HALLER

Interim Decision #1756

MATTER 05 'PTA TIMM

In Deportation Proceedings

A-10193857

Decided by Board July 10, 1987

(1) Notwithstanding respondent and his wife (whoa° marriage has never been

legally terminated) have been separated for about 7 years, statutory eligibility

for a waiver of the criminal grounds of excludability pursuant to section 212

(h), Immigration and Nationality Act, as amended, is established since bard-

ehlp to his wife and 2 U.S. citizen children would result from his deportation

as his wife is not, and has not been working for many years, depending on

respondent for the support of herself and their children and be has always,

except while serving sentence, supported them.

(2) Notwithstanding respondent 190111d, upon the petition or his wife, be eligible

for second preference classification and thereby exempt from the labor certifi-

cation requirement, since he can show visa availability only under the open

nonpreference portion of the quota, he is required to present a labor certifica-

tion and in the absence thereof or exemption from presentation thereof he is

excludable under section 212(a) (14) of the Act and, therefore, statutorily

ineligible for the benefits of section 245.

vagme !

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

involving moral turpitude committed after entry : is-

suing fraudulent check (New York 1962) ; using mails

to defraud, using interstate telephonic communication

to defraud, conspiracy to defraud 1963.

On Barters or REaP0101322: James J. Cally, Esquire

150 Broadway

New York, New York 10038

This is an appeal from the decision of the special inquiry officer

finding respondent deportable as charged, holding him to be statu-

torily ineligible for any form of relief, and ordering his deportation

to Australia, with the alternate designation of Germany.

Respondent is a 51-year-old married male alien, a native and citizen

of Germany. He last entered the United States on or about June 10,

1958 as a nonimmigrant visitor for business. He had been married in

Newark, New Jersey on December 23, 1951 to Maria Imelda Paprotna,

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Interim Decision #1756

who had been admitted to the United States for permanent residence

on October 10, 1951. Her petition for preference quota status for him

was approved and he became a lawful permanent resident under the

provisions of section 245 on March 5, 1951'. There are two children of

that marriage, Karl Haller, Jr., 15, and Imelda Gertrude Hailer, 13,

who are native born United States citizens.

On November 9, 1962, respondent, represented by counsel, was con-

victed on his plea of guilty in the County Court, County of West-

chester, New York, of "Issuing a fraudulent check as a misdemeanor."

The sentence was imprisonment for the amount of time he had already

spent in jail (which he stated was about 90 days), and he was ordered

to make restitution in the amount of $140, which he did. At the time

of sentencing, the judge made the following statement

It is the Courts interest in sentencing the defendant on this conviction that

pursuant to sea 1251(b) (2) of Title 8 11.8.C.A. that the defendant shall not be

deported pursuant to provision sec. 1251 (sub. a) (4) Title 8 U.S.C.A. The Court

hereby recommending to the Attorney General of the United States that this

Alien defendant not be deported. Accordingly the Court will give due notice

hereof to the representative in New York, of the U.S. Immigration Service and

the District Attorney of Westchester County. (Ex. 2)

There is no evidence that any notice was ever given to the Immigra-

tion and Naturalization Service, prior to the making of the recom-

mendation, that it was the judge's intention to make it, or even, once

it had been made, that the judge's direction for notice to the Service

was carried out. The effect of this omission will be discussed below.

Where, in a conviction for passing a worthless check, fraud is an

essential element of the crime, we have held that it is a crime involving

moral turpitude (cf. Matter of M.—, 9 I. & N. Dec. 743). In this case,

fraud was a basic characteristic of the offense and the crime is, there-

fore, one involving moral turpitude.

On November 18, 1958, a seven count indictment was filed against

respondent and his wife in the United States District Court, Southern

District of New York. The first four counts charged violation of

Title 18, U.S.C., section 1341, using the United States mails to de-

fraud; the fifth and sixth counts charged violation of Title 18, U.S.C.,

section 1343, using interstate telephonic communications to defraud;

the seventh count charged both defendants with conspiring to violate

sections 1341 and 1348. On November 7, 1963, respondent having

pleaded not guilty and having been found guilty, by a jury, of counts

1, 2, 5 and 7, he was sentenced to imprisonment for one year on each

count, the sentences to run concurrently. An appeal was taken to the

United States Court of Appeals for the Second Circuit which, on

July 7, 1964 affirmed the judgment of the lower court.

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In Jordan v. DeGeorge, 341 U.S. 223 (1951), the Supreme Court

held that: * * crimes in which fraud was an ingredient have al-

ways been regarded as involving moral turpitude • "". Using the

mails and interstate telephonic communications to defraud clearly

comes within the scope of the holding in Jordan v. DeGeorge, and the

conspiracy here charged likewise involves moral turpitude since the

substantive crimes which were the subject of the conspiracy involve

moral turpitude (cf. Matter of B—, 2 I. & N. Dec. 225).

Thus, respondent has twice been convicted of crimes involving moral

turpitude, and is deportable under the provisions of section 241(a) (4),

unless he can come within the provisions of section 241(b). Counsel

urges that the first conviction, in which the judge at the time of the

initial sentencing recommended that respondent not be deported, has

been extinguished for deportation purposes under section 241(b) (2)

because of that recommendation. Unfortunately, however, the judge,

although referring to the specific section and subsection of the law,

did not comply with the conditions set forth therein. These require

that the representatives of the interested State, the Service, and the

prosecution authorities must be given notice prior to the making of

such a recommendation and shall be granted an opportunity to make

representations in the matter. Here, the judge directed that notice be

given to them of the fait accompli, the recommendation already made

(and even this, apparently through clerical oversight, was not done).

While section 241(b) (2) is remedial in nature and should be inter-

preted to accomplish the purposes for which it was enacted, it must

also be exercised with respect for the safeguards enacted into it. In

a case in which the facts were substantially similar (Matter of I—,

6 I. & N. Dec. 426) , and the issue of law was identical, we held :

• • • it is clear from the statute that Congress intended that due notice

should be given to the State, the Service and to prosecution authorities and

that they were to have the opportunity of making representations before the

court made its decision as to whether to recommend that the alien be not de-

ported, It is our considered opinion that since the action of the court did not

comply with the mandatory provisions of section 241(b) of the Immigratior

and Nationality Act, the recommendation against deportation is ineffective.

The cases cited by counsel are not squarely in point and cannot over-

come our holding in Matter of I—.

Respondent applied for adjustment to lawful permanent resident

status under section 245, coupled with a request for a waiver under

section 212(h) of his excludability under section 212(a) (9) based on

his convictions. His present family situation, which is somewhat un-

usual, is an important factor in determining his eligibility for the

relief he seeks. Although his marriage has never been legally termi-

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noted, his wife and he have been separated for about seven years. He

has always, except for the time when he was serving his sentence,

supported his wife and children, and within approximately two months

of his release from prison in 1965, he was sending her $50 every week,

which he soon raised to $70 per week. However, he does not know

where his wife and children live. The money is mailed to his wife's

brother, who then turns the money over to the wife, and who has been

forbidden by her to tell respondent 'where she and the children are.

Although she is not working and has not been for many years, de-

pending on respondent for the support of herself and her children, she

is unwilling to associate herself in any way with respondent's attempt

to qualify for relief from deportation, or to take any steps to help him.

Several efforts by the Service to interview her were unsuccessful be-

cause of her failure to keep the appointments made. When contacted.

although admitting respondent's monetary assistance, she clearly

showed her desire not to be involved with him in any way, indicating

that the Government could deport him, for all she cared.

