Matter of Fernandez, Interim Decision Number 2123

• Decision Date: 17 January 1972
• Docket Number: Interim Decision Number 2123,A-13311155
• Citation: 14 I&N Dec. 24
• Parties: MATTER OF FERNANDEZ In Exclusion Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

14 I&N Dec. 24

MATTER OF FERNANDEZ

In Exclusion Proceedings

Interim Decision Number 2123

A-13311155

Board of Immigration Appeals.

Decided by Board January 17, 1972.

(1) Conviction of the offense of transporting forged securities in interstate commerce in violation of 18 U.S.C. 2314 is conviction of a crime involving moral turpitude.

(2) A three-year sentence to imprisonment on each of two counts of an offense, with the sentences to run concurrently, does not constitute "aggregate sentences to confinement actually imposed" of "five years or more" within the meaning of section 212(a)(10) of the Immigration and Nationality Act.

(3) A special inquiry officer's refusal to entertain a section 212(h) application for a waiver of excludability because the applicant was still in prison, was not improper.

EXCLUDABLE: Act of 1952 — Section 212(a)(9) [8 U.S.C. 1182(a)(9)] — Convicted of crime involving moral turpitude.

Act of 1952 — Section 212(a)(10) [8 U.S.C. 1182(a)(10)] — Convicted of two or more offenses for which the aggregate sentences to confinement actually imposed were five years or more.

ON BEHALF OF APPLICANT: Pro se.

The applicant is a 35-year-old married male, a native and citizen of Cuba. He was admitted for permanent residence in 1957. In 1962 he participated in the Bay of Pigs invasion. He married a United States citizen in 1966. In 1969 he went to Mexico. The Mexican authorities deported him to the United States on November 9, 1969. He was paroled into the United States at that time. In an order dated May 4, 1971, the special inquiry officer found the applicant excludable as charged. From that order the applicant appeals. The appeal will be dismissed.

The file indicates that the applicant has the following criminal record. On December 13, 1965 he was convicted in California for issuing various checks with the intention to defraud, a violation of section 476a, Penal Code of California, for which offense he received a suspended sentence to 90 days imprisonment. On June 5, 1968 he was convicted in California of the offense of operating a motor vehicle without the owner's consent, a violation of section 10851, Vehicle Code of California, for which he again received a suspended sentence to 90 days imprisonment. On April 1, 1970 he was convicted in the United States District Court for the Southern District of Florida on two counts of transporting forged securities in violation of 18 U.S.C. 2314. For this he was sentenced to three years imprisonment on each count, with the sentences to run concurrently.

We shall decide this appeal solely with reference to the federal conviction referred to above. We agree with the special inquiry officer that the offense of transporting forged and fraudulent securities in interstate commerce is a crime involving moral turpitude. As regards the applicant's first two convictions, we find it unnecessary to make any holding with respect to whether they involve moral turpitude. In any event, the record before us is deficient...