Interim Decision #2884 

MATTER OF RAMIREZ-RIVERO 

In Exclusion Proceedings 

A-23224918 

Decided by Board October 5,1981 

(1) In order for a foreign conviction to serve as a basis for a finding of inadmissibility, the 

conviction must be for conduct deemed criminal by United States standaids. 

(2) An act of juvenile delinquency is not a crime in the United States and an adjudication 

of delinquency is not a conviction for a crime within the meaning of the Immigration 

and Nationality Act. 

(3) The standards established by Congress, as embodied in the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. 5031 et seq.. as amended by the Juvenile Justice and 

Delinquency Prevention Act of 1574, Pub. L. 93-415, 88 Star- 1133 (effective September 7, 

1974), govern whether a foreign offense is to be considered a delinquency or a crime 

by United States standards. 

(4) The FJDA defines a "juvenile" as "a person who has not attained his eighteenth 

birthday,. or for the purpose of proceedings and disposition under this chapter for en 

alleged act of juvenile delinquency, a person who has not attained his twenty-first 

birthday," and "juvenile delinquency" as "the violation of a law of the United States 

conunitted•y a person prior to his eighteenth birthday which would have been a crime 

if committed by an adult." 18 U.S.C. 

(5) Pursuant to section 5032 of the FJDA, 18 U.S.C. 5032, any juvenile within the jurisdiction of the federal courts alleged to have committed an act of juvenile delinquency 

while under 16 years of age is not subject to criminal prosecution as an adult, regardless 

of the nature of the offense or the potential punishment, but rather is entitled to benefit 

from the protective and rehabilitative provisions of the FJDA unless he waives his right, 

in writing upon advice of counsel, to such treatment. 

(6) Inasmuch as the Board will not presume that a juvenile would opt to forego his right 

to be proceeded against as a delinquent in favor of criminal prosecution, the applicant's 

breaking and entering theft committed when he was 13 years of age, though treated as a 

crime inCuba, may not as a matter of law be deemed criminal by United States standards 

and therefore is not an excludable offense under section 212(a)(9) of the Immigration 

and Nationality Act, 8 U.S.C. 1182(a)(9). 

EXCLUDABLE: 

Order: Act of 1952—Sec. 212(aX9) [8 U.S. C. 1182(a)(9)1 Convicted of a crime involving 

moral turpitude 

Sec. 212(a)(20) [8 U.S.C. 1182(a)(20))—Inunigrant not in possession 

of valid unexpired visa or other valid entry document 

ON BEHALF OF APPLICANT: Richard Berley, Esquire 

600 First Avenue 

Seattle, Washington 98104 

BY: Milhollan, Chairman; Maniatis, Maguire, Morris, and Vacca, Board Members 

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Interim Decision #2884 

This case is before us on appeal from a decision of an immigration 

judge dated October 21, 1980, which found the applicant excludable, 

denied his requests for asylum and relief under section 243(h) of the 

Immigration and Nationality Act, 8 U.S.C. 1253(h),,' and ordered him 

excluded and deported from the United States. The appeal will be 

dismissed. 

The applicant is a 21-year-old native and citizen of Cuba who arrived 

in this country by' boat at Key West, Florida, in June 1980, as part of the 

Cuban "Freedom Flotilla." He was paroled into the United States for 

deferred inspection. Shortly after his arrival in this country, the applicant made certain admissions on the basis of which he was given notice 

of his possible excludability under section 212(a)(9) of the Act, 8 U.S.C. 

1182(a)(9), as an alien who has been convicted of a crime involving moral 

turpitude, and under section 212(a)(20) of the Act, 8 U.S.C. 1182(a)(20), 

as an immigrant without a valid visa or other entry document. His 

parole status was subsequently terminated and he was placed in these 

exclusion proceedings. 

At his exclusion hearing, the applicant testified tliat he came to thin 

country for the purpose of residing here permanently but conceded that 

he lacks the requisite documentation. The applicant further testified 

that he had been convicted in Cuba for entering an unoccupied private 

home and stealing some arms, a large quantity of clothing, and some 

combs, having entered the house during the daytime by pushing open a 

door.2He explained that he had stolen the arms not to use as weapons 

but to sell; he insisted that he stole solely to provide necessities for 

himself and his family. The applicant was 13 years old at the time of the 

offense. He had served 6 or 7 years of a 20-year prison sentence imposed 

puisuant to his conviction for that offense when released for the purpose 

of joining the Cuban boat life 

At the conclusion of the hearing, the immigration judge determined 

that the applicant is excludable under section 212(a)(20) of the Act. We 

agree. Mettler of Castellon, 17 I&N Dec. 616 (BIA 1981). However, 

the immigration judge determined that the applicant is not inadmissible 

under section 212(a)(9) of the Act, notwithstanding a specific finding 

that he was convicted as an adult of a crime under Cuban law, concludrThe applicant applied for asylum. The regulations, however, provide that asylum 

requests made in exclusion or deportation proceedings "shall also he considered as requests 

for withholding exclusion or deportation pursuant to section 243 Ch) of the Act." 8 C.F.R. 

