MAI ILIt OF 

In EXCLUSION Proceedings 

A-10067176 

Decided by Board March 11, 1960 

Waiver of excludability—Nune pro tune exercise of sections 5 and 7, Act of 

September 11, 1957, not authorized to correct documents issued prior to that 

date—Conviction in absentia. 

(1) Nuns pro tunc waivers of inadmissibility under sections 5 and 7 of Act 

of September 11, 1957, are not authorized to correct immigrant visas issued 

prior to that date. 

(2) Alien's conviction in the Netherlands for receiving stolen property, although he was not present in court when the case was called, is not a con. 

viction in absentia when he had notice of the proceedings, appeared after 

the conclusion thereof, took no appeal, and paid the fine. 

EXCLUDABLE: Act of 1952—Section 212(a) ( 9 ) [8 U.S.C, 1132(a) (9)]—Convicted of crimes involving moral turpitude, to wit: receiving 

stolen goods (two offenses). 

Act of 1952—Section 212(a) (19) [8 U.S.C. 1182(a) (19) ]—Has 

procured -visa by fraud or by willfully misrepresenting a ma - 

terial fact. 

APPLICATION: Admission to the United States for permanent residence and 

waiver of excludability under sections 5 and 7 of Public Law 

85-316, the Act of September 11, 1957 (8 1182b and 

1251a). 

BEFORE THE BOARD 

Discussion: The special inquiry officer on December 3, 1959, found 

the applicant excludable under the provisions of sections 212(a) (9) 

and (19) of the Immigration and Nationality Act (8 U.S.C. 1182(a) 

(9) and (19) ) as an alien convicted of crimes involving moral turpitude and as one who has procured a visa by willfully misrepresenting 

a, material fact. Pursuant to the authority contained in sections 

5 and 7 of the Act of September 11, 1957 (Public Law 85-316), the 

special inquiry officer waived the grounds of inadmissibility and 

-ordered the applicant admitted to the United States for permanent 

residence. The case is before us on certification for review of the 

special inquiry officer's order of December 3, 1959. 

The applicant is a native and citizen of the Netherlands, male, 

married, 62 years of age. He arrived at the port of New York on 

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May 10, 1954. He presented a valid Netherlands passport, No. D 

852114, issued December 15, 1953, and a quota immigrant visa issued 

by the United States Consul at Rotterdam, Netherlands, on February 

8, 1954 valid to June 7, 1954. The applicant was paroled pending 

determination of his admissibility. 

The applicant prior to entry was convicted on two occasions of 

offenses which may be designated "receiving stolen property" according to standards prevailing in the United States. The record establishes that he was convicted by a Netherlands court-martial on June 

24, 1947, of the crime of buying articles belonging to the Netherlands 

armed forces from members of said forces, knowing or reasonably 

suspecting such articles to have been obtained criminally, in violation 

of article 2 of the Decree Combatting Looting during Wartime. He 

was again convicted by the Police Judge of the District Court of 

Arnhem, Netherlands, on October 31, 1947, of the crime of concealment in violation of article 416 of the Netherlands Criminal Code. 

There is affirmative evidence that the applicant made formal application for an immigrant visa to the American Consul at Rotterdam, 

Netherlands, on December 16, 1953, and willfully concealed the aforestated convictions 

The Immigration Service urges that the applicant is ineligible for 

a waiver under sections 5 and 7 of the Act of September 11, 1957 

(Public Law 85-316), because these provisions are available only to 

correct documents issued on or after September 11, 1957. The applicant's visa was issued prior to that date. Recent decisions by the 

Attorney General support the Service position (Matter of DeF—, 

A-10547426, Int. Dec. No. 978 (Atty. Gen., Feb. 26, 1959) , and Matter 

of DeG , et al., A-10641351, A-10847616, A-11404466, A-11067405, 

Int. Dec. No. 1036 (Atty. Gen., Dec. 14, 1959) ). Accordingly, we 

find the applicant ineligible for the waivers granted by the special 

inquiry, officer pursuant to the authority contained in sections 5 and 7 

of the Act of September 11, 1957 (Public Law 85-316). 

Counsel in this proceeding attacks the sufficiency of the applicant's 

exclusion as a matter of law. He questions whether the applicant 

was convicted of offenses which involve moral turpitude. A review 

of the judgments of conviction entered as evidence in this record convinces us that the applicant was convicted on two occasions for receiving certain articles stolen from the armed forces of the Netherlands. Offenses of this nature involve moral turpitude (Matter of 

Z—, 7 I. & N. Dec. 253 (B.I.A., July 6, 1956) ; Matter of 

6 I. & N. Dec. 772 (B.I.A., Oct. 27, 1955) ; Matter of G , 2 I. & N. 

Dec. 235 (B.I.A., Jan. 13, 1945) ). 

Counsel also attacks the legality of the applicant's convictions by 

the Netherlands tribunals. Counsel argues that the statute defining 

the offense of which the applicant was convicted on June 24, 1947, 

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requires that it be committed "in time of war" and that it was subsequent to the termination of World War II that the applicant was 

convicted. Counsel maintains that the applicant's second conviction 

on October 31, 1947, is a nullity because he was convicted in absentia. 

We are not permitted to go behind the record of the judgment of 

conviction to determine the applicant's guilt or innocence of the 

offenses charged against him (United States ex rel. Robinson v. Day, 

51 F.2d 1022 (C.C.A. 2, 1931) ; United States ex rel. Mylius v. Uhl, 

203 Fed. 152 (S.D.N.Y., 1913), aff'd 210 Fed. 869). The record of 

the October 1947 conviction shows that the applicant was not present 

when his case was called in the District Court at Arnhem. He testified, however, that he had notice of the proceeding, appeared after 

ti-e conclusion thereof, took no appeal and paid the fine. We agree 

with the special inquiry officer that under these circumstances the 

applicant was not convicted in absentia. 

The applicant is the spouse of an alien lawfully admitted for permanent residence. I-Es wife arrived at the port of New York on 

September 14, 1959. She testified that she is wholly dependent on 

the applicant for her support. We agree with the special inquiry 

officer that there are mitigating factors present in the applicant's 

case. However, we are aware of no provision of the immigration 

laws which will permit an adjustment of the applicant's status except 

a departure from the United States and obtaining a new visa pursuant to the waivers provided by sections 5 and 7 of the Act of September 11, 1957 (Public Law 85-316). An order providing for the 

applicant's exclusion will be entered. 

Order: It is ordered that the order entered by the special inquiry officer on•December 3, 1959, admitting the applicant pursuant 

to waivers granted under sections 5 and 7 of the Act of September 

11, 1957, be and the same is hereby withdrawn. 

It is further ordered that the applicant be excluded from the 

United States under the provisions of sections 212(a) (9) and (19) of 

the Immigration and Nationality Act in that he is an alien who has 

been convicted of a crime involving moral turpitude and has procured a visa by willfully misrepresenting a material fact. 

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