Interim Decision #2377. 

MATTER OF MARINO 

In Deportation Proceedings - 

A-19499635 

Decided by Board April 80, 1975 

Respondent was found deportable under the provisions of section 241(a)(2), of the Immigration and Nationality Act, as a nonimmigrant visitor who had remained longer than 

authorized. At a reopened hearing respondent's application for adjustment of status 

under section 245 of the Act was denied because he was excludable under section 

212(a)(9) of the Act, as one who had been convicted of a crime of moral turpitude. The 

appeal is dismissed. Respondent contended that his conviction in Italy of fraudulent 

destruction of his own property was (1) not a final conviction, as wheri he appealed the 

conviction, an Italian presidential decree of amnesty extinguished the crime, and (2) the 

conduct wee in any event a petty offense because the penalty assessed was only six 

months in jail. The foreign amnesty is ineffective to prevent deportation. In determining whether the conviction for the crime under Article 642 of the Italian Penal Code was 

a felony or misdemeanor, the equivalent United States crime most comparable is the 

crime described in District of Columbia Code, 22-02 which is a felony. Therefore, the 

petty offense acception to section 212(a)(9) of the Act is not available to respondent. 

CHARGE: 

Order: Act of :1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitori'emained longer. 

ON BEHALF OF, RESPONDENT: ON BEHALF OF' SERVICE: 

Mario M. De 0 Dtatis, Esquire Irving A. Appleman 

253 Broadway Appellate Trial Attorney 

New York, New York 10007 

This is an appeal from the January 30, 1973 decision of the immigration judge, made at a reopened hearing, in which he reaffirmed an 

earlier decision finding the respondent deportable, denied the respondent's application for adjustment of status on the ground that he was 

excludable under section 212(a)(9) of the Immigration and Nationality 

Act as a person who had been convicted of a crime involving moral 

turpitude, and regranted the privilege of voluntary departure. We 

agree with the immigration judge's excellent opinion; the appeal will be 

dismissed. _ _ 

The respondent, a native and citizen of Italy, has applied for adjustment of status on the basis of an approved fifth preference visa petition 

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filed on his behalf by his sister. Standing in the way are the following 

facts. On December 6, 1962 the respondent was convicted in Italy under 

Article 642, Italian Penal Code, of fraudulent destruction of his own 

property.' He was sentenced to six months in prison and a fine of 

100,000 lire, the equivalent of $160 at that time; the sentence was 

suspended for five years. He appealed the judgment on the day it was 

rendered. However, on March 8, 1963 the Italian court declared it 

"unnecessary to proceed. . . [with the appeal] by reason of the extinction of said crime following amnesty." (Exh. 7.) 

On appeal counsel contends that the conviction on the basis of which 

the respondent has been found ineligible for adjustment of status lacks 

the requisite finality, because a direct appeal from the conviction was 

pending when a presidential decree of amnesty extinguished the crime, 

cutting off the respondent's opportunity to vindicate himself on appeal. 

He states that the right to appeal a conviction is a basic right, and he 

cites several New York State cases and Will v. INS, 447 F.2d 529 (C.A. 

7, 1971). In Will the court held that as long as a direct appeal was 

pending from the alien's conviction, the alien had not been "convicted" 

with the requisite finality to support deportation. Counsel further asserts that even if there was a final conviction, the comparable crime in 

the United States is a misdemeanor classifiable as a petty offense and 

therefore an exception to section 212(a)(9) of the Act. 

It has often been held that a foreign amnesty or pardon is ineffective 

to prevent exclusion or deportation. U.S. ex rel. Palermo v. Smith, 17 

F.2d 534, 535 (C.A. 2,1927); Matter of Adamo, 10 L & N. Dec. 593 (BIA 

1964); Matter ofB—, 7 I. & N. Dec. 155 (BIA 1956); Matter of 9 I. 

& N. Dec. 132, 134 (BIA 1960); Matter of G—, 5 I. & N. Dec. 129 (BIA 

1953). Moreover, in Will v. INS, supra, the conviction, the finality of 

which was in issue, was the basis for the finding of deportability. The 

burden was on the Immigration and Naturalization Service to prove 

deportability by clear, convincing, and unequivocal evidence. Woodby v. 

INS, 385 U.S. 276 (1966). In the instant case, however, deportability is 

conceded. The question of the finality of the conviction has arisen in the 

context of an application for adjustment of status. An application for 

adjustment of status bears the burden of proving that he is eligible for 

such relief and that discretion should be exercised in his behalf. 8 CFR 

242.17(d); Cabrera v. INS, 415 F.2d 1096 (C.A. 9, 1969); Montemurro v. 

INS, 409 F.2d 832 (C.A. 9, 1969). The respondent's appeal is no longer 

pending. His conviction appears to us to be final; he has not proven to us 

that it was not. Furthermore, even if, as counsel contends, the Italian 

Whoever, for the purpose of gaining for himself or others the premium of an insurance 

against accidents, destroys, disperses, deteriorates or hides objects of his own property, 

is punished with prison of sir months to three years and with a fine up to 400,000 

lire. . . . (Exh. 9A translation.) 

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procedure of dismissing pending appeals upon the granting of amnesty 

deprives persons such as the respondent of rights that are considered 

basic in American law, there is no requirement that a foreign conviction 

must conform to rights guaranteed by statute in the United States. Cf. 

Matter of Gutierrez, 14 I. & N. Dec. 457 (BIA 1973); Matter of M—, 

supra. We agree with the immigration judge that the respondent's 

conviction was final for immigration purposes. 

Counsel maintains that in determining whether the crime in question 

was a felony or a misdemeanor, the immigration judge erred in his 

choice of an equivalent United States crime. The immigration judge 

found Article 642 of the Italian Penal Code to be most comparable with 

District of Columbia Code 22-402 (not 22-401, as counsel erroneously 

asserts), burning one's own property with intent to defraud or.injure 

another. 2Counsel compares the crime with the New York crime of 

reckless endangerment of property. 

To determhe whether a crime committed in a foreign country should 

be classified as a felony or a misdemeanor, the offense is examined in the 

light of the maximum punishment bnposable for an equivalent crime 

described in Title 18 of the United States Code or, if an equivalent 

offense is nut found there, Title 22 of the District of Columbia Code. 

Giammario v. Hurney, 311 F.2d 285 (C.A. 3, 1962); Matter of Grazley, 

14 L & N. Dec. 330 (BIA 1973); Matter of T—, 6 I. & N. Dec. 508, 517 

(A_G_ 1955). A misdemeanor is any offense other'than one punishable by 

death or by imprisonment for a term exceeding one year. 18 U.S.C. 

sections (1), (2). 

There is no crime equivalent to Article 642 in Title 18 of the United 

States Code. We agree with the immigration judge that section 22-402 

of the District of Columbia Code is the provision most nearly equivalent 

to the Italian statute under which the respondent was convicted. It is 

clearly a felony, carrying a maximum penalty of 15 years in prison. It 

differs from the Italian statute mainly in that (1) it covers destruction by 

fire only and not by any other means, while the Italian provision .does 

not mention the means of destruction; and (2) it makes no specific 

mention of insurance. However, there is nothing on the face of the 

statute to indicate that it would not be applied in a situation where the 

property was burned so that the perpetrator could collect the insurance. 

Since the resp Dndent was convicted of a crime involving moral turpitude 

which was a felony, the petty offense exception to section 212(a)(9) of 

the Act is not available to him. 

2 Whoever maliciously burns or sets fire to any dwelling, shop, barn, stable, store, or 

warehouse or other building, or any steamboat, vessel, canal boat, or other watercraft, or 

any goods, wares, or merchandise, the same being his own property, in whole or in part, 

with intent to def?aud or injure any other person, shall be imprisoned for not more than 

fifteen years. 

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We find counsel's other contentions to be without merit. 

For the foregoing reasons we find that the respondent has not sustained his burden to establish that he is eligible for adjustment of status 

under section 245 of the Act. Accordingly, we shall dismiss his appeal. 

ORDER: The appeal is dismissed. 

Further order: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily 

within such time and under such conditions as the district director may 

direct; and in the event of failure so to depart, the respondent shall be 

deported as provided in the immigration judge's order. 

Irving A. Appleman, Board Member, abstained from consideration of 

this case. 

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