Interim Decision #2066 

MATTER OF URPI-SANCHO 

In Deportation Proceedings 

A-48822222 

Decided by Board September 15, 1970 

An alien admitted as a nonimmigrant student who was convicted of a single 

petty offense involving moral turpitude for which she was imprisoned, is 

not by reason of such conviction precluded by the provisions of section 

101 (f) (3) of the Immigration and Nationality Act from establishing good 

moral character during the period required for establishing eligibility for 

voluntary departure under section 244 (e) of the Act. [Matter of Neely 

and Whylie, 11 I. & N. Dec. 864, overruled insofar as it deals with the 

privilege of voluntary departure.] 

CHARGE: 

Order : Act of 952—Section 241 (a) (9) [8 U.S.C. 1251 (a) ( 9 ) ] —Nonimmigrant student—Failure to maintain status. 

This case presents an appeal from a decision of a special inquiry officer denying the respondent's application for the privilege of voluntary departure, and ordering her deportation to 

Costa Rica. 

The respondent is a 21-year-old unmarried native and citizen of 

Costa Rica, who has resided in the United States since her arrival at Miami, Florida, on or about September 28, 1969. She was 

admitted as a nonimmigrant student to attend the University Of 

Miami, and was authorized to remain in this country until September 27, 1970. 

Early in February, 1970, the respondent interrupted her studies at the University of Miami, allegedly for one semester only. 

She has stated that a Service officer advised her that, in view of 

the short period involved, an application for a status change was 

unnecessary. 

On February 19, 1970, the respondent was arrested for shoplifting. She was tried in the Miami, Florida, Municipal Court, on 

February 24, 1970, and was sentenced, on the charge of theft of 

goods of the total value of $48.23, to imprisonment in the city jail 

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for five days, and was fined $300. She did not pay the fine, and 

served 15 days in the city jail. While she had pleaded guilty to 

the charge, she now maintains that the articles which were found 

in her handbag had been placed there by a friend who had accompanied her. 

The special inquiry officer found that the respondent had not 

maintained her student status, that she had failed to comply with 

the conditions of her admission as a nonimmigrant student, and 

that her deportability had been established by clear, convincing, 

and unequivocal evidence. He then found the respondent ineligible 

for the privilege of voluntary departure, and cited Matter of 

Neely and Whylie, 11 I. & N. Dec. 864 (BIA, 1966), as the basis 

for his decision. There we had sustained the Service appeal, had 

found each respondent deportable, and had added that, in view of 

the recent conviction of a crime involving moral turpitude, each 

respondent was statutorily ineligible for the relief of voluntary 

departure, under section 101 (f) (3), since good moral character 

could not be established for the five-year period required under 

section 244 (e). Apparently, the fact that the crime involved was 

a petty offense was overlooked. 

We hereby overrule our decision in Matter of Neely and Whylie, supra, insofar as it deals with the privilege of voluntary departure. 

Good moral character for at least five years immediately preceding an alien's application for voluntary departure under 

subsection (e) of the section 244 of the Immigration and Nationality Act is a prerequisite for a grant of voluntary departure 

under that subsection. Section 101 (f) of the Act lists eight 

classes of aliens who shall not be regarded as persons of good 

moral character. Persons described in paragraph (9) of section 

212(a), that is, generally speaking, aliens who have been convicted of a crime involving moral turpitude, are included in the 

third class of persons who are precluded from establishing good 

moral character. Section 101(f) (3). However, petty one-time offenders are specifically excepted in paragraph (9) of section 

212(a), with the result that conviction of just one petty offense 

involving moral turpitude will not make an alien excludable 

under that section. It follows that, under section 101 (f) (3), such 

a conviction of a petty offense involving moral turpitude cannot 

preclude an alien from establishing good moral character in a 

deportation proceeding. We so held in Mutter of M—, 7 1. & N. 

Dec. 147 (BIA 1956). 

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The fact that a person is not within one of the eight classes 

listed under section 101(f) does not preclude a finding that, for 

other reasons, the person is, or was, not of good moral character. 

Section 101(f), last sentence. In other words, 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 provisions of the 

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

Dec. 399 (BIA, 1959); Matter of Turcotte, 12 I. & N. Dec. 206 

(BIA, 1967). 

In the case now before us, the special inquiry officer correctly 

found that the respondent was deportable, for even a petty offense involving criminal conduct constitutes a violation of an alien's nonimmigrant status and renders the alien deportable. 

Matter of A—, 6 I. & N. Dec. 762 (BIA, 1955). The exception 

to the general rule, in certain student cases (see Matter of C—, 9 

I. & N. Dec. 100 (BIA, 1960) ), does not apply here, since the special inquiry officer found that the respondent had not maintained 

her student status, and since, moreover, the respondent's conviction had resulted in her actual incarceration. 

The special inquiry officer followed our holding, now overruled, 

in Matter of Neely and Whylie, 11 I. & N. Dec. 864 (BIA, 1966), 

and found the respondent ineligible for voluntary departure. We 

shall remand this matter to him so that he can determine whether 

or not the respondent should be granted the privilege of voluntary departure under section 244(e) of the Immigration and Nationality Act. 

Voluntary departure is a privilege and a matter of grace. Matter of Turcotte, 12 I. & N. Dec. 206 (BIA, 1967). While statutory 

eligibility is a prerequisite to a grant of voluntary departure, an 

alien does not discharge his burden of establishing good moral 

character merely by showing that a particular act in violation of 

the law does not preclude a finding of good moral character. 

Matter of Turcotte, supra. At a new hearing this respondent 

should be given the opportunity to show that, in spite of her recent conviction of a petty offense, she has been a person of good 

moral character for the required five-year period. Section 244 (e). 

The special inquiry officer will then determine whether or not 

good moral character has been established, and whether or not 

voluntary departure shall be authorized. 

ORDER: It is ordered that this matter be and hereby is remanded to the special inquiry office for further proceedings in accordance with this opinion. 

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