Interim Decision #3167 

MATTER OF BALAO 

In Deportation Proceedings 

A-19679883 

Decided by Board March 26, 1992 

Intent to defraud is not an essential element of the crime of passing bad checks under 

title 18, section 4105(a)(1) of-the Pennsylvania Consolidated Statutes and, therefore, a 

conviction under this law is not for a crime involving moral turpitude. 

CHARGE: 

Orden Act of 1952—Sec. 241(a)(4) [8 U.S.C. § 1251(a)(4)J—Crimes involving moral 

turpitude 

Lodged; Act of 1952—Sec. 241(a)(1)(C) [8 U.S.C. § 1251(a)(1)(C)—Nonimmigrantfailed to comply with conditions of status 

ON BEHALF OF RESPONDENT. 

Philip D. Abramowitz, Esquire 

Korenberg, Abramowitz SE Feldun 

15910 Ventura Blvd., Suite 1531 

Encino, California 91436 

ON BEHALF OF SERVICE: 

Richard Sharkey 

District Counsel 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

The respondent has appealed from the June 19, 1991, decision of an 

immigration judge finding him deportable as charged and ordering 

him deported to the Philippines. The appeal will be sustained in part 

and dismissed in part. 

The respondent is a native and citizen of the Philippines, who last 

entered the United States on November 29, 1970, as the spouse of an 

exchange visitor. On April 27, 1988, he was convicted in the Court of 

Common Pleas, Allegheny County, Pennsylvania, on three counts of 

passing bad checks, in violation of title 18, section 4105(a)(1) of the 

Pennsylvania Consolidated Statutes. The respondent was sentenced to 

2 years' probation for this crime. On August 17, 1988, the respondent 

was convicted by the same court of theft by failure to make required 

disposition of funds received, in violation of title 18, section 3917(a) 

of the Pennsylvania Consolidated Statutes. The respondent was 

sentenced to 3 1/2 to 7 years' imprisonment for this crime. 

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On December 14, 1988, the Immigration and Naturalization 

Service issued an Order to Show Cause, Notice of Hearing, and 

Warrant for Arrest of Alien (Form I-221S) charging the respondent 

with deportability under section 241(a)(4) of the Immigration and 

Nationality Act, 8 U.S.C. § 1251(a)(4) (1988), as an alien who, after 

entry, had been convicted of two crimes involving moral turpitude, not 

arising out of a "single scheme of criminal misconduct." The Order to 

Show Cause alleged further that the respondent had been admitted as 

the spouse of a nonimmigrant exchange visitor with authorization to 

remain until January 14, 1972. Finally, it was asserted that the 

respondent had been granted indefinite voluntary departure on 

January 21, 1972, as the beneficiary of an approved third-preference 

visa petition filed on behalf of his spouse. At deportation proceedings 

commenced on February 13, 1991, the Service lodged an additional 

ground of deportability against the respondent pursuant to section 

241(a)(1)(C) of the Act, 8 U.S.C. § 1251(a)(1)(C) (Supp. II 1990), 

alleging that he was also deportable as a nonimmigrant who failed to 

maintain the conditions of his status by remaining in the United States 

beyond the period of his authorized stay. 

At his deportation hearing, the respondent, who elected to proceed 

without representation, admitted the allegations contained in the 

Order to Show Cause regarding the terms of his admission and his 

convictions. However, he denied his deportability under section 

241(a)(4) of the Act, contending that all of his convictions arose out a 

"single scheme," namely, the financial downfall of his tobacco and 

cigarette distributing company. The respondent maintained that his 

bank froze his company account and did not honor three checks he 

had drawn on the account because he was unable to repay a previously 

obtained bank loan. He testified further that his conviction for failure 

to make required disposition of funds resulted from his receipt of 

$190,000 from various individuals in an attempt to refinance his 

faltering business. The respondent maintained that all of his convictions arose from financial problems which began when one of his 

major customers went into bankruptcy, leaving his business without 

available cash. Since all of his convictions arose out of the same 

problem, the respondent argued that he was not deportable under 

section 241(a)(4) of the Act for crimes "not arising out of a single 

scheme of criminal misconduct." 

Further, the respondent alleged that he was not deportable as an 

overstayed nonimmigrant under section 241(a)(1)(C) of the Act 

because he had been granted indefinite voluntary departure and 

authorization to work by the Government until such time as a visa 

became available to him. He indicated that it was his understanding 

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that he was legally in the United States awaiting "permanent residency 

for a priority date." 

At the conclusion of the hearing, the immigration judge determined 

that the respondent was deportable as charged under section 241(a)(4) 

of the Act. Noting that he was without authority to go behind the 

record of conviction, the immigration judge found that the respondent's bad check conviction indicated the adjudicating court's finding 

of an element of deceit. He concluded further that these crimes and the 

respondent's conviction for theft by failure to make required disposition of funds received did not arise out of a single scheme of 

misconduct despite the respondent's claim that they all arose out of the 

failure of his business. 

