Marino v. Immigration and Naturalization Service, U.S. Dept. of Justice

Decision Date24 June 1976
Docket NumberNo. 714,D,714
Citation537 F.2d 686
PartiesGiuseppe MARINO, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, UNITED STATES DEPARTMENT OF JUSTICE, Respondent. ocket 75--4171.
CourtU.S. Court of Appeals — Second Circuit

Thomas A. Church, New York City, for petitioner.

Mary P. Maguire, Sp. Asst. U.S. Atty., (Thomas J. Cahill, U.S. Atty., S.D.N.Y., Thomas H. Belote, Sp. Asst. U.S. Atty., New York City, of counsel), for respondent.

Before TIMBERS, Circuit Judge, and BRYAN and HOLDEN, District Judges. *

FREDERICK van PELT BRYAN, District Judge:

Giuseppe Marino, a native and citizen of Italy admitted to this country as a non-immigrant visitor, petitions for review of a final order of deportation of the Board of Immigration Appeals pursuant to section 106(a) of the Immigration and Nationality Act (the 'Act'), 8 U.S.C. § 1105a(a). The Board's order, entered on April 30, 1975 dismissed an appeal from a decision of an immigration judge which denied Marino's application under section 245 of the Act, 8 U.S.C. § 1255, for adjustment of status to that of an alien lawfully admitted to the United States for permanent residence, found him deportable as an overstay visitor under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2), and granted him the privilege of voluntary departure by a specified date. 1

Under section 245 of the Act, the status of an alien admitted to the United States as a non-immigrant visitor may be adjusted by the Attorney General, in his discretion, to that of an alien lawfully admitted for permanent residence. In order to be eligible for such relief, the alien must first be eligible to receive a visa and be admissible to the United States for permanent residence. An alien who has been convicted of a crime involving moral turpitude is generally ineligible to receive a visa and is excluded from admission under section 212(a)(9) of the Act, 8 U.S.C. § 1182(a)(9). He is thus ineligible for section 245 adjustment of status.

Marino was held ineligible for section 245 adjustment of status on the sole ground that he had been convicted of a crime involving moral turpitude in Italy prior to his entry into the United States.

In 1962, Marino was found guilty by a police magistrate in Ribera, Italy, of fraudulent destruction of his own property in violation of Article 642 of the Italian Penal Code. He appealed from the magistrate's decision to the Tribunal of Sciacca. Before his appeal was heard, however, the tribunal held that the crime ascribed to him had been extinguished by a presidential decree of amnesty issued subsequent to his conviction and deemed it unnecessary to proceed further in Marino's case for that reason. Thus, the merits of Marino's appeal were never heard or passed upon.

The question before us on this petition for review is whether, under these unusual circumstances, Marino has been convicted of a crime involving moral turpitude within the meaning of section 212(a)(9) of the Act, 8 U.S.C. § 1182(a)(9), and thus is excludable from admission to the United States and ineligible for adjustment of status under section 245.

I.

Marino is fifty years of age with a wife and children in Italy. He has three sisters who are citizens and residents of the United States, and another sister and a brother who reside here. On October 4, 1971 he was admitted to the United States as a non-immigrant visitor for pleasure, authorized to remain until November 3, 1971. 2 His temporary stay was extended until January 3, 1972. On February 14, 1972 the Immigration and Naturalization Service (INS) approved a visa petition filed by one of Marino's citizen sisters on his behalf which classified him as a fifth-preference alien for issuance of an immigrant visa. See section 203(a)(5) of the Act, 8 U.S.C. § 1153(a)(5).

Deportation proceedings were initiated against Marino by an order to show cause and notice of hearing dated May 22, 1972. At a hearing on May 31, 1972, Marino admitted his deportability as on overstay visitor, and was granted the privilege of voluntary departure under section 244(e) of the Act, 8 U.S.C. § 1254(e), with the proviso that if he failed to depart when and as required, he would be deported to Italy.

