Interim Decision #1658 

MATTER or NEELY AND WuTLTE 

In Deportation Proceedings 

A-17429494 

A-17129199 

Decided by Board October 27,1966 

A nonimmigrant visitor for pleasure is deportable under section 241(a) (9) 

of the Immigration and Nationality. Act since her commission and conviction 

of the crime of stealing, even though not incarcerated as a result thereof, 

constitutes a violation of her nonimmigrant status. Waiter of C—, 9 I. & N. 

Dec. 100, distinguished.] 

CHARGE: 

Order: Act of 1952--Section 241(a) (9) (8 U.S.C. 1251(a) (9)1—Failed to 

comply with conditions of nonimmigrant status. 

The Government appeals from a decision of the special inquiry 

officer, finding neither of the respondents deportable as charged, and 

terminating proceedings as to both. 

Respondent Neely is a 34-year-old married female alien, whose 

husband is a lawful permanent resident of the United States. She 

was admitted to the United States es a B-2 visitor for pleasure on 

September 11, 1966. Respondent Whylie is a 35-year-old divorced 

female al!en, who was admitted to the United States as a B-2 visitor 

for pleasure on September 4, 1966. Both respondents are natives of 

Nassau, in the Bahamas, and citizens of Great Britain. Both were 

admitted to the United States for a period to expire on October 30, 

1966. 

On October 3, 1966, both respondents were arrested in the city of 

Miami, Florida, upon the charge that each: 

"did then and there steal, take and carry away [specified items of specified 

value], said items then and there being the goods and chattels of Crandway 

Discount Center, against the peace and dignity of the City of Miami, Florida, 

and in violation of Section 811.021, FLORIDA STATUTES, and Chapter 43, 

Section 38 of the Code." (Ess. 3 and 4) 

On October 5, 1966, each respondent was convicted in the Municipal 

Court of the City of Miami, on her plea of guilty, and sentenced to 

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pay a fine of $50, or in lieu thereof to serve 20 days in jail. Both 

respondents paid the fine. 

The special inquiry officer, citing Matter of C—, 9 L N. Dec. 

100, stated the applicable law to be that conviction of an offense or 

crime, regardless of whether it involves moral turpitude, does not 

constitute a violation of nonimmigrant status if it does not result in 

actual incarceration of the alien. 

We believe this is too broad a reading of the decision in Matter 

of C—. That case involved a bona fide student who was charged 

with enticing an adult person for lewd and immoral purposes. It 

was his first offense. The original charge was nollo pressed and n. 

charge of disorderly conduct (sex) was substituted. The alien, in 

effect, pleaded guilty by forfeiting his $100 collateral, and was 

placed on probation. During the period of proceedings and probation, he continued his studies without interruption, and was not suspended or expelled by the school. We found, further, that he had 

not accepted employment, or in any other way "failed to abide by 

all the terms and conditions of his admission or extension" as a 

student. The conviction, without more, did not prevent or interfere 

with the alien's pursuit of his studies, the basic purpose for which 

he had been admitted. We did hot them, nor do we now, condone 

the conduct which resulted in the criminal proceedings. 

We believe, however, that there is a qualitative difference between 

the situation of the student in Matter of '0—, and the visitors for 

pleasure in Mate,. of A. —, 6 I. & N. Dee. 762 (convicted of "jostling" 

and *Bed for 30 days) and the two cases presently before us. The 

bona fide student, on the one hand, has been admitted for and is 

working toward a definite goal, at an accredited school, college or 

university. The purpose of his stay is not necessarily vitiated by a 

conviction for illegal activity where the same does not result in his 

suspension of expulsion from school, or the interruption of his 

studies. The visitor for pleasure, on the other hand, is admitted for 

no fixed or specific purpose, but merely for his own pleasure. The 

termination of the student's stay may deprive him of all opportunity 

to complete his education. The termination of the visitor's stay is 

merely the shortening of a pleasure trip. 

In the absence of a definition, by statute or regulations, of acts 

which constitute a violation of nonimmigrant status, each case must 

be looked into on its own facts, and the decision arrived at should 

strike a fair balance between the character of the act committed and 

the consequences which will flow from it. While this absence of incarceration and attendant interruption of studies is a significant 

factor in determining whether a bona fide student has violated his 

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status, it does not carry the same weight in the case of a visitor for 

pleasure. The presence of the incarceration factor has led us to hold 

that visitor for pleasure status has been violated, Matter of A—, 

supra. The scommission of a crime or offense involving moral turpitude, by a visitor for pleasure, even where sentence is suspended, and 

incarceration does not result, is, we believe, violative of the visitor's 

status, and we so hold here. The respondents were both within a 

month of their entry conviction of an offense amounting to petty 

larceny, which does involve moral turpitude (Tillinghast v. Edmead, 

31 F.2d 81; 1Vilson v. Carr, 41 F.2d '704; Pine, v. Nicholls, 215 F.2d 

23T; Quilodran -Brau v. Holland, 232 F. 183; etc.). 

We, therefore, sustain the Government's appeal, and find the respondents deportable as charged. 

Inasmuch as the special inquiry officer terminated proceedings 

upon a finding that respondents were not deportable, there was no 

discussion of their eligibility for voluntary departure. Section 

244(e) requires that a person establish five years of good moral 

character, immediately preceding the application, to be eligible for 

voluntary departure. In view of respondents' recent conviction of a 

crime or offense involving moral turpitude, they cannot establish 

good moral character for the required period (section 101(f) (3)) 

and hence are statutorily ineligible for that relief. They designated 

Nassau, in the Bahamas, as the country of deportation, and deportation will accordingly be directed to Nassau. 

ORDER: It is ordered that the appeal be find the same is hereby 

sustained. 

It is further ordered that the respondents be deported from the 

'United States to Nassau, Bahamas, on the charges contained in the 

orders to show cause. 

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