Matter of Balao
| Decision Date | 26 March 1992 |
| Docket Number | A-19679883.,Interim Decision Number 3167 |
| Citation | 20 I&N Dec. 440 |
| Parties | MATTER OF BALAO. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent has appealed from the June 19, 1991, decision of an immigration judge finding him deportable as charged and ordering him deported to the Philippines. The appeal will be sustained in part and dismissed in part.
The respondent is a native and citizen of the Philippines, who last entered the United States on November 29, 1970, as the spouse of an exchange visitor. On April 27, 1988, he was convicted in the Court of Common Pleas, Allegheny County, Pennsylvania, on three counts of passing bad checks, in violation of title 18, section 4105(a)(1) of the Pennsylvania Consolidated Statutes. The respondent was sentenced to 2 years' probation for this crime. On August 17, 1988, the respondent was convicted by the same court of theft by failure to make required disposition of funds received, in violation of title 18, section 3917(a) of the Pennsylvania Consolidated Statutes. The respondent was sentenced to 3 1/2 to 7 years' imprisonment for this crime.
On December 14, 1988, the Immigration and Naturalization Service issued an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) charging the respondent with deportability under section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4) (1988), as an alien who, after entry, had been convicted of two crimes involving moral turpitude, not arising out of a "single scheme of criminal misconduct." The Order to Show Cause alleged further that the respondent had been admitted as the spouse of a nonimmigrant exchange visitor with authorization to remain until January 14, 1972. Finally, it was asserted that the respondent had been granted indefinite voluntary departure on January 21, 1972, as the beneficiary of an approved third-preference visa petition filed on behalf of his spouse. At deportation proceedings commenced on February 13, 1991, the Service lodged an additional ground of deportability against the respondent pursuant to section 241(a)(1)(C) of the Act, 8 U.S.C. § 1251(a)(1)(C) (Supp. II 1990), alleging that he was also deportable as a nonimmigrant who failed to maintain the conditions of his status by remaining in the United States beyond the period of his authorized stay.
At his deportation hearing, the respondent, who elected to proceed without representation, admitted the allegations contained in the Order to Show Cause regarding the terms of his admission and his convictions. However, he denied his deportability under section 241(a)(4) of the Act, contending that all of his convictions arose out a "single scheme," namely, the financial downfall of his tobacco and cigarette distributing company. The respondent maintained that his bank froze his company account and did not honor three checks he had drawn on the account because he was unable to repay a previously obtained bank loan. He testified further that his conviction for failure to make required disposition of funds resulted from his receipt of $190,000 from various individuals in an attempt to refinance his faltering business. The respondent maintained that all of his convictions arose from financial problems which began when one of his major customers went into bankruptcy, leaving his business without available cash. Since all of his convictions arose out of the same problem, the respondent argued that he was not deportable under section 241(a)(4) of the Act for crimes "not arising out of a single scheme of criminal misconduct."
Further, the respondent alleged that he was not deportable as an overstayed nonimmigrant under section 241(a)(1)(C) of the Act because he had been granted indefinite voluntary departure and authorization to work by the Government until such time as a visa became available to him. He indicated that it was his understanding that he was legally in the United States awaiting "permanent residency for a priority date."
At the conclusion of the hearing, the immigration judge determined that the respondent was deportable as charged under section 241(a)(4) of the Act. Noting that he was without authority to go behind the record of conviction, the immigration judge found that the respondent's bad check conviction indicated the adjudicating court's finding of an element of deceit. He concluded further that these crimes and the respondent's conviction for theft by failure to make required disposition of funds received did not arise out of a single scheme of misconduct despite the respondent's claim that they all arose out of the failure of his business.
The immigration judge also found the respondent deportable as an overstayed nonimmigrant. In reaching this conclusion, he noted that the grant of indefinite voluntary departure to the respondent was only an acquiescence by the Service of his presence in the United States. According to the immigration judge, while the Government may not have intended to enforce an order of deportation against an alien who was granted indefinite voluntary departure, such a grant did not preclude the entry of an order of deportation against that alien. The immigration judge determined that since the respondent's nonimmigrant status expired on January 14, 1972, he was no longer in a valid nonimmigrant status and was therefore subject to deportation. Finally, the immigration judge determined that the respondent was not eligible for any form of relief from deportation due to his convictions. In this regard, he noted that the respondent did not appear to qualify for a waiver of his crimes, despite the existence of his United States citizen children, based on the apparent changes in the provisions of section 212(h) of the Act, 8 U.S.C. § 1182(h) (Supp. II 1990), under section 601(d)(4) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5076-77.
On appeal, the respondent, now represented by counsel, reiterates his claim that the Service has failed to establish his deportability under section 241(a)(4) of the Act. Initially, the respondent asserts that none of his convictions is for a crime involving moral turpitude. In particular, the respondent argues that his August 1988 conviction for theft by failure to make required disposition of funds received does not involve moral turpitude. The respondent also contends that the Service has failed to establish that his crimes did not arise out of a "single scheme of misconduct" so as to render him deportable pursuant to section 241(a)(4) of the Act.
Further, the respondent urges that he is not deportable under section 241(a)(1)(C) of the Act since he was granted indefinite voluntary departure on January 21, 1972, and the district director never revoked that grant prior to the commencement of the present deportation proceedings. Citing Immigration and Naturalization Service Operations Instructions 242.10 (1972),1 the respondent asserts that from July 1956 to July 31, 1972, a nonimmigrant present in the United States who was subject to deportation was eligible for extended voluntary departure if he was the beneficiary of an approved third-preference visa petition. He maintains that an alien granted such extended voluntary departure was permitted to remain in the United States indefinitely until an immigrant visa became available to him. Finally, the respondent argues that the immigration judge erroneously dissuaded him from applying for a section 212(h) waiver. He contends that he is statutorily eligible for such relief despite the revision of section 212(h) by the Immigration Act of 1990, 104 Stat. at 5076-77. Further, he asserts that he is the parent of several United States citizen children, one of whom is 21 years old.
Upon a review of the record before us and the statute under which the respondent was convicted, we find that the decision of the immigration judge with regard to the respondent's deportability under section 241(a)(4) of the Act is in error.
Section 241(a)(4) of the Act provides for the deportation of an alien who "at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial." As a primary matter, therefore, we must determine whether the respondent's crimes involve moral turpitude. We conclude that the convictions for passing bad checks are not for crimes involving moral turpitude.
We have held that where a law governing the issuance of worthless checks, by its express terms, involves an intent to defraud, a conviction for a violation of that law constitutes a conviction for a crime involving moral turpitude for immigration purposes. See Matter of Khalik, 17 I&N Dec. 518 (BIA 1980) (Michigan); Matter of Logan, 17 I&N Dec. 367 (BIA 1980) (Arkansas); Matter of Westman, 17 I&N Dec. 50 (BIA 1979) (Washington); Matter of McLean, 12 I&N Dec. 551 (BIA 1967) (California and Colorado). However, the Pennsylvania statute at issue here does not expressly require intent to defraud as an element of the crime. 18 Pa. Cons. Stat. § 4105(a)(1) (1987). The...
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