Matter of Locicero

• Decision Date: 20 September 1966
• Docket Number: A-5746800,Interim Decision Number 1642
• Parties: MATTER OF LOCICERO In Section 246 Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

11 I&N Dec. 805

MATTER OF LOCICERO

In Section 246 Proceedings

Interim Decision Number 1642

A-5746800

Board of Immigration Appeals

Decided by Board September 20, 1966

Since dismissal of pertinent counts of indictment for income tax violation after commencement of criminal proceedings, on agreement of counsel, does not estop the Service from examining facts in rescission proceedings, to determine if respondent was a person of good moral character at the time of adjustment of his status under section 249 of the Immigration and Nationality Act, such adjustment of status is rescinded because respondent, who had fraudulently understated his income during 1958 and 1959 for the purpose of avoiding payment of a substantial sum in U.S. income taxes, was not a person of good moral character at the time he secured adjustment of status on November 17, 1960, and therefore, was not statutorily eligible for such relief.

This case is before us on appeal from a decision of a special inquiry officer dated October 22, 1965, rescinding the adjustment of status previously granted to the respondent under section 249 of the Immigration and Nationality Act [8 U.S.C. 1259].

The respondent is a 62-year-old married male who is a native and citizen of Italy. The special inquiry officer's findings (decision, pp. 1, 5-6, 61, 65-68, 72) are to the effect that the respondent entered the United States about April 12, 1923 as a stowaway aboard the SS "St. Joseph Philadelphia"; the he was granted adjustment of status on November 17, 1960 under section 249 of the Immigration and Nationality Act; that he willfully failed to file a United States income tax return for 1957 although required to do so; that he filed false and fraudulent United States income tax returns for 1958 and 1959 claiming taxable income of $2,408.20 and $4,827.70 respectively; that his taxable income for the years 1957, 1958 and 1959 was actually $9,293.65, $10,864.16 and $16,104.63 respectively; that the respondent was attempting to evade and defeat the payment of income tax; that the respondent violated 26 U.S.C. 7201 on or about April 15, 1958, April 15, 1959 and April 15, 1960; and that these violations precluded the respondent from possessing good moral character at the time adjustment of status was granted.

The sole issue is whether the special inquiry officer's action in rescinding the adjustment of status was correct. As stated in the last paragraph on page 5 of the "Notice" (Ex. 1) served on the respondent, it was asserted that he was not eligible for adjustment of status because he was not a person of good moral character. Although there was an allegation that the respondent failed to disclose his full arrest record in his application for adjustment of status, the principal basis for the assertion that the respondent was not a person of good moral character relates to the United States income tax delinquencies for the years 1957, 1958 and 1959.

We have carefully reviewed the entire record. The special inquiry officer has thoroughly discussed the evidence on which his findings were based, and we concur fully in his discussion and findings with the exception of the last two findings mentioned above and with the further exception that we will not make a definite determination as to whether there was a tax violation for the calendar year 1957. During the oral argument, the appellate trial attorney stated that it was unnecessary for the special inquiry officer to find that the respondent had violated 26 U.S.C. 7201, and we agree that this is correct. In other words, we concur in the special inquiry officer's various subordinate findings which resulted in his ultimate conclusion that the respondent had violated 26 U.S.C. 7201 but we can perceive no reason why the special inquiry officer or this Board should make a determination as to whether or not the respondent was guilty of violating a particular penal provision. The other finding of the special inquiry officer in which we do not concur is that the violations precluded the respondent from possessing good moral character. Instead, we hold that, by reason of the respondent's attempt to evade and his evasion of United States income taxes for the years 1958 and 1959, he was not a person of good moral character at the time his application under section 249 was granted.

We understand that counsel relies, not only on his contentions during the oral argument, but also on those stated in the brief submitted by former counsel. We have considered fully all of these contentions. Insofar as concerns contentions based on factual allegation 17 of Exhibit 1, we find it unnecessary to discuss these since the special inquiry officer held that the allegation was not sustained and we concur in that conclusion. With respect to a contention that the Service did not establish that adjustment of status under section 249 was necessary, it was the respondent himself who filed the application under that statutory provision, and Exhibit 8 shows the nonexistence of a record of the respondent's lawful admission in April 1922 or on April 12, 1923 on the SS "St. Joseph Philadelphia". During the oral argument (p. 8), counsel stated that the respondent has been in the United States for 42 years and that the Government is now seeking to deport him. Actually, the matter before us is solely whether the adjustment of status granted to the respondent should be rescinded. If a deportation proceeding should be instituted in the future, the respondent will have the opportunity of offering his defense to that action.

In the brief, it was stated that there was a denial of due process by reason of the introduction into evidence of the record of the respondent's conviction for violation of 26 U.S.C. 7201. This relates to the fourth count of the indictment (Ex. 5) which charged that on or about April 15, 1961 the respondent attempted to evade and defeat a large part of the income tax due for the calendar year of 1960 by stating his taxable income as $8,219.00 and tax as $1,736.94 whereas his taxable income was $32,782.87 and the tax due was $10,791.43. The respondent pleaded guilty to this charge on January 13, 1965. The contention is based on the fact that the offense was committed on or about April 15, 1961 which was subsequent to the date on which adjustment of status was granted—November 17, 1960. We believe it is clear from the special inquiry officer's decision that he did not consider this conviction as being evidence that the respondent was not a person of good moral character at the time adjustment of status was granted. Accordingly, this contention of counsel is dismissed.

Following the respondent's plea of guilty on January 13, 1965, sentence was imposed on February 17, 1965 and thereupon the first three counts of the indictment were dismissed on motion of the Assistant United States Attorney. Counsel states that the Government relied on the offenses mentioned in the first three counts in this rescission proceeding; that the dismissal of these counts constituted an acquittal of these charges; and that the Government is barred from using these three offenses under the doctrine of res judicata. We reject this contention on the authority of Helvering v. Mitchell, 303 U.S. 391, 397 (1938), in which there was an acquittal in a criminal prosecution. The court said that the doctrine of estoppel by judgment did not preclude the Government from recovering the 50 percent penalty for fraudulent intent to evade payment of income tax, and that the acquittal was merely an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.

Counsel seeks to avoid the clear ruling of Helvering v. Mitchell, supra, by contending that the burden of proof here is the same as in a criminal case, citing a decision of the Second Circuit on September 22,...