Interim Decision #2823 

MATTER OF KHALIK 

In Deportation Proceedings 

A-30332952 

Decided by Board August 28, 1980 

(1) An immigration judge cannot go behind the judicial record to determine the guilt or 

innocence of an alien for a criminal offense, so a record of conviction upon a guilty plea 

constitutes a conviction for immigration purposes. 

(2) Violation of the Michigan statute prohibiting issuance of a check without sufficient 

funds is a crime involving moral turpitude since it includes the element of intent to 

defraud. Mich. Comp. Laws Ann. section 751131. 

(3) Despite the facts that the respondent's family members are all United States 

citizens and he is currently employed by his brother, a discretionary denial of a section 

212(c) waiver is warranted by his continued criminal behavior and evidence of his 

dishonest character. 

CHAR= 

Orden Act of 1952—Sec. 241(a)(4) [8 D.S.C. 1251(a)(4)j—Convicted of two crimes 

involving moral turpitude 

ON BEHALF OF RESPONDENT. Harvey R Bruner, Esquire 

Bruner & Shafran 

150 Engineers Building 

Cleveland, Ohio 44114 

BY: Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members 

In a decision dated December 7, 1978, the immigration judge found 

the respondent deportable under section 241(a)(4) of the Immigration 

and Nationality Act, 8 U.S.C. 1251(a)(4), as an alien who has been 

convicted of two crimes of moral turpitude not arising out of a single 

scheme of criminal misconduct. He further denied the respondent's 

application for relief pursuant to section 212(c) of the Act, 8 U.S.C. 

1182(c). The respondent has appealed from that decision. The appeal 

will be dismissed. 

The respondent is a 39-year-old native of Jordon. The immigrant 

visa issued to the respondent indicates that he is a stateless person. 

The record reflects that the respondent entered the United States on 

March 18, 1970, as a lawful permanent resident. The respondent's 

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father, three brothers, and a sister are United States citizens, although 

the record indicates that his father resides in Israel. 

The Order to Show Cause charges that the respondent was convicted 

of issuing a check without sufficient funds under $50 on July 5, 1975, In 

the Recorder's Court of the City of Detroit, and of issuing a check 

without sufficient funds over $50 on August 21, 1975, in the Circuit 

Court for Wayne County, Michigan. Evidence of both convictions is 

included in the record which reflects that the respondent pleaded 

guilty to both offenses and that he was represented by counsel, at least 

on the first offense. 

The immigration judge examined the statute which the respondent 

was found to have violated and concluded that the crime in question 

was one involving moral turpitude. He, therefore, determined that the 

respondent was deportable as charged. We agree. 

On appeal, the respondent contends that he was not convicted of two 

crimes involving moral turpitude. He argues that his conduct was a 

result of his misunderstanding as to how checking accounts function 

and that he pleaded guilty without understanding the import of his 

plea. Thus, he asserts that he was not, in fact, "convicted" of the 

offenses. He further states that the immigration judge erroneously 

determined that the crimes in question involved moral turpitude because he made no inquiry into the respondent's intent. 

It is well established that, insofar as deportation proceedings are 

concerned, an immigration judge cannot go behind the judicial record 

to determine the guilt or innocence of an alien. See Matter of 

McNaughton,16 I&N Dec. 569 (BIA 1978); Matter of Fortis,141&N Dec. 

576 (BIA 1974); Matter of Sirhan, 13 I&N Dec. 592 (BIA 1970). Inasmuch as the records of conviction indicate that the respondent pleaded 

guilty to both offenses, the immigration judge properly found that the 

respondent was convicted of the alleged crimes. 

The Michigan statute under which the respondent was convicted 

renders guilty— 

Any person who, with intent to defraud, shall make, draw or utter any check, knowing 

at the time he has not sufficient funds. Mich. Comp. Laws Ann. section 750.131. 

We have held that where a statute includes intent to defraud as an 

essential element of a bad check offense, the crime is one involving 

moral turpitude. See Matter of McLean, 12 I&N Dec. 551 (BIA 1967); 

Matter of Stasinski, 11 I&N Dec. 202 (BIA 1965); Matter of Bailie, 10 

I&N Dec. 679 (BIA. 1964). It is clear from the language of the Michigan 

statute which the respondent violated that intent to defraud is an 

essential element of the offense. Therefore, the immigration judge 

properly determined that the respondent was convicted of two crimes 

involving moral turpitude. Accordingly, we agree that deportability 
Interim Decision #2823 

was established by clear, convincing, and unequivocal evidence. 

In denying the respondent's request for 212(c) relief, the immigration judge considered the fact that the respondent has strong family 

ties in this country. He noted, however, that on October 24, 1978, a 

month and a half before the hearing, the respondent pleaded guilty to a 

charge of petty theft in the Bedford Municipal Court in Bedford, Ohio. 

The respondent's sentence of 30 days in jail was suspended, but he was 

ordered to pay a fine of $200. The immigration judge found that this 

conviction, which was not mentioned in the waiver application, indicated that the respondent had not been rehabilitated. He further 

determined that the respondent's testimony denying his previous 

criminal activity, as well as some debts alleged to be owing, was not 

credible and evidenced the respondent's lack of remorse for his behavior. He; therefore, concluded that the respondent failed to establish 

that he was deserving of a grant of discretionary relief. 

In Matter of Morin, 16 I&N Dec. 581 (BIA 1978), we held that a 

determination as to whether a favorable exercise of discretion is 

warranted on a section 212(c) application requires the immigration 

judge to balance the positive and adverse factors presented. Among 

the negative factors to be considered are the nature and underlying 

circumstances of the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the 

existence of a criminal record and, if so, its nature, recency, seriousness, and the presence of other evidence indicative of a respondent's 

bad character or undesirability as a permanent resident of this country. Favorable considerations have been found to include such factors 

as family ties within the United States, residence of long duration in 

this country (particularly when the inception of residence occurred 

while the respondent was of young age), evidence of hardship to the 

respondent and family if deportation occurs, service in this country's 

Armed Forces, a history of employment, the existence of property or 

business ties, evidence of value and service to the community, proof of 

a genuine rehabilitation if a criminal record exists, and other evidence 

attesting to a respondent's good character (e.g., affidavits from family, 

friends, and responsible community representatives). 

In applying for a waiver of deportability under section 212(c), the 

burden is on the respondent to establish that he merits a favorable 

exercise of discretion. Matter of Morin, supra. We do not believe that 

the respondent has successfully met that burden. 

The respondent's family members are all United States citizens, 

although his father is presently domiciled in Israel. These family ties 

and his employment by his brothers in their grocery stores are factors 

favorable to the respondent. However, the respondent's continued 

criminal behavior and his denial of any wrongdoing present strong 

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evidence of his dishonest character which, we believe, outweighs the 

favorable factors in this case. Therefore, as we are not convinced that 

the respondent has shown himself to be worthy of a favorable exercise 

of discretion, we shall affirm the immigration judge's denial of section 

212(c) relief. 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed.