Interim Decision #3169 

MATTER OF CORREA-GARCES 

In Deportation Proceedings 

A-29111329 

Decided by Board March 27, 1992 

(1) The immigration judge has no authority to extend the appeal period provided for by 

federal regulations at 8 C.F.R. § 242.21(a) (1991). 

(2) The authority to grant a stay of deportation once an order of deportation is entered 

against an alien is generally vested in the district director under federal regulations at 

8 C.F.R. § 243.4 (1991), and the immigration judge's authority is limited to granting a 

stay in connection with a motion to reopen or a motion to reconsider, or in connection 

with an appeal from a decision on such a motion. 

(3) A conviction which forms the basis of a finding that an alien lacks good moral 

character under section 101(f) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1101(f) (1988), need not be the basis upon which the alien is found deportable. 

(4) A conviction for making false statements on an application for a United States 

passport in another person's name, and for willfully, knowingly, and with intent to 

deceive, falsely representing a social security account number as one's own, for the 

purpose of fraudulently obtaining a passport in another person's name, is for a crime 

involving moral turpitude. 

CHARGE: 

Order. Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)]—Nonimmigrant—remained 

longer than permitted 

ON BEHALF OF RFSPONDENT: ON BEHALF OF SERVICE: 

James J. Orlow, Esquire Richard J. Sharkey 

Orlow and Orlow, P.C. District Counsel 

1154 Public Ledger Building 

Sixth and Chestnut Streets 

Philadelphia, Pennsylvania 19106 

BY: Milhoilan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In an oral decision dated May 21, 1990, an immigration judge 

found the respondent deportable as charged under section 241(a)(2) of 

the Immigration and Nationality Act, 8 U.S.C. § 1251(aX2) (1988), 

denied his application for voluntary departure under section 244(c)(1) 

of the Act, 8 U.S.C. § 1254(e)(1) (1988), and ordered him deported to 

Colombia, with the deportation order stayed until June 23, 1990. The 

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respondent filed an untimely appeal and requested oral argument 

before the Board. We will take the case on certification as provided by 

8 C.F.R. § 3.1(c) (1991) to avoid any question of untimeliness. The 

immigration judge's decision will be affirmed in part and reversed in 

part. The request for oral argument is denied. 

We initially point out that the immigration judge in this case 

granted the respondent 33 days, until June 23, 1990, within which to 

file an appeal of his decision. However, federal regulations provide: 

An appeal shall be taken within 10 days after the mailing of a written decision, or the 

stating of an oral decision, or the service of a summary decision.... When service of 

the decision is made by mail, as authorized by this section, 3 days shall be added to 

the period prescribed for the taking of an appeal. 

8 C.F.R. § 242.21(a) (1991) (emphasis added). The immigration judge 

has no authority to extend this appeal period. Therefore, the respondent's appeal, which was filed on June 22, 1990, over 10 days after the 

oral decision was rendered, is untimely. 

The respondent is a native and citizen of Colombia. On December 

15, 1989, the Immigration and Naturalization Service issued an Order 

to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien 

(Form 1-221S), alleging that the respondent entered the United States 

on June 20, 1988, as a nonimmigrant visitor for pleasure, authorized 

to remain until December 19, 1988, and that he remained beyond that 

date without authorization from the Service. At his deportation 

hearing on March 8, 1990, the respondent, through counsel, admitted 

the factual allegations and conceded deportability. We are satisfied 

that the respondent's deportability has been established by evidence 

that is clear, unequivocal, and convincing. See Woodby v. INS, 385 

U.S. 276 (1966); 8 C.F.R. § 242.14(a) (1991). 

The respondent subsequently applied for the discretionary relief of 

voluntary departure under section 244(e)(1) of the Act, and a hearing 

was held on May 21, 1990. The immigration judge denied voluntary 

departure without articulating the basis for his determination, either in 

his oral decision or in the memorandum of decision dated May 21, 

1990. He ordered the respondent deported, but further provided that 

the deportation order be stayed until Tune 23, 1990. 

On appeal, the respondent contends that the immigration judge's 

deportation order was unlawful because it was "conditional." While 

the respondent correctly points out that conditional orders are 

improper, we disagree with his characterization of the immigration 

judge's order in the instant case as a conditional order. Rather, the 

immigration judge has merely granted a stay of deportation in addition 

to ordering the respondent deported and denying his application for 

voluntary departure. We do, however, fmd that the immigration judge 

exceeded his authority in granting a stay of deportation to the 

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Interim Decision #3169 

respondent. The authority to grant a stay of deportation once an alien 

is ordered deported is generally vested in the district director. Federal 

regulations provide, in relevant part, as follows: 

Any request of an alien under a final administrative order of deportation for a stay of 

deportation, except a request for withholding of deportation pursuant to section 

243(h) of the Act, shall be filed on Form 1-246 with the district director .... The 

district director, in his discretion, may grant a stay of deportation for such time and 

under such conditions as he may deem appropriate.... Denial by the district 

director of a request for a stay is not appealable but such denial shall not preclude the 

Board from granting a stay in connection with a motion to reopen or a motion to 

reconsider as provided in part 3 of this chapter, nor such denial preclude the 

[immigration budge], in his discretion, from granting a stay in connection with, and 

pending his determination of a motion to reopen or a motion to reconsider a case 

falling within his jurisdiction pursuant to § 242.22 of this chapter, and also pending 

an appeal from such determination. 

8 C.F.R. § 243.4 (1991) (emphasis added); see also Bueno v. INS, 578 

F. Stipp. 22 (N.D. III. 1983). Thus, it is clear from the language of the 

regulation that the immigration judge has limited authority to grant a 

stay of deportation once he has entered an order of deportation. The 

judge's authority is limited to granting a stay in connection with a 

motion to reopen or a motion to reconsider, or in connection with an 

appeal from a decision on such a motion. The immigration judge in 

the instant case therefore exceeded his authority when he entered a 

stay of deportation at the same time his deportation order was entered. 

Nevertheless, the erroneous grant of a stay of deportation does not, as 

the respondent argues, invalidate the immigration judge's deportability determination. We will, however, vacate the judge's temporary stay 

of deportation. 

The only remaining issue on. appeal is the respondent's eligibility for 

voluntary departure under section 244(e)(1) of the Act. Because of the 

immigration judge's failure to articulate the basis of his decision to 

deny the requested relief, we review the record and make a de novo 

determination . 

In order to be statutorily eligible for voluntary departure, an alien 

must establish that he is, and has been, a person of good moral 

character for at least 5 years preceding his application for such relief. 

See section 244(e)(1) of the Act. The alien has the burden of 

establishing that he is statutorily eligible for voluntary departure and 

that he merits a favorable exercise of discretion. Matter of Pritchard, 

16 I&N Dec. 340 (BIA 1977); Matter of Tsang, 14 I&N Dec. 294 (BIA 

1973). Under section 101(0(3) of the Act, 8 U.S.C. § 11040(3) 

(1988), a person is precluded from establishing good moral character if 

he has been convicted of a crime involving moral turpitude. The 

conclusion that the person has not established good moral character 

may be based on that person's admissions at the deportation hearing 

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that he pleaded guilty to and was convicted of the crime in question. 

See Matter of Pritchard, supra. Contrary to the respondent's assertion 

on appeal, it is not necessary that the conviction used to determine 

whether the alien is a person of good moral character be the basis upon 

which the alien is found deportable. See, e.g., id. (alien deportable for 

entry without inspection, but precluded from establishing good moral 

character for purposes of voluntary departure based on a foreign 

conviction for possession of marihuana). Section 101(f)(3) of the Act 

relates to any crime of which the evidence, including the alien's 

admissions, establishes that the respondent was convicted. 

The record reflects that the respondent was convicted on March 20, 

1990, in the United States District Court for the Eastern District of 

Pennsylvania, for making false statements on an application for a 

United States passport under another name; and for willfully, knowingly, and with intent to deceive, falsely representing a social security 

account number as having been issued to him, for purposes of 

obtaining a passport in that other name. Crimes involving fraud are 

considered to be crimes involving moral turpitude. See Jordan v. 

DeGeorge, 341 U.S. 223, 232 (1951); Matter of Flores, 17 I&N Dec. 

225 (BIA 1980). Convictions for making false statements have been 

found to involve moral turpitude. See, e.g., Kabongo v. INS, 837 F.2d 

753 (6th Cir. 1988) (convictions for making false statements in order 

to obtain student financial aid involve moral turpitude). We therefore 

fmd that the respondent's conviction for making false statements, in 

order to fraudulently obtain a passport in another person's name, is for 

a crime involving moral turpitude. Because the crime for which the 

respondent was convicted in March 1990 is a crime involving moral 

turpitude, we find that the respondent cannot establish that he has 

been a person of good moral character for the last 5 years, and that he 

is statutorily ineligible for the relief of voluntary departure. 

Having found the respondent statutorily ineligible for voluntary 

departure, we find it unnecessary to address the issue of whether he 

demonstrated that he merits voluntary departure as a discretionary 

matter. Accordingly, the immigration judge's decision to deny the 

respondent voluntary departure will be affirmed, but his grant of a stay 

of deportation will be reversed. 

ORDER: The immigration judge's decision with respect to 

deportability and voluntary departure is affirmed. 

FURTHER ORDER: The immigration judge's grant of a stay 

of deportation until June 23, 1990, is reversed. 

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