Interim Decision #2181 

MATTER OF KATSANIS 

In Deportation Proceedings 

A-17045328 

Decided by Board January 10, 1973 

Respondent's conviction in Greece of attempted fraud, a crime involving moral 

turpitude, for which he was sentenced to 5 months and 10 days, or, in lieu 

thereof, 100 drachmas for each day of imprisonment, is classifiable as a "petty 

offense" within the purview of the exception provisions of section 212(aX9) of 

the Immigration and Nationality Act, as amended. 

CHARGE: 

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

visitor—remained longer than permitted. 

ON BEHALF OF RESPONDENT: 

Nathan T. Notkin, Esquire 

11 South LaSalle Street 

Chicago, Illinois flARD2 

Counsel of record: 

Harry E. Gabrielides, Esquire 

2430 West Lawrence Avenue 

Chicago, Illinois 60625 

ON BEHALF OF SERVICE: 

R. A. Vielhaber 

Appellate Trial Attorney 

The respondent, a native and citizen of Greece, last entered the 

United States on April 5, 1965 as a nonimmigrant visitor for 

pleasure authorized to remain until July 4, 1965. He remained 

thereafter without permission. Deportation proceedings were commenced against him on July 15, 1966 on the above charge. The 

respondent conceded deportability and did not appeal from the 

special inquiry officer's August 22, 1966 decision finding him 

deportable and granting him voluntary departure. 

The proceedings were reopened two years later upon the respondent's motion to permit him to apply for adjustment of status 

under section 245 of the Immigration and Nationality Act. The 

respondent was then and still is the beneficiary of a fifth preference visa petition, which was filed on his behalf by his United 

States citizen brother, and which was approved on September 9, 

1068, valid through September 9, 1973. In a decision dated June 30, 

1971, the special inquiry officer denied the respondent's application 

266 
Interim Decision #2181 

for adjustment of status on the ground that the respondent was 

excludable under section 212(aX9) of the Immigration and Nationality Act and was not eligible for a waiver of excludability under 

section 212(h) of the Act. The respondent appeals from this 

decision. We shall sustain the appeal and remand the case to the 

special inquiry officer for discretionary action. 

Adjustment of status under section.245 is available to an alien 

(1) who is eligible for an immigrant visa, (2) Who is admissible to 

the United States for permanent residence, and (3) to whom an 

immigrant visa is immediately available at the - time his applica-- 

is approved. In the present case the first and third require- tion 

ments evidently have been satisfied, since the respondent ,is the 

beneficiary of an approved visa petition and, according to the 

latest State Department Bulletin, fifth preference visa numbers 

are currently available to applicants born in Greece. -The only 

remaining question is whether he is admissible to the United 

States as a permanent resident. An alien applying for adjustment 

of status is assimilated to the position of an alien seeking to enter 

the United States for permanent residence, Campos v. INS, 402 

F.2d 758, 760 (9 Gin; 1968). 

The Service contends that the respondent is not admissible but 

rather excludable under section 212(aX9) because he was convicted 

in Greece of at least one crime involving moral turpitncle--:to wit, 

attempted fraud—and that this conviction does not fall within the 

exception for petty offenses contained in section 212(aX9).- In 

opposition, the respondent asserts that his conviction was not for a • 

crime involving moral turpitude, but that, even if it had been, the 

offense was a misdemeanor, and by reason of the sentence actually imposed it was a petty offense and therefore within the 

section 212(a)(9) exception. 

Section 212 states, in pertinent part: 

(a) Except as otherwise provided in this Act, the following classes of aliens 

shall be ineligible to receive visas and shall be exclthied from admission into 

the United States: ... (9) Aliens who have been convicted of a crime involving 

moral turpitude (other than a purely political offense) .... Any alien who 

would be excludable because of the conviction of a misdemeanor classifiable as 

a petty offense under the provisions of section 1(3) of title 18. United States 

Code, by reason of the punishment actually imposed, or who would be excludable as one who admits the commission of an offense that is classifiable as a 

misdemeanor under the provisions of section 1(2) of title 18, United States 

Code, by reason of the punishment which might have been imposed upon him, 

may be granted a visa and admitted to the United States if otherwise 

admissible: Provided, That the alien has committed only one such offense.... 

(Emphasis supplied.) 

In order for the section 212(aX9) exception to apply in this case, , 

(1) the conviction must be for a crime involving moral turpitude; 

267 
Interim Decision #2181 

(2) the crime must be a misdemeanor, 18 U.S. Code, section 1(3); (3) 

the misdemeanor must be classifiable as a petty offense by reason 

of the punishment actually imposed; and (4) there may be only one 

such conviction. 

, The record shows that the respondent was convicted in Greece 

of the offenses of threats, slight bodily injury, and insult. The 

special inquiry officer found, and we agree, that these offenses do 

not involve moral turpitude. The respondent was also convicted of 

an attempt to commit fraud,' and false statements without oath. 2 

found that the respondent had, in concert with The Greek court 

another person, tried to pay for some goods with a $500 check 

which he knew was •forged or which he knew had no cover at the 

bank on which it was drawn (it is not clear from the English 

translation whether or not forgery was involved, Exh. Group 3-4, 

pp. 5, 6-7—see below, p. 7). The shopkeeper , whom he had attempted to pay with this check decided not to accept it without 

first ascertaining that it was genuine. The court also found that 

the respondent had subsequently made a false statement concerning his own identification to a passing policeman. For these 

offenses together he was sentenced to five months and 10 days, or, 

in lieu thereof, 100 drachmas for each day of the imprisonment. 

To determine whether or not a crime committed in a foreign 

country involves moral turpitude, American standards must be 

applied, Matter of M—, 9 I. & N. Dec. 132, 134 (BIA, 1960). 

According to American standards, moral turpitude attaches to 

crimes where fraud is an ingredient, Jordan v. De George, 341 U.S. 

223, 232, 71 S. Ct. 103, 95 L. Ed. 886, 893 (1951), such as false 

pretenses, Bermann v. Reimer, 123 F.2d 331, 332 (C.A. 2, 1941). 

Similarly, passing a bad check generally involves moral turpitude, 

U.S. ex rel. Portada v. Day, 16 F.2d 328 (S.D.N.Y., 1926), except 

where intent to defraud is not part of the crime as defined in the 

Article 386 of the Greek Penal Code of 1950 (Fraud) (Apate): 

(1) Whoever causes damage to the property of another with the intention of 

procuring unlawful benefit for himself or a third person by knowingly leading 

such other into an act, sufferance, or omission by means of representing 

falsehoods as facts or misrepresenting or concealing the existing facts, shall be 

punished by imprisonment for not less than three months and, if the damage is 

especially great, not less than two years. (Ex. Group 3-1, Analysis of Certain 

Aspects of Greek Criminal Law with Translations, p. 5.) 

2Article 225 of the Greek Penal Code of 1950 (False Statements without Oath): 

(1) — 

(2) Whoever, in other cases, knowingly makes false statements during an 

interrogation by a public authority or by his representative or in an application 

to a public authority or denies and/or conceals the truth shall be punished with 

imprisonment for up to one year. Whoever appears before a public authority and 

refuses a deposition or oath shall be punished with the same penalty. (Id.) 

268 
Interim Decision #2181 

statute, Matter of Colbourn, 13 I. & N. Dec. 319 (BIA, 1969). If the 

basic crime is one of moral turpitude, so is the attempt to commit 

that crime. "An attempt involves specific intent to do the substantive crime ..., and, if doing the latter discloses moral turpitude, so 

also does the attempt, for it is in the intent that moral turpitude 

inheres," U.S. ex rel. Meyer v. Day, 54 F.2d 336, 337 (CA. 2, 1931). 

We conclude that the respondent's conviction for attempted 

fraud is a conviction for a. crime involving moral turpitude. 

The next question concerns whether or not this crime is a 

misdemeanor. The classification of a crime committed in a foreign 

country as a misdemeanor or a felony, is likewise made according 

to United States standards; i.e., the offense is examined in the 

light of the maximum puniihment" imposable for an equivalent 

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

equivalent offense is not found there, Title 22 of the DiStriet of 

Columbia Code, Matter of T —, 6 L & N. Dec. 508, 517 (A.G., 1955); 

Matter of Adamo, 10 I. & N. Dec. 593, 595 (BIA, 1964); Gieinmario 

v. Hurney, 311 F.2d 285, 286 (C.A. 3, 1962). A misdemeanor is any 

offense other than one punishable by death or by imprisonment 

for a term exceeding one year,• 18 U.S.C. 1(1), (2). 

The special inquiry officer found that the comparable crime in 

the United States was fake pretenses, 22 D.C. Code 1301. The 

maximum punishment for this offense, if the value of the property 

is more than $100, is three years. The special inquiry officer then 

concluded that the crime in question was not a misdemeanor, but 

a felony, and hence that the section 212(aX9) exception did not 

apply. 

However, counsel has pointed out in his brief and at oral 

argument on appeal that the respondent was not convicted of the 

completed offense of false pretenses—and the Service concedes 

this—but only of an attempt to commit false pretenses. Concerning 

attempts the District of Columbia Code specifies that if an attempt 

is not otherwise made punishable by Title 22, then it is punishable 

by a fine of not more than $1,000 or imprisonment for not more 

than one year, or both, which makes the offense of attempt a 

misdemeanor. Attempt to commit the crime of false pretenses is 

not otherwise made punishable by the District of Columbia Code. 

The Service now contends that the attempt at false pretenses of 

which the respondent was convicted is actually the crime of 

forgery, 22 D.C. Code 1401. Forgery carries a maximum penalty of 

10 years and is therefore a felony. But the record of conviction—

which is ambiguous, as mentioned above—says only that the 

respondent knew that the check was forged, not that he forged it. 

As for uttering or delivering a check with intent to defraud, also 

suggested as the equivalent of the Greek crime of which the 

269 
Interim Decision #2181 

respondent was convicted, that is a misdemeanor, 22 D.C. Code 

1410. Although this may describe what happened in Greece, it is 

not the crime for which the respondent was convicted there. In 

any case, this does not help the Service's argument. 

The Service urges that the respondent was also convicted of 

falsely identifying himself to a police officer in connection with the 

attempted •fraud. It is suggested that the equivalent of this crime 

in the District of Columbia Code is false personation before court, 

officers, notaries, 22 D.C. Code 1303. 3In our opinion, false personation before court, officers,. notaries implies false swearing and is 

not the equivalent of the Greek crime of false statements without 

oath. 

From the foregoing we conclude that when American standards 

are applied to the crime for which the respondent was convicted in 

Greece, the equivalent crime is a misdemeanor. Consequently the 

petty offense exception applies, since the punishment actually 

imposed was less than six months or $500 or both. 

Hence the respondent is not excludable under section 212(aX9). 

Consequently, he is not statutorily ineligible for adjustment of 

status under section 245. The' decision of the special inquiry officer, 

then, will be reversed, and we shall remand the case to him to act 

upon the respondent's application for adjustment of status. 

ORDER:. The case is remanded to the special inquiry officer so 

that he may act upon the respondent's application for adjustment 

of status, in exercise of the discretion vested in him as the duly 

authorized delegate of the Attorney General. 

3Whoever falsely personates another person before any court of record or •

judge thereof, or clerk of court, or any officer in the District authorized to 

adrainister oaths or take the acknowledgment of deeds or other instruments or 

to grant marriage heenses,. -with intent to defraud, shall be imprienned for not 

less Allan one year nor more than five years. (22 D.C. Code 1303.) 

270