Interim Decision #1915 

MATTER OF BERNABELLA 

In Deportation Proceedings 

A-14733481 

Decided by Board October 18, 1968 

Respondent, a native of Curacao, Netherlands Antilles, whose marriage to a 

United States citizen occurred subsequent to his last admission to this 

country (as a nonimmigrant) on or about May 23, 1967, is ineligible for a 

nuns pro tune section 212(h) waiver of the criminal grounds of inadmissibility existing at entry; further, he is ineligible as of the present time for 

a section 212(b) waiver hi the current deportation proceedings since section 212(h) benefits are available in deportation proceedings only in conjunction with adjustment of status under section 245 or section 249 of the 

Immigration and Nationality Act, as amended, and respondent, a native of 

a Western Hemisphere country, is ineligible for section 246 adjustment, 

and since he entered the United States subsequent to June 30, 1948 he is 

ineligible for the benefits of section 249 of the Act. 

CHARGES: 

Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) 1—Excludable at entry as person who admits commission of 

crime involving moral turpitude. 

Lodged: Act of 1952—Section 241(a) (1) (8 U.S.C. 1251(a) (1)1—Excludable at entry, conviction of crime involving 

moral turpitude. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE; 

Alphonso A. Christian, Esquire R. A. Vielhaber 

P.O. Box 327 Appellate Trial Attorney 

St. Thomas, Virgin Islands 00902 (Memorandum filed) 

These proceedings have been certified to us for review and final 

decision. The special inquiry officer on July 26, 1968 after a reopened hearing, affirmed an earlier decision of November 15, 1967 

in which he found respondent deportable as charged, denied his 

application for voluntary departure, and ordered that he be deported to Curacao, Netherlands Antilles. At the reopened hearing 

respondent applied for waiver of excludability pursuant to section 

212 (h), Immigration and Nationality Act. This was denied by the 

special inquiry officer. 

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Interim Decision *1915 

• The respondent is a 28-year-old married male alien, who is a 

native of Curacao, Netherlands Antilles and a citizen of the Netherlands. Respondent's last admission to the United States was at 

Charlotte Amalie, Virgin Islands, on or about May 23, 1967, at 

which time he was admitted as a visitor for pleasure. At the time 

he entered the United States he was married to a citizen of the 

Netherlands and was the father of one child. In November 1967 

he divorced this wife and he then married a United States citizen 

on January 1, 1968 in Puerto Rico. Respondent is excludable 

under section 212 (a) (9) of the Act as set forth more fully below. 

It is on the basis of this marriage to a United States citizen that 

the respondent is seeking a waiver of his excludability under section 212 (h), Immigration and Nationality Act. Respondent, however, does not concede that he is deportable. The special inquiry 

officer found that he was deportable under the lodged charge and 

not under the charge contained in the order to show cause, a conclusion with which we are in accord. 

The facts are not in dispute that respondent, prior to his entry 

to the United States, was convicted on at least three occasions of 

crimes involving moral turpitude, to wit, theft in 1958, theft in 

1960 and theft in 1968 (Exs. 5, 6 & 8). Respondent admits his 

convictions. Therefore, respondent is an alien ineligible to receive 

a visa and is excludable from admission to the United States 

under section 212 (a) (9) , Immigration and Nationality Act. 

Respondent seeks a waiver of his inadmissibility under section 

212(h) of the Act on the basis that he is now the spouse of a 

United States citizen, is otherwise admissible, and that his being 

excluded and deported from the United States would result in extreme hardship to his United States citizen wife. 

The respondent is not entitled to a waiver of his inad. aissibilitY 

nuns pro tune for the reason that when he entered the country on 

May 23, 1967, he was not then married to his present spouse and 

thus at that time had no relation to a citizen or permanent resident as specified in section 212 (h) of the Act. Consequently, authority for a waiver did not exist at the time of his entry? Further, section 212 (h) by its wording clearly contemplates that the 

admission for which a waiver of inadmissibility is considered 

must have been for permanent residence. In this case respondent 

entered the country as a visitor for pleasure. 

A waiver under section 212(h) as of the present time is also 

inappropriate. The benefits of section 212(h) are not :available in 

1 Matter of P—, 7 L & N. Dec. 718; Matter of Caudillo-Vilktlobos, 11 L & 

N. Dec. 15, 259; affirmed per curium 361 F.2d 329 (C. A. 5th, 1966). 

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deportation proceedings unless granted in conjunction with adjustment of status under section 245 or under section 249. 2Since 

the respondent is a native and citizen of a Western Hemisphere 

country, he is ineligible for adjustment under section 245. Also; 

since he entered the United States subsequent to June 30, 1948, 

he is ineligible for the benefits of section 249 of the Act. 

The special inquiry officer denied voluntary departure in the 

exercise of administrative discretion principally on the basis of 

respondent's rather extensive criminal record. We will not disturb this decision. 

Accordingly, we will affirm the decision of the special inquiry 

officer in toto. 

ORDER: It is ordered that the order of the special inquiry officer of July 26. 1968 denying respondent's application for voluntary departure and ordering his deportation to Curacao, Netherlands West Indies be and the same is hereby approved. 

2See Matter of DePmg) 8 I. & N. Dec. 68; Matter of DeGallotoalf, 8 I. & 

N. Dec. 325. 

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