Interim Decision #3218

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) [8 U.S.C. § 125 l(a)(2)(A)(iiin

aggravated felony

—

—

Convicted of

Sec. 241(a)(2)(C) [8 U.S.C. § 1251(a)(2)(C)]—Convicted of firearms violation.

ON BEHALF OF SERVICE:

Wayne Kimball

General Attorney

ON BEHALF OF RESPONDENT:

Pro se

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, 8 U.S.C. § 1101(a)(43) (Supp. IV 1992); see generally

Matter ofA-A-, 20 I&N Dec. 492 (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, 385 U.S. 276 (1966); 8

C.F.R. § 242.14(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, 8 U.S.C. § 1182(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, 8 U.S.C.

§ 1254(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, Pub. L. No. 100-690, 102 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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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, 8 U.S.C.

§ 1251(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, 8 U.S.C. § 1101(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, 20 I&N Dec. 362 (BIA 1991). This provision

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

of 1990, Pub. L. No. 101-649, 104 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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SEC. 509. GOOD MORAL CHARACTER DEFINITION.

(a) IN GENERAL Section 101(0(8) (8 U.S.C. § 1101(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 Id. 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, Pub. L. No. 102-232, 105 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,

651 F.2d 420 (5th Cir. 1981); Ocon-Perez v. INS, 550 F.2d 1153 (9th

Cir. 1977). Immigration authorities must look to the judicial record

and may not go beyond it to determine guilt or innocence. LongoriaCastenada v. INS, 548 F.2d 233 (8th Cir.), cert. denied, 434 U.S. 853

(1977); Agurilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert.

denied, 423 U.S. 1050 (1976); see Matter of Danesh, 19 I&N Dec. 669

(BIA 1988); Matter of Khalik, 17 I&N Dec. 518 (BIA 1980); Matter of

Fortis, 14 I&N Dec. 576 (BIA 1974). Until a conviction is overturned,

it serves as an adequate basis for a deportation order. See Matter of C-,

8 I&N Dec. 611 (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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