208.3(3). 

2The applicant also admitted to one previous theft, committed when he was 12 years of 

age,,for which he was not apprehended. 

2While the applicant's initial testimony with respect to the length of his sentence is 

somewhat ambiguous, he appears to have ultimately conceded that he was sentenced to 20 

years (Tr. pp. 27-28). In any event, the length of sentence imposed by the Cuban court is 

immaterial in light of our legal conclusions in the case. 

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Interim Decision #2884 

ing that the applicant's age at the time of his offense precludes a finding 

that the offense involved moral turpitude. We likewise conclude that the 

applicant is not excludable by reason of his conviction record under ' 

section 212(a)(9) of the Act, but our rationale differs from that of the 

immigration judge: we find that the applicant's offense is not a crime 

within the contemplation of the Immigration and Nationality Act and 

accordingly, do not reach the'question of whether or not the offense was 

turpitudinous in nature. 

In order for a foreign conviction to serve as a basis for a finding of 

inadmissibility, the conviction must be for conduct which is deemed 

criminal by United States standards. Matter of McNaughtort, 16 I&N 

Dec. 569 (BIA 1978). It is settled that an act of juvenile delinquericy is 

not a crime in the United States and that an adjudication of delinquency 

is not a conviction for a crime within the meaning of our immigration 

laws. See discussion in Hu nu-Leung v. Soscia, 500 F.Supp. 1382 

(E.D.N.Y. 1980), and the cases cited therein; Matter of OW-, 2 I&N 

Dec. 319 (BIA 1945; A.G. 1945); Matter of F-, 2 I&N Dec. 517 (C.O. 

1946; BIA. 1946); Matter of A-, 3 I&N Dec. 368 (BIA 1948); Matter of 

C-M-, 5 I&N Dec. 327 (BIA 1953). 

Congress manifested its view as to conduct constituting acts ofjuvenile delinquency with the enactment of the FederalJuvenile Delinquency 

Act (hereinafter, the FJDA). 4Considering Congress' plenary power to 

legislate with respect to the classes of aliens that may be admitted to the 

United States and the correlative desirability of a rule which provides 

national uniformity in the administration of a federal statute such as the 

Immigration and Nationality Act, we believe it appropriate to look to 

the standards fashioned by Congress, embodied in the FJDA, to determine whether a given act is to be considered a delinquency or a crime.by 

United States standards. 

The FJDA defines a "juvenile" as "a person who has not attained his 

eighteenth birthday, or for the purpose of proceedings and disposition 

under this chapter for an alleged act of juvenile delinquency, a person 

who has not attained his twenty-first birthday," and "juvenile delinquency" as "the violation of a law of the United States committed by a 

person prior to his eighteenth birthday which would have been a crime if 

committed by an adult." 18 U.S.C. 5031. 5Pursuant to section 5032 of 

the Act, 18 U.S.C. 5032, any juvenile within the jurisdiction' of the 

federal courts' alleged to have committed an act of juvenile delinquency 

While under 16 years of age is not subject to criminal prosecution as an 

18 U.S.C. 5031 et seq., as amended by the Juvenile Justice and Delinquency Prevention Act of 1974. Pub. L. 93-415. 58 Scat_ 11:13 (PrfPctivA September 7, 1974). 

6 Under the predecessor to the present section 5031, in force when the applicant committed his offense, "juvenile delinquency" was defined to exclude acts committed by a juve137 
Interim Decision #2884 

adult. Rather, he is entitled to benefit from the protective and rehabilitive 

provisions of the FJDA unless he waives his right, in writing upon 

advice of counsel, to ouch treatment. ? 

A juvenile whose alleged offense is perpetrated between his sixteenth 

and eighteenth birthday is likewise proceeded against as a juvenile 

delinquent unless he is charged with committing an act which, if committed by an adult, would be a felony punishable by a maximum penalty of 

10 years imprisonment or more, life imprisonment or death. Under 

those circumstances, criminal proceedings may be instituted if a federal 

district court determines, after hearing on a motion to transfer for 

criminal prosecution brought by the Attorney General, that such transfer would be in the interest of justice. 18 U.S.C. 5032. 