The immigration judge also found the respondent deportable as an 

overstayed nonimmigrant. In reaching this conclusion, he noted that 

the grant of indefinite voluntary departure to the respondent was only 

an acquiescence by the Service of his presence in the United States. 

According to the immigration judge, while the Government may not 

have intended to enforce an order of deportation against an alien who 

was granted indefinite voluntary departure, such a grant did not 

preclude the entry of an order of deportation against that alien. The 

immigration judge determined that since the respondent's nonimmigrant status expired on January 14, 1972, he was no longer in a valid 

nonimmigrant status and was therefore subject to deportation. Finally, 

the immigration judge determined that the respondent was not eligible 

for any form of relief from deportation due to his convictions. In this 

regard, he noted that the respondent did not appear to qualify for a 

waiver of his crimes, despite the existence of his United States citizen 

children, based on the apparent changes in the provisions of section 

212(h) of the Act, 8 U.S.C. § 1182(h) (Supp. II 1990), under section 

601(d)(4) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 

Stat. 4978, 5076-77. 

On appeal, the respondent, now represented by counsel, reiterates 

his claim that the Service has failed to establish his deportability under 

section 241(a)(4) of the Act. Initially, the respondent asserts that none 

of his convictions is for a crime involving moral turpitude. In 

particular, the respondent argues that his August 1988 conviction for 

theft by failure to make required disposition of funds received does 

not involve moral turpitude. The respondent also contends that the 

Service has failed to establish that his crimes did not arise out of a 

"single scheme of misconduct" so as to render him deportable 

pursuant to section 241(a)(4) of the Act. 

Further, the respondent urges that he is not deportable under 

section 241(a)(1)(C) of the Act since he was granted indefinite 

voluntary departure on January 21, 1972, and the district director 

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Interim Decision #3167 

never revoked that grant prior to the commencement of the present 

deportation proceedings. Citing Immigration and Naturalization Service Operations Instructions 242.10 (1972), 1the respondent asserts 

that from July 1956 to July 31, 1972, a nonimmigrant present in the 

United States who was subject to deportation was eligible for extended 

voluntary departure if he was the beneficiary of an approved thirdpreference visa petition. He maintains that an alien granted such 

extended voluntary departure was permitted to remain in the United 

States indefinitely until an immigrant visa became available to him. 

Finally, the respondent argues that the immigration judge erroneously 

dissuaded him from applying for a section 212(h) waiver. He contends 

that he is statutorily eligible for such relief despite the revision of 

section 212(h) by the Immigration Act of 1990, 104 Stat. at 5076-77. 

Further, he asserts that he is the parent of several United States citizen 

children, one of whom is 21 years old. 

Upon a review of the record before us and the statute under which 

the respondent was convicted, we find that the decision of the 

immigration judge with regard to the respondent's deportability under 

section 241(a)(4) of the Act is in error. 

Section 241(a)(4) of the Act provides for the deportation of an alien 

who "at any time after entry is convicted of two crimes involving 

moral turpitude, not arising out of a single scheme of criminal 

misconduct, regardless of whether confined therefor and regardless of 

whether the convictions were in a single trial." As a primary matter, 

therefore, we must determine whether the respondent's crimes involve 

moral turpitude. We conclude that the convictions for passing bad 

checks are not for crimes involving moral turpitude. 

We have held that where a law governing the issuance of worthless 

checks, by its express terms, involves an intent to defraud, a 

conviction for a violation of that law constitutes a conviction for a 

crime involving moral turpitude for immigration purposes. See Matter 

of Malik, 17 I&N Dee. 518 (BIA 1 980) (Michigan); Matter of Logan, 

17 I&N Dec. 367 (BIA 1980) (Arkansas); Matter of Westman, 17 I&N 

Dec. 50 (BIA 1979) (Washington); Matter of McLean, 12 I&N Dec. 

551 (BIA 1967) (California and Colorado). However, the Pennsylvania 

statute at issue here does not expressly require intent to defraud as an 

element of the crime. 18 Pa. Cons. Stat. § 4105(a)(1) (1987). The 

statute speaks only of the "knowing" issuance of bad checks. Id. 

Former Operations Instructions 242.10 provided in pertinent part: 

Voluntary departure prior to commencernent of hearing (a) Authorization. Voluntary 

departure natty be granted to any alien who is statutorily eligible therefor ... (6)(i) 

who is the beneficiary of an approved third preference petition .... 

See also United States ex reL Parco v. Morris, 426 F. Supp. 976, 980 n.7 (E.D. Pa. 1977). 

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The Pennsylvania Supreme Court, in construing section 4105(a)(1), 

has answered the question of whether intent to defraud is necessary to 

a conviction under the statute. As stated by the court, it is well 

established that in enacting section 4105(a)(1), the legislature intended 

to denominate as a crime the passing of a check for which there are 

insufficient funds, where the insufficiency was within the knowledge of 

the issuer, regardless of whether the issuer possessed a specific intent 

to defraud. Commonwealth v. Kyslinger, 484 A.2d 389 (Pa. 1984); 

Commonwealth v. