Interim Decision #2838 

MATTER OF PIROGLU 

In Deportation Proceedings 

A-20599693 

Decided by Board November 26, 1980 

(1) Section 101(f)(7) of the Immigration and Nationality Act, 8 U.S.C. 1101(0(7), 

precludes a person from establishing good moral character if he was confined, as a 

result of conviction, to a penal institution for an aggregate period of 180 days or more, 

regardless of whether the offense for which.he was confined was committed within the 

period for which good moral character must be shown. 

(2) The respondent, whose prison term resulted from a violation of probation rather 

than from an original sentence to incarceration, is nevertheless barred from establishing good moral character on the basis of his confinement and is, therefore, 

statutorily ineligible for voluntary departure. 

CHADOR' 

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

remained longer than authorized 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

David Carliner, Esquire Gerald Hurwitz 

931 Investment Building Appellate Trial Attorney 

1511 K Street, N.W. 

Washington, D.C. 20005 Ernest H. Hupp 

Trial Attorney 

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

In a decision dated April 3, 1978, the immigration judge found the 

respondent deportable under section 241(a)(2) of the Immigration and 

Nationality Act, 8 1251(a)(2), as a nonimmigrant who remained 

longer than permitted, and denied his application for voluntary departure. The respondent has appealed from that decision. The appeal will 

be dismissed. 

The respondent is a 31-year-old native and citizen of Turkey who 

entered the United States in 1973 as a nonimmigrant visitor for 

pleasure.' The record reflects that he was married to a United States 

' The respondent's Arrival-Departure Record (Form 1-94) states that the respondent 

entered the United States on March 19, 1973, whereas the Order to Show Cause alleges 

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citizen from whom he is now divorced. It further indicates that the 

respondent is the father of a United States citizen child born to a 

woman other than his wife while he was married. At oral argument, 

counsel for the respondent stated that the respondent has now married 

the mother of his child. 

Included in the record is a record of conviction in the General 

District Court of Arlington County, Virginia, which indicates that the 

respondent was found guilty of discharging a firearm in public and was 

fined $25 plus costs on September 2, 1975. The record also contains a 

Judgment and Probation/Commitment Order from the United States 

District Court for the District of Maryland, dated June 13, 1977, which 

orders that a fine previously imposed on the respondent for a second 

conviction be suspended, that probation be terminated, and that he 

serve 9 months in prison. 

At deportation proceedings, the respondent conceded deportability a 

and requested voluntary departure. The immigration judge denied the 

respondent's application for relief from deportation on the ground 

that the respondent was statutorily ineligible as being precluded under 

section 101(f)(2) of the Act, 8 U.S.C. 1101(f)(2), from establishing good 

moral character because of his adultery. He further stated that he 

would deny voluntary departure as a matter of discretion since the 

respondent admitted that he had been convicted twice and that he had 

insufficient funds to return to Turkey. 

At oral argument, counsel for the respondent argued that the immigration judge erred in finding that the respondent was statutorily 

ineligible far voluntary departure because he was not, in fact, guilty of 

committing adultery. It was further asserted that the immigration 

judge's ruling on discretionary grounds was also in error. 

After responding to these arguments, the Appellate Trial Attorney 

noted that the respondent had been confined in a penal institution for 

more than 180 days as a result of conviction. He, therefore, argued that 

the respondent was precluded from establishing good moral character 

by section 101(f)(7) of the Act. On rebuttal, counsel for the respondent 

contended that since the re spondent was only required to serve time in 

prison because of his inability to pay a fine, it would be unfair to 

penalize him for his poverty. 

Our review of the record confirms that the respondent did, in fact, 

admit to having served 9 months in prison. He stated that he was 

originally sentenced to a fine and a period of probation, but was unable 

that his entry was made on April 19, 1973. 

Although deportability was conceded at the hearing, the respondent challenged the 

immigration judge's finding on his Notice. of Appeal (Form I-290A). However, at oral 

argument, counsel for the respondent stated that the question of deportability was not 

contested on appeal. 

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to pay the fine and, being afraid to tell the court, violated his probation. 

Section 101(f)(7) of the Act provides as follows: 

(f) For the purposes of this Act—No person shall be regarded as, or found to be, a 

person of good moral character who, during the period for which good moral 

character is required to be established, is. or was— 

(7) one who during such period has been confined, as a result of conviction, to a 

penal institution for an aggregate period of 180 days or more, regardless of 

whether the offense, or offenses, for which he has been confined were committed within or without such, period. 

The language of the statute is clear that confinement for the 

prescribed period resulting from a conviction bars a finding of good 

moral character. It makes no exception for a prison term resulting 

from violation of probation rather than from an original sentence to 

incarceration' Absent a showing that Congress intended to make such 

a distinction, we are unwilling to so limit the statutory mandate that 

persons within its scope should be barred from establishing good 

moral character. Moreover, we have previously noted that the rationale behind the statute was that a person who has served a jail term of a 

specified length is not worthy of special exemptions from the penalties 

of the immigration laws. See Matter of B—, 7 I&N Dee. 405 (BIA 1957). 

We, therefore, conclude that the respondent is precluded by section 

101(f)(7) from establishing good moral character, which renders him 

ineligible for voluntary departure. 

Inasmuch as the respondent is statutorily ineligible for voluntary 

departure under section 101(f)(7) of the Act, we need not reach the 

issue of his ineligibility based on his alleged adultery. Accordingly, the 

appeal will be dismissed. 

ORDER. The appeal is dismissed. 

In Matter of Gantus-Bobadilla,13 MN Dec. 777 (BIA 1971), we found that a sentence 

to probation without incarceration did not bar a finding of good moral character under 

section 101(f)(7) of the Act. That case is distinguishable from the instant case in that the 

respondent there was never actually confined as required by the statute. 

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