As noted earlier, the applicant was 13 years of age at the time of his 

offense. ,Under Congressionally mandated procedures governing the 

treatment of juveniles, the Government may not proceed criminally 

against any person within the jurisdiction of the federal courts whose 

alleged offense was committed while under 16 years of age, regardless 

of the nature of the offense or the potential punishment, unless on 

counsel's advice the youth requests prosecution as an adult. 18 -U.S.C. 

5032. We will not presume that a juvenile would opt to forego his right 

to be proceeded against as a delinquent in favor of criminal pros ecution_ 

We thus conclude that the applicant's transgression, whether or not 

nile that were punishable by death or life imprisonment. The applicant's offense dearly 

was not of such gravity and we consequently need not consider at this time what result 

would be reached had that exception applied in this case. Cf. United States v. Mechem, 

509 F.2d 1193 (10 Cir. 1975); United States v. Azevetio, 394 F.Supp. 852 (D. Hawaii 1975). 

An appropriate federal district court may proceed in a case upon certification by the 

Attorney General that the juvenile court or other appropriate court of a state either lacks 

or refuses to assume jurisdiction or does not have available programs and services adequate for the needs of juveniles; absent such certification, the juvenile is to be surrendered to state legal authorities. 

7Those protections, which effectively remove juveniles from the 'regular criminal justice 

system and provide a separate system of treatment for them, include: proieeding against 

the juvenile by information rather than by indictment, thus avoiding the stigma of a 

criminal conviction (section 5032, FJDA); providing for representation by counsel at every 

critical stage of the proceedings (section 6032); providing for trial within 30 days from the 

date of detention in the case of a detained alleged delinquent (section 5030); allowing 

considerable flexibility with respect to the disposition of an adjudicated delinquent (section 

5037); confining the juvenile, when confinement is deemed necessary (section 5034), in a 

facility, separate from the adult criminal population, offering treatment and rehabilitative 

services (sections 5035 and 5039); limiting the term of confinement to which an adjudicated 

delinquent may be committed to his twenty-first birthday or the maximum term which 

could have been imposed on an adult for the same offense, whichever is the lesser period, 

or, in the ease of a juvenile who has reached his nineteenth birthday at the time of 

disposition, to the lesser of 2 years or the maximum sentenrp which could have been 

imposed on an adult (section 5037); and safeguarding the record of proceedings from 

disclosure by prohibiting its release except under specified circumstances (section 5038). 

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Interim Decision #2884 

treated as a crime in Cuba, may not as a matter of law be deemed 

criminal by United States standards and consequently is not an excludable offense. Matter of McNaughton, supra. A finding of inadmissibility 

under section 212(a)(9) of the Act may not be sustained. 

Prior to the exclusion hearing, the applicant's request for asylum was 

denied by the District Director who, after consultation with the Department of State, found the applicant barred by his criminal record from 

establishing eligibility for the relief sought.' The applicant availed himself of his regulatory right to renew his application before the immigration judge at the hearing. 8 C.F.R. 208.9. Finding that the applicant 

was not precluded by the commission of a serious nonpolitical crime 

from qualifying for asylum or section 243(h) relief, the immigration 

judge nonetheless denied his application for failure to establish his 

persecution claim.. The immigration judge's decision is correct. 

An applicant far asylum or withholding of deportation must show 

that, if deported, his life or freedom would be threatened on account of 

his race, religion, nationality, membership in a particular social group, 

ur political opinion. 8 C.F.R. 208.5; 8 C.F.R. 286.3(4(2). See generally 

Matter of McMullen, 17 I&N Dec. 542 (BIA 1980). To meet his burden 

of proof, the applicant must demonstrate a clear probability that he will 

be so persecuted if returned to his country. Matter of McMullen, id. 

The applicant has not sustained his burden. He has failed to make, let 

alone substantiate; any specific factual allegations tending to establish 

that he will be singled out for persecution if deported to Cuba. As the 

applicant is inadmissible and ineligible for,the relief he seeks, his appeal 

must be dimissed. 

ORDER: The appeal is dismissed. 

8The statute and the regulations provide that an alien may not obtain a grant of asylum 

or withholding of deportation under section 243(h) of the Act, despite a valid persecution 

claim, where it is determined that "there are serious reasons for considering that the alien 

has committed a serious nonpolitical crime outside the United States prior to the arrival of 

the alien in the United States." Section 24:3(h1(2)(C) of the Act_ R U.S.0 1 25:1(10(21(C:): 

C.R.F. 208.8(f)(1)(v). See also Matter of Rallester-Gareia. 171&N Dec. 592 (BIA 1980); 

Matter of Rodriguez-Patina, 17 1&N Dec. 465 (BIA 1980). 

139