The special inquiry officer, in his evaluation of the family situa-

tion, held that respondent was statutorily eligible for a waiver of

excludability on criminal grounds, because deportation would un-

doubtedly result in hardship to his wife and children, and his admis-

sion would not be contrary to the national welfare, safety or security

of the United States. But it was unnecessary to rule on whether it

should be granted, in the exercise of discretion, because there was an-

other impediment to eligibility for adjustment which had not been

overcome. As the spouse of a lawful permanent resident alien, re-

spondent could be accorded second preference quota status upon the

petition of his wife, and as the beneficiary of such a preference peti-

tion, he would not come within the labor certification provisions of

section 212(a) (14). However, his wife has not filed such a petition

for him in connection with these proceedings, and has apparently not

indicated any willingness to do so. While respondent can show quota

availability without a preference, the nonpreference portion of the

quota for Germany presently being current, as a nonpreference ap-

plicant he comes within the provisions of section 212(a) (14). He

would be working in the United States, and would be required to

present a labor certification, or to establish that, under the various

rules and regulations governing this area (Title 29 CFR, section 60;

Title 8 CFR, section 204.1 et seq. ; section 212.8, etc.) , he is exempt

from the requirement because of the character of his proposed occupa-

tion. No labor certification has been presented or offered, nor has any

claim been advanced that respondent is exempt from the requirement.

On the record before us, the special inquiry officer correctly found

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respondent deportable as charged, and statutorily ineligible for ad-

justment of status under section 245. As to the alternative request for

voluntary departure, the special inquiry officer pointed out that

respondent is precluded from establishing good moral character under

section 101(f) (7) for any period which includes December 1964 to

October 1965, because his imprisonment during this time exceeded

180 days.

In summary, respondent has twice been convicted of crimes involv-

ing moral turpitude and is deportable under section 241(a) (4) in spite

of the recommendation against deportation made' y the judge at the

time of the first conviction, because the recommendation did not com-

ply with the mandatory conditions in section 241(b) (2) and hence

was ineffective. Respondent is statutorily eligible under section 212(h)

for a waiver of excludability arising from his two convictions, and

can show quota availability, but because that quota availability stems

not from a preference petition by his wife but from an open non-

preference quota, he is subject to the labor certification provisions of

section 212(a) (14) and he has made no showing that he has, or can

obtain, or is otherwise exempt from the necessity for, a labor certifica-

tion. He is, therefore, upon the present record, excludable under the

provisions of section 212(a) (14) and statutorily ineligible for adjust-

ment of status under section 245. He is precluded from establishing

good moral character for the past five years by section 101(f) (7) be-

cause during that period he has been imprisoned for 180 days or more,

and, is, therefore, statutorily ineligible for voluntary departure. He

has properly been found deportable and ordered deported.

It is urged on appeal that respondent was improperly deprived of

his right to counsel. A reading of the record does not support this con-

tention. Respondent, at the first session of the hearing (the only one of

the three at which he was not represented), was clearly advised of his

right to counsel. While it appeared that he did wish to be represented,

he wanted this only if the special inquiry officer could guarantee to

him that he would not be detained by the Service during the period

of the adjournment to obtain counsel. The special inquiry officer advised

respondent that the question of detention or release was not within

his province and again offered to adjourn the proceedings if respondent

wished to seek counsel. Respondent was uncertain and there was an

off-the-record discussion with the special inquiry officer during which

respondent was advised, in answer to his inquiries , as to the possible

outcome of the hearing and his right to appeal. The special inquiry

officer then asked respondent whether he had decided to proceed with-

out counsel and respondent said that he had. There is no evidence what-

ever of counsel's claim that respondent "was advised, that if he didn't

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have his hearing, he would be incarcerated until the hearing was had

on his matter with Immigration." (Brief on Appeal, top of p. 3) . There

is no evidence of duress or of anything other than a knowing, inten-

tional and voluntary waiver of counsel by respondent. A reading of

the portion of the hearing that was conducted without counsel does

not show any procedure which could in any way be characterized as

depriving respondent of his rights.

Under the present circumstances and on the record before us, no valid

reason has been advanced that would justify a reversal or modification

of the special inquiry officer's decision.

ORDER : It is ordered that the appeal be and the same is hereby

dismissed.

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