Interim Decision #2123 

MATTER OF FERNANDEZ 

In Exclusion Proceedings 

A-13311155 

Decided by Board January 17, 1972 

(1) Conviction of the offense of transporting forged securities in interstate 

commerce in violation of 18 U.S.C. 2314 is conviction of a crime involving moral 

turpitude. 

(2) A three-year sentence to imprisonment on each of two counts of an offense, 

with the sentences to run concurrently, does not constitute "aggregate 

sentences to confinement actually imposed" of "five years or more" within the 

meaning of section 212(a)(10) of the Immigration and Nationality Act. 

(3) A special inquiry officer's refusal to entertain a section 212(h) application for 

a waiver of excludability because the applicant was still in prison, was not 

improper. 

EXCLUDABLE: Act of 1952—Section 212(a)(9) [8 1182(aX9)l—Convicted of 

crime involving moral turpitude. 

Act of 1952—Section 212(aX10) [8 U.S.C. 1182(aXlO)]—Convicted of 

two or more offeliscs for which the aggregate 

sentences to confinement actually imposed were 

five years or more. 

ON BEHALF OF APPLICANT: Pro se 

The applicant is a 35-year-old married male, a native and citizen 

of Cuba. He was admitted for permanent residence in 1957. In 1962 

he participated in the Bay of Pigs invasion. He married a United 

States citizen in 1966. In 1969 he went to Mexico. The Mexican 

authorities deported him to the United States on November 9, 

1969. He was paroled into the United States at that time. In an 

order dated May 4, 1971, the special inquiry officer found the 

applicant excludable as charged. From that order the applicant 

appeals. The appeal will be dismissed. 

The file indicates that the applicant has the following criminal 

record. On December 13, 1965 he was convicted in California for 

issuing various checks with the intention to defraud, a violation of 

section 476a, Penal Code of California, for which offense he received a suspended sentence to 90 days imprisonment. On June 5, 

1968 he was convicted in California of the offense of operating a 

motor vehicle without the owner's consent, a violation of section 

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Interim Decision #2123 

10851, Vehicle Code of California, for which he again received a 

suspended sentence to 90 days imprisonment. On April 1, 1970 he 

was convicted in the United States District Court for the Southern 

District of Florida on two counts of transporting forged securities 

in violation of 18 U.S.C. 2314. For this he was sentenced to three 

years imprisonment on each count, with the sentences to run 

concurrently. 

We shall decide this appeal solely with reference to the federal 

conviction referred to above. We agree with the special inquiry 

officer that the offense of transporting forged and fraudulent 

securities in interstate commerce is a crime involving moral 

turpitude. As regards the applicant's first two convictions, we find 

it unnecessary to make any holding with respect to whether they 

involve moral turpitude. In any event, the record before us is 

deficient in that it does not contain the text of the relevant 

California statutes. The special inquiry officer's order not only 

contains no discussion of this point, but it also contains no precise 

finding of moral turpitude. 

Inasmuch as we accept the special inquiry officer's finding that 

the applicant has been convicted of two counts of an offense 

involving moral turpitude, we also endorse the special inquiry 

officer's holding that the applicant is excludable under section 

212(a)(9) of the Act. 

The special inquiry officer found that "Adding all these sentences...together you see that the applicant clearly has been 

convicted of two or more crimes or offenses and has been sentenced to more than 5 years in jail...." The special inquiry officer 

accordingly found him excludable under section 212(a)(10) of the 

Act. With this we do not agree. In a previous decision, unfortunately unpublished, we have held that two concurrent three-year 

sentences result in an aggregate sentence actually imposed, for 

purposes of section 212(a)(10), of only three years, Matter of Rink, 

T-367043 (unreported, BIA, September 24, 1954). Therefore, we 

reverse the special inquiry officer's finding that excludability 

under section 212(aX10) was established. 

The special inquiry officer stated that the applicant's deportation into the United States by the Mexican authorities constituted 

an "entry." We do not agree since it is well established that an 

alien's parole into the United States does not constitute an "entry" 

within the meaning of the Immigration and Nationality Act, Lung 

May Ma v. Barber, 357 U.S. 185 (1958); Matter ofDabiran, 13 I.&N. 

Dec. 587(BIA, 1970). 

The record indicates that the applicant has a United States 

citizen spouse and a son born in Mexico. The special inquiry officer 

noted that the applicant would normally be eligible for considera2 5 
Interim Decision #2123 

tion for a waiver of excludability under section 212(h) of the Act. 

However, the special inquiry officer refused to entertain an application for such relief because the applicant was still in prison. We 

agree with this action of the special inquiry officer. This is without 

prejudice to reopening and reconsideration in the event of a 

renewed application submitted at such time as the applicant, by 

his behavior over a reasonable period of time, is able to demonstrate that a waiver of his excludability is merited as a matter of 

discretion and that his admission would not be contrary to the 

national safety, security and welfare of the United States. 

For the foregoing reasons, the special inquiry officer's order of 

excludability is upheld, but only as relates to section 212(a)(9), and 

the applicant's appeal will be dismissed. The following order will be 

entered. 

ORDER: The appeal is dismissed. 

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