Interim Decision #2142 

MATTER OF AWAISANE 

In Deportation Proceedings 

A-18981180 

Decided by Board April 5, 1972 

(1) Respondent's 1967 conviction in Lebanon of attempted murder in 1964, a 

crime involving moral turpitude, for which he was sentenced to 7% years with 

sentence commuted to 6 months imprisonment is not a conviction classifiable 

as a "petty offense" within the Meaning of section 212(a)(9) of the Immigration 

and Nationality Act, as amended. 

(2) Notwithstanding conviction occurred within the statutory 5-year-period, 

since the offense of which convicted was committed more than 5 years ago, 

respondent is not precluded by the provisions of section 101(f) of the Act from 

a finding of good moral character during the requisite period for the purpose 

of establishing statutory eligibility for voluntary departure under section 

244(e) of the Act. 

(3) A waiver of inadmissibility under section 212(dX3XA) of the Act is, by the 

specific terms of that provision, applicable only to admission as a nonimmigrant. 

CHARGE: 

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(aX2)}—nonimmigrant visitor—remained longer. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

John W. Harrigan, Esquire Irving A. Appleman 

1712 First National Bank Bldg. Appellate Trial Attorney 

Minneapolis, Minnesota 55402 

This case presents an appeal from an order of the special inquiry 

officer denying respondent's applications for adjustment of status 

pursuant to section 245 of the Immigration anti Nationality Act, as 

amended, and for the privilege of voluntary departure. He ordered 

that the respondent be deported to Lebanon. The respondent's 

deportability was conceded through counsel and has been established by clear, convincing and unequivocal evidence. The special 

inquiry officer's denial of section 245 relief is affirmed. We find the 

respondent eligible for voluntary departure and will grant him 

that privilege. 

The respondent, a native and citizen of Lebanon, age 36, has 

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resided in the United States since his arrival here in October 1969 

as a visitor for pleasure. He has been granted a waiver under 

section 212(dX3)(A) of the Act in order to visit his sick mother for a 

period of one month. A fifth preference visa petition, filed in his 

behalf by a United States citizen brother, was approved in January 1970. His application for permanent residence was denied by 

the District Director, however, for the reason that he was inadmissible under section 212(a)(9) on the basis of his conviction in 1967 

for the crime of attempted murder in 1964. 

The following facts relate to the offense for which respondent 

was convicted. Aware of rumors that his wife was involved in an 

illicit relationship, the respondent encountered the accused lover 

one evening after observing him in the company of his wife. A 

scuffle ensued and both men were stabbed with knives prohibited 

by law. The enraged respondent then entered his home and 

stabbed his wife several times with the apparent intent to murder 

her. All three individuals were hospitalized. The respondent's wife 

and her male friend were later acquitted of adultery charges. A 

Lebanese court found the respondent guilty of the felony of 

attempted murder under Article 547 of the criminal law and 

imposed upon him a sentence of seven and one-half years. The 

sentence was commuted to six months' imprisonment on the 

ground that there was some apparent justification for the respondent's outburst_ Respondent is now divorced from his wife and 

she has remarried. Their three children, ranging in age from 9 to 

16, still reside in Lebanon with respondent's sister and he contributes to their support. Beside his mother, respondent also has two 

brothers living in the United States. He has been steadily employed here. 

Counsel asserts on appeal that respondent is not ineligible for 

section 245 relief as one inadmissible under section 212(a)(9) of the 

Act. He contends (1) that the Lebanese conviction was not , for a 

crime involving moral turpitude; and (2) in any event, the conviction comes within the "petty offense" exception of section 212(a)(9). 

We reject both arguments and sustain the special inquiry officer's 

conclusion that respondent is inadmissible under section 212(aX9). 

Whether a particular. crime involves moral turpitude is determined by the standard prevailing in the United States, Mercer v. 

Lowe, 96 F.2d 122.(C.A. 10, 1938), cert. denied 305 U.S. 611. Moral 

turpitude inheresdnt.the intent. We have held that malicious 

intention or what is !equivalent to such intention is the broad 

boundary between -crimes -involving moral turpitude and those 

which do not, Matter of P—, 2 I. & N. Dec. 56 (BIA, 1948), and 

Matter of E—, 2 I. & N. Dec. 134 (BIA, 1944). There is no distinction 

for immigration purposes in respect to moral turpitude, between 

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Interim Decision #2142 

the commission of the substantive crime and the attempt to 

commit it; U.S. ex ?el. Meyer v. Day, 54 F.2d 336 (C.A. 2, 1931). The 

term moral turpitude has been defined by the Attorney General as 

anything done contrary to jUstice, honesty, principle, or good 

morals; an act of baseness, vileness or depravity in the private and 

social duties which a man owes to his fellow man, or to society in 

general, Matter of Sloan, 12 I. & N. Dec. 840, 849, 854 (BIA, 1968). 

On the record before us, we conclude that the crime of which the 

respondent was convicted did involve moral turpitude, cf. Matter of 

Szegedi, 10 I. & N. Dec. 28 (AG 1962). 

Under 18 U.S.C. 1, any offense punishable by death or imprisonment for a term exceeding one year is a felony, any other offense 

is a misdemeanor. Any misdemeanor, the penalty for which does 

not exceed imprisonment for a period of six months or a fine of not 

more than $500, or both, is a petty offense. The statute further 

provides, however, that whoever attempts to commit murder or 

manslaughter, shall be fined not more than $1,000 or imprisoned 

not more than three years or both, 18 U.S.C. 1113. Thus, attempted 

murder is a felony since the statute provides for a possible term of 

imprisonment exceeding the six months limitation provided for 

conviction of a misdemeanor. 

We also reject counsel's contention that the waiver of inadmissibility as a nonimmigrant under section 212(dX3)(A) of the Act 

affects his inadmissibility under section 212(a)(9) for purposes of 

entry as an immigrant. A waiver under section 212(d)(3XA) is, by 

the specific terms of that provision, applicable only to admission as 

a nonimmigrant. 

Counsel also challenges on appeal the denial of voluntary departure. That privilege was denied by the special inquiry officer on 

both the finding of ineligibility and in the exercise of discretion. 

We hold that the special inquiry officer erred in concluding that 

the statute precludes a finding of good moral character, a prerequisite to voluntary departure eligibility. The special inquiry officer 

found as fact that the Lebanese crime had been committed within 

the statutory five-year period. This was erroneous; the offense 

occurred in 1964. In our view, that offense does riot fall within any 

of the provisions of the act which preclude a finding of good moral 

character as a matter of law. 

As we pointed out in Matter of Gantus-Bobadilla, 13 L & N. Dec. 

777 (BIA, 1971), prior to the enactment of the Immigration and 

Nationality Act of 1952, there was no statutory definition of, or 

limitation on a finding of, good moral character. Applying the 

standards then permitted, the courts reached different conclusions 

with respect to the permissibility of a finding of good moral 

character in the case of an alien who had been convicted of 

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Interim Decision #2142 

murder, Petition of Sperduti, 81 F. Supp. 833 (M.D. Pa., 1949); In re 

Balestrieri, 59 F. Supp. 181 (N.D. Cal., 1945); In re Caroni, 13 F.2d 

954 (N.D. Cal., 1926); In re Ross, 188 Fed. 685 (M.D. Pa., 1911). 

Section 101(f) of the 1952 Act set up a group of eight categories 

of aliens who were precluded from showing good moral character 

during the required statutory period. In most of the categories, the 

proscribed conduct had to take plane during the statutory period 

to preclude a finding of good moral character as a matter of law. 

The eighth category, however, precluded such a finding in the case 

of "one who at any time had been convicted of the crime of 

murder." (Emphasis added.) Had the respondent been convicted of 

murder, he would .clearly be barred by this provision. However, 

respondent's offense was, at most, attempted murder, which falls 

within none of the eight categories specified by Congress. We 

cannot therefore conclude that this offense, committed outside the 

statutory five-year period for which good moral character is 

required by section 244(e) of the Act, bars eligibility for voluntary 

departure as a matter of law. 

Neither is such a conclusion required by the concluding sentence 

of section 101(f): "The fact that any person is not within any of the 

foregoing classes shall not preclude a finding that for other reasons 

such person is or was not of good moral character." (Emphasis 

added.) Since Congress has not listed attempted murder as an 

offense which precludes a finding of good moral character as a 

matter of law no matter when committed, we may not indirectly 

add it to the eight enumerated categories by the simple device of 

lumping it in with the "for other reasons" category. The latter was 

designed to point out that, even if a person did not come within 

any of the eight categories barred as a matter of law, he could for 

some other reason be found to be lacking in good moral character 

as a matter of fact. In that event, of course, the pertinent 

standards would be those generally applied. 

There is nothing in the record to indicate that, since his 1964 

offense, respondent has behaved in a manner incompatible with 

the accepted standards of the community. He has been regularly employed since his arrival in the United States two and onehalf years ago and has contributed very generously to the support 

of his three children in Lebanon. The respondent apparently has 

had no difficulty with the law since coming to this country. On this 

record, denial of this minimal form of relief as a matter of 

discretion does not seem to us to be warranted. We shall therefore 

sustain the appeal insofar as it concerns the denial of voluntary 

departure and shall grant that privilege within such period and 

under such conditions as may be fixed by the District Director. 

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ORDER: The appeal is dismissed so far as concerns denial of 

the application for adjustment of status under section 245. 

It is further ordered that the outstanding order of deportation be 

withdrawn and the alien be permitted to depart from the United 

States voluntarily to the country of his choice without expense to 

the Government within such period of time as the District Director 

directs and upon his failure to depart in accordance with the 

foregoing, the respondent shall be deported to Lebanon on the 

charge contained in the order to show cause. 

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