

respondent's citizen wife (who died in 1965) and his several citizen

children would be present if respondent were deported, and granted

the waiver in the exercise of discretion. The record shows that the

special inquiry officer, in granting the waiver, did not provide for rev-

ocation if a subsequent crime were committed, a condition usually

attached to this and similar waivers (c.f. Matter of P—, 10 I. & N. Dec.

1; Matter of P—, 7 1. & N. Dec. 713 ; Matter of C—A—,7 1. & N. Dec.

274, etc.).

On August 2, 1965, respondent was convicted in the Superior Court

of the State of California, County of Los Angeles, of the felony defined

in section 288 of the Penal Code of California (Crimes Against Chil-

dren: Lewd and Lascivious Acts) , and was sentenced to the term pre-

scribed by law, which he is presently serving at San Quention. (It

has been determined that this is a crime involving moral turpitude,

Matter of V , 7 I. & N. Dec. 242.)

—

The second conviction, plus the 1959 conviction, form the basis of

the charge under section 241(a) (4) . From the record, it does not appear

that respondent has ever been convicted of any other crime or crimes in-

volving moral turpitude. The-special inquiry. officer terminated the de-

portation proceedings upon the following rationale:

It has been held that once a waiver of a ground of excludability based upon a

criminal conviction is granted, deportation proceedings cannot thereafter be pro-

perly instituted using the same criminal conviction, unless the previous grant

of relief has been revoked. Matter of G A , 7 1. & N. Dee. 274, and Matter of

— —

T , 10 I. & N. Dec. 1. The crime of theft under $ao cannot, therefore, be utilized

—

to support tile charge in the present proceedings. *. • •

We do not consider the cited cases to be proper or sufficient author-

ity for the sedan taken by the special inquiry officer. In neither was the

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fact situation nor the legal issue the same as in the case before us. Matter.

of G—A—, supra, concerned a long-time resident convicted of a single

narcotics violation who, five years later, left the United States briefly

and was readmitted without incident, and then, three or four years

after his return, was made the subject of deportation proceedings upon

the ground that he had been excludable at the time of that return. He

applied, for a mow pro tune waiver of excludability under section

212(c). The special inquiry officer denied relief and ordered the alien

deported, on the ground that although the requested waiver would

make the alien's reentry legal, he would still be subject to deportation

under section 241(a) (11) for the same conviction. We stated in that

case :

We believe that if 8 U.S C. 118.2(c) is exercised to waive a ground or inadmis-

sibility based upon a criminal conviction, a deportation proceeding cannot there-

afer be properly based upon the same criminal conviction unless, of course, the

Attorney General has revoked the previous grant of relief. Since we agree with

the special inquiry officer that the respondent's case is meritorious, we perceive no

reason why the authority in 8 U.S.O. 1182 (c) should not be exercised and, when

relief has been granted in accordance with the authorization of Congress, it would

be clearly repugnant to say that the respondent remains deportable because of

the same conviction. * * •

We granted the waiver, subject to the condition that it might be re-

voked in the discretion of the Attorney General if the alien thereafter

committed any crime. Our holding there was no more than an imple-

mentation of the waiver provision, necessary to make it an effective.

remedy. We ruled merely that if a single act can be the basis of both

excludability and deportability, and excludability is waived by the

Attorney General, then that act, without more, cannot be the basis of

a deportation charge. We did not enunciate any ruling as to what sig-

nifinance the initial conviction would have if the alien were convicted'

of a second crime after the grant of the waiver.

Matter of T—, supra, dealt with a woman admitted for permanent

residence in 1944, who went to Mexico for a day in 1957, and was made.

the subject of deportation proceedings as one who had been excludable-

on her return, for conduct engaged in prior to the initial admission as:

an immigrant in 1944. Deportation proceedings were terminated upon•

the granting to her of a nurse pro tune"waiver of inadmissibility, under

the provisions of section 5 of the Act of September 11, 1957, the said'

waiver being subject to revocation in the discretion of the Attorney

General if the alien should thereafter commit any offense. The alien,

without having committed any other offense, returned to Mexico for

a visit and prior to her return to the United States applied for a new

waiver of the same ground of excludability. The application was

denied as being unnecessary, and certified to the Assistant Commis-

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Interim Decision #1784

•sioner of the Immigration and Naturalization Service, Examinations

Division, who held:

To require an alien who has been granted a waiver under section 5. 6 or 7

•of the act to reapply on each re-entry after a temporary absence would constitute

an undue burden, curtail the beneficial effects of this remedial legislation, and

unduly hamper travel. It is concluded, therefore, that during such time as the

order granting the waiver remains unrevoked, it be regarded as In full force

and effect as to any subsequent entries if no new grounds for excludability have

arisen, and the alien is complying with the conditions under which the waiver

was granted. * * *

Neither a subsequent offense nor a deportation proceeding was in-

volved, the issue being solely one of whether a new waiver for the same

ground of excludability had to be applied for in connection with each

entry subsequent to the granting of the original wai ver.

The position of the Government on appeal is essentially correct.

Respondent was granted a waiver of excludability on the basis of a

single conviction for crime involving moral turpitude , and that waiver

has been honored. By the waiver, his 1961 return to the United States

was legalized, and he was placed in the same situation as if he had not

left the country. He was not deportable for having been excludable,

and not deportable on the basis of the conviction itself. However, re-

spondent has now become deportable because of his own act, because of

his commission (and conviction of) a second crime involving moral

turpitude. He is not deportable for having committed the original

crime, but for having been convicted of two crimes, both involving

moral turpitude.

We find nothing in either the statute . or its legislative history to in-

dicate that it was the intent of Congress, by providing such a. waiver,

to wipe the underlying crime from the records for immigration pur-

poses (as is done by section 241(b) where there is an executive pardon

or judicial recommendation against deportation) , and to place the

recipient of administrative grace in a status permitting his greater

immunity for a subsequent crime than an alien who committed the

same number and type of crimes but did not leave the country between

convictions. Rather, from the manner in which such waivers and their

predecessor provisions have been administered, and from the wording

of the section here involved, it appears the waiver was intended to be

one conditioned upon the good behavior of the alien, one which might

be revoked if any subsequent crime or offense was committed. It is

possible that the failure of the special inquiry officer to attach such a

condition in 1962 was an oversight. Had there been a condition, and

revocation, there would be no question that the first conviction could

be used on this charge. However, even without a revocation, for the

reasons set out above, we find that the waiver under section 212(g)

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Interim Decision #1734

granted the alien in 1959 did not protect him from a future charge of

deportability, based on conviction of two crimes involving moral tur-

pitude, when he was convicted of an additional crime.

The decision of the special inquiry officer will be set aside and an

order entered finding respondent deportable as charged.

ORDER: It is ordered that the decision of the special inquiry

officer terminating these proceedings be and the same is hereby set

aside.

It is further ordered that the respondent be deported from the

United States to Mexico, on the ground contained in the order to show

cause.

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