Matter of Gantus-Bobadilla, Interim Decision Number 2102
| Decision Date | 05 November 1971 |
| Docket Number | Interim Decision Number 2102,A-19380474 |
| Citation | 13 I&N Dec. 777 |
| Parties | MATTER OF GANTUS-BOBADILLA In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The special inquiry officer, in his decision dated January 25, 1971, found the respondent deportable under the charge set forth in the order to show cause and denied him the privilege of voluntary departure. The respondent does not appeal the finding of deportability, but challenges only the denial of the privilege of voluntary departure. The appeal will be sustained and the respondent will be granted the privilege of voluntary departure.
The record relates to a 23-year-old married male alien, a native and citizen of the Dominican Republic. He entered the United States on or about June 3, 1967 as a temporary visitor authorized to remain until June 30, 1967, but remained longer. We agree with the special inquiry officer that deportability has been established by evidence that is clear, convincing and unequivocal.
Section 244(e) of the Immigration and Nationality Act states that the Attorney General may, in his discretion, permit any alien under deportation proceedings (with certain exceptions not relevant to this case) "to depart voluntarily from the United States at his own expense in lieu of deportation if such alien shall establish to the satisfaction of the Attorney General that he is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure."
The only evidence in the administrative record which might reflect unfavorably upon the respondent's good moral character is a record of his conviction in the Supreme Court of New York, Bronx County, on October 16, 1970, upon a plea of guilty, to the crime of manslaughter in the second degree. This was evidently under section 125.15(1), Penal Laws of New York, which provides that a person who recklessly causes the death of another is guilty of manslaughter in the second degree. The respondent was sentenced to probation for five years.
The special inquiry officer held that the offense does not involve moral turpitude. We agree, inasmuch as we have held that a predecessor to section 125.15(1) did not involve moral turpitude, Matter of E----, 2 I. & N. Dec. 134 (BIA, 1944; A.G., 1944), at page 141. See Mongiovi v. Karnuth, 30 F.2d 825 (W.D. N.Y., 1929). Since moral turpitude is not present, the respondent does not come within the purview of section 101(f)(3) of the Act, which bars a finding of good moral character on the part of aliens described in section 212(a)(9) of the Act, i.e., those who have been convicted of a crime involving moral turpitude.
The special inquiry officer held that since the respondent was on probation, and for that reason alone, he was ineligible for voluntary departure, on the theory that a person so restricted is not able to establish good moral character. The special inquiry officer, reluctantly, as he said, denied voluntary departure.
The issue on this appeal, then, is whether the respondent is, as a matter of law, precluded from a finding that he is a person of good moral character merely because he is on probation.
Prior to the enactment of the Immigration and Nationality Act of 1952, there was no statutory definition of, or limitation on a finding of, good moral character. The determination was made on the facts of each case, based upon the alien's conduct during the period prescribed by statute. The standard applied was that of the average person in the community. A single lapse did not necessarily bar a finding of good moral character, nor did conviction of a crime not involving moral turpitude, Matter of T----, 1 I. & N Dec. 158 (BIA, 1941); Matter of B----, 1 I. & N. Dec. 611 (BIA, 1943).
Although we are aware of no case concerning the question whether good moral character can be found during a period of probation, there are decisions dealing with good moral character while on parole. The cases are not in agreement.
For example, the court in In re McNeil, 14 F. Supp. 394 (N.D. Cal., 1936), a naturalization case, accepted the Government's position that "good moral character contemplated by the naturalization law can only be established by an applicant for citizenship during such period as the applicant is a free moral agent with the same liberties and the same limitations which are the common lot of other residents." However, the same court in a later case permitted a finding of good moral character in the case of an alien who had been convicted of a felony, placed on probation, and whose probation...
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