Interim Decision #1728 

Marna or TuscorrE 

In Deportation Proceedings 

A-17432869 

Decided by Board April 27 ,1967 

Notwithstanding respondents single conviction of a crime does not in itself constitute a ground of deportation nor bar her under section 101(f) (3) of the 

Immigration and Nationality Act from a showing of good moral character 

for the purpose of establishing statutory eligibility for voluntary departure, 

such conduct can nevertheless be considered under the last sentence of section 

101(f) of the Act in making a determination of good moral character and 

respondent can be found ineligible for voluntary departure as a matter of 

administrative discretion. 

CHARGES : 

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

Remained longer. 

Lodged: Act of 1952—Section 241(a) (9) [8 U.S.C. 1251(a) (9))—Noninualgrant—Failed to comply with conditions of status. 

ON BEHALF OF. RESPONDENT: ON BEHALF OF SERVICE : 

Walter B. Lebowitz, Esquire Irving A. konleman 

706 First Street Appellate Trial Attorney 

Miami Beach, Florida 33139 

The special inquiry officer, in the decision appealed from, found 

respondent deportable on the lodged charge only, and granted voluntary departure in the exercise of discretion. The Service contends that 

the basis on which the special inquiry officer granted discretionary relief was erroneous as a matter of law, and that it was an improper 

exercise of discretion to grant voluntary departure to this respondent. 

Respondent is a 23-year-old single female alien, a native and citizen 

of Canada, who last entered the United States at Champlain, New 

York on or about February 12, 1967. Although she originally stated 

that she had been admitted for one month and had overstayed that 

period, at the hearing she insisted that she had been mistaken in her 

earlier statement, that she had been admitted for two months, and that 

she had not exceeded her stay at. he time proceedings were instituted. 

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The Government offered no evidence on this point other than respondent's initial statement, which she disclaimed as incorrect. The special 

inquiry officer properly found that this charge of deportability had 

not been sustained. 

On March 81, 1967 in the Municipal Court for the City of Miami 

Beach, Dade County, Florida, the respondent was charged as follows: 

CODE 25-88 CHARGE) PROSTITUTION: On March 31, 1967: Did then and 

there offer to commit or to engage in prostitution, lewdness, or assignation, which 

is recognized by the laws of this State as a misdemeanor, TO WIT: F.8.8.798.07 

(8) (A). 

After trial, at which she pleaded not guilty and was represented by 

counsel, she was found guilty as charged, sentenced to pay a fine of 

$150 and to 80 days in the City Jail, and sentence was suspended. The 

special inquiry officer, referring to the Board's decision in Matter of 

Neely, Int. Dec. No. 1658, held that on the basis thereof he found respondent subject to deportation on the lodged charge. The special inquiry officer stated the Board's holding in the Neely case to be : 

"that conviction alone of any municipal ordinance is sufficient to warrant the 

finding that a person violated the conditions under which he or she was admitted to this country." (Decision, p. S.) 

While the result arrived at by the special inquiry officer is correct, 

his characterization of Neely is not. In that case, involving two persons, each admitted as a visitor for pleasure, each convicted within a 

month of entry of shoplifting in Miami, Florida, and each sentenced 

to a fine but not incarcerated, we found there had been failure to 

comply with the conditions of nonimmigrant status. We held: 

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 the absence of incarceration and attendant interruption of studies is a 

significant factor in determining whether a bona fide student has violated his 

status, It does not carry the same weight in the ease 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 commission 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. * * * 

I Counsel urges that conviction of violation of a municipal ordinance is not 

conviction of a crime involving moral turpitude_ In Matter of 4 I. & N. 

Dee. 401, we held that conviction of violation of an ordinance of the City of 

Seattle, Washington relating to prostitution and defined in terms almost identical with the wording of the statute referred to here, was conviction of a crime 

or misdemeanor -involving moral turpitude, within the meaning of the immigration laws. 

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In deciding whether respondent could establish statutory eligibility 

for the discretionary relief of voluntary departure, the special inquiry 

officer cited Matter of M—, 7 I. & N. Dec. 147, as holding that where 

there is only one crime, and that a petty offense, this is insufficient as 

-a matter of law to make a finding of lack of good moral character. 

Our holding in Matter of M— was that such a conviction, within the 

period for which good moral character must be shown, did not compel a finding that one was precluded from establishing good moral 

character by section 101 (f ) (3). 

Neither Matter of M—, nor Matter of H—, 6 I. & N. Dec. 738, also 

-cited by the special inquiry officer (holding that the petty offense 

exemption must be granted automatically and not as a matter of discretion to a person who comes within its provisions), are authority 

for a finding that where there has been a conviction of a crime involving moral turpitude which is only a petty offense, so that the alien is 

not thereby precluded from establishing good moral character under 

section' 101(f) (3), there must be a finding that the alien is of good 

moral character. The statute specifically provides that the fact that a 

person is not within any of the enumerated categories of section 101 

(f) shall not preclude a finding that for other reasons such person 

is or was not of good moral character (last sentence of section 101 (1) ). 

We have held that where specific conduct does not preclude a finding 

of good moral character under the enumerated categories of section 

101(f), that same conduct may nevertheless be considered in making 

a determination on good moral character in accordance with the last 

sentence of section 101(f), Matter of L—D—E—, 8 I. & N. Dec. 399. 

The respondent, in any application where it is a necessary element of 

eligibility, has the burden of establishing good moral character 

(Brownell v. Cohen, 250 F.2d 770; Estrada-Ojeda v. Del Guereio, 

252 F.2d 904), and this is not necessarily borne by a showing that a 

particular act in violation of the law does not preclude a showing of 

good moral character. 

It is the special inquiry officer's further contention that there is no 

basis for denial of the voluntary departure application as a discretionary matter, except the conviction, and the conviction may not be 

used for that purpose because the petty offense exemption applies not 

only to issues of law, but to issues of discretion. The granting of discretionary relief is not an automatic act conditioned solely upon a 

showing of statutory eligibility. It is a privilege and a matter of grace, 

accorded to a person where that person has established that he is 

worthy of it. 

In the instant case, the special inquiry officer has held that on all 

of the testimony before him, he believes the respondent should have 

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the privilege of voluntary departure, and has granted the same. It is 

upon this basis, rather than the implication that it must be granted 

to respondent because the conviction does not statutorily preclude a 

finding of good moral character, that the grant of voluntary departure 

can be sustained. 

While we differ with the special inquiry officer on the basis for the 

conclusions reached by him, we concur in the actual conclusions, and 

the appeal will be dismissed. 

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

dismissed. 

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