A July 11, 1972 motion by Marino to reopen the deportation proceedings in order to apply for adjustment of status pursuant to section 245 was granted on consent of the INS. On December 19, 1972, at a reopened hearing before an immigration judge, Marino's counsel presented his application for adjustment of status to that of an alien lawfully admitted for permanent residence. The only question raised was whether Marino was eligible for adjustment of status in view of his 1962 Italian conviction. Counsel for the INS represented that, under what he then considered the controlling authority of Matter of T--, 6 I. & N.Dec. 508 (1955), Marino's conviction was for a misdemeanor classifiable as a petty offense under section 212(a)(9) of the Act, 8 U.S.C. § 1182(a)(9), which did not make him ineligible for such status adjustment. The immigration judge, therefore, granted the application for adjustment of status but gave counsel for the INS

the option to reopen this hearing solely on notice, without permission from me, if something comes up with reference to this conviction which would lead him to believe (Marino) is not eligible for permanent resident status.

On January 30, 1973, the hearing was reopened on notice by counsel for the INS, in order to examine again the effort of the 1962 Italian conviction on Marino's eligibility for adjustment of status relief.

Certified copies and translations of (1) Article 642 of the Italian Penal Code, which Marino was charged with having violated; (2) the decision of the police magistrate of Ribera, finding him guilty; and (3) the declaration of the Tribunal of Sciacca that the crime had been extinguished by presidential amnesty and that further proceedings in his case were unnecessary for that reason, were received in evidence.

The decision of the police magistrate stated the charge against Marino and summarized the evidence. According to the decision, Marino, a tenant farmer, had reported to the police that fire and destroyed a farmhouse which he rented and a large number of beehives in the farmhouse which were his property, causing him damage covered by insurance. The magistrate found in substance that Marino had caused the fire and had greatly exaggerated (if not made up out of whole cloth) the number of beehives destroyed, for the purpose of obtaining the insurance money. The magistrate found Marino guilty of fraudulent destruction of his own property in violation of Article 642 of the Italian Penal Code. He imposed a sentence of six months' imprisonment and a fine of 100,000 lire (approximately $160), suspended execution of the sentence for five years, and directed that Marino's name be omitted from mention in certificates as to the contents of the judicial files of the court. Marino appealed his conviction to the Tribunal of Sciacca. 3

It appears from the declaration of the Tribunal of Sciacca in Marino's case that Presidential Decree of Amnesty of January 24th, 1963, No. 5 had been issued while his appeal was pending and undetermined. On March 8, 1963, on application of the Public Ministry, the appellate tribunal, without passing on the merits of Marino's appeal, found that the 'crime ascribed to (him was) included among those foreseen' in the decree of amnesty and was therefore 'extinguished'. The court declared it

unnecessary to proceed in the matter of the aforesaid accused for the above-mentioned crime, by reason of the extinction of said crime following amnesty.

Thus, Marino's appeal was left undetermined and he was unable to obtain appellate review of the decision of the police magistrate. 4

At the deportation hearing on January 30, 1973, Marino's counsel took the position that since Marino was completely deprived of his right to appeal from the Italian conviction against his will and intentions by the amnesty extinguishing the crime, the conviction was not of sufficient finality to render him 'convicted' of a crime within the meaning of section 212(a)(9), 8 U.S.C. § 1182(a)(9). He urged that Marino was not ineligible to receive a visa and excludable from admission to the United States under that section, and was therefore not ineligible for adjustment of status under section 245.

In support of this position, Marino's counsel offered to prove that Marino had made repeated efforts to prosecute his appeal from the 1962 judgment of conviction despite the amnesty, but had been barred from so doing by the declaration of the appellate tribunal that his crime had been extinguished by the amnesty and that it was thus unnecessary to proceed with the case further. Counsel for the INS conceded, on the record, that 'an appeal was taken and was desired by (Marino), but was cut short by the amnesty which was granted.'

Both the offer of proof by Marino's counsel and the concession by INS counsel with respect to Marino's desire and efforts to appeal were rejected by the immigration judge on the ground that any such proof would not 'be material in making a judgment in this application for adjustment of status.'

He also rejected the further contention that the crime for which Marino had been convicted was a misdemeanor classifiable as a petty offense which did not render Marino excludable from admission to the United States under section 212(a)(9) of the Act, 8 U.S.C. § 1182(a)(9), and thus ineligible for section 245 adjustment of status.

The immigration judge went on to hold that Marino had been convicted of a crime involving moral turpitude within the purview of section 212(a)(9) of the Act, 8 U.S.C. § 1182(a)(9); that he was therefore excludable from admission to the United States and ineligible for adjustment of status; and that his application for such relief was denied. Marino was found deportable as an...

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