Matter of Marchena

• Citation: 12 I&N Dec. 355
• Decision Date: 15 August 1967
• Docket Number: Interim Decision Number 1767,A-12500020.
• Parties: MATTER OF MARCHENA. In Adjustment of Status Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

12 I&N Dec. 355

MATTER OF MARCHENA.

In Adjustment of Status Proceedings.

Interim Decision Number 1767

A-12500020.

Board of Immigration Appeals.

Decided by Regional Commissioner August 15, 1967.

Where an alien's conviction under the second clause of 18 U.S.C. 1001 may have been for making a false statement, it cannot be assumed that her plea of guilty concerned a fraudulent statement; therefore, the crime cannot be held to involve moral turpitude. Notwithstanding, her application for adjustment of status to that of a lawful permanent resident pursuant to the provisions of section 1 of the Act of November 2, 1966, is denied, as a matter of discretion, where she remains on probation as a result of that conviction.

This matter is before the Regional Commissioner for review on certification of the decision of the District Director denying the application.

The applicant is a 31-year-old native and citizen of Cuba. She last arrived in the United States at Miami, Florida on October 17, 1961 when she was paroled indefinitely under section 212(d)(5) of the Immigration and Nationality Act. On February 23, 1967, she applied for permanent resident status as a Cuban refugee under the Act of November 2, 1966 which provides, in part:

* * * That, notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act, the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least two years, may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence ...

The District Director found the applicant is inadmissible under section 212(a)(9) of the Act as an alien who has been convicted of a crime involving moral turpitude by reason of her conviction on January 31, 1966 in the United States District Court for violation of section 1001, Title 18, U.S.Code. This section includes three distinct offenses, namely: (1) the offense of falsifying, concealing, or covering up by any trick, scheme, or device, a material fact; or (2) the making of any false, fictitious, or fraudulent statements or representations; or (3) the making or using of "any false writing or document. . ."

The applicant was convicted upon her plea of guilty to count three of the indictment which reads as follows:

That on or about January 7, 1963, in Dade County, in the Southern District of Florida, the defendants,

                          RODOLFO MARCHENA and
                          CARMEN HERNANDEZ a/k/a CARMEN MARCHENA
                

in a matter within the jurisdiction of a department of the United States, to wit, the Department of Health, Education and Welfare, did knowingly and wilfully make and cause to be made a false, fictitious and fraudulent statement and representation of a material fact, that is to say: In a statement entitled "Declaration of Resources" made and signed by the defendants and presented to an employee of the Public Welfare Department of the State of Florida, which theretofore by law had been designated to administer the United States Cuban Refugee Assistance Program, the defendants stated they were receiving only $14.00 to $20.00 a week, which statement was false, for in truth and in fact, as the defendants well knew, the defendant RODODLFO MARCHENA was working full time and receiving a salary as an employee of Riverside Laundry in Dade County, Florida; in violation of Title 18, United States Code, section 1001.

This count does not allege the use of any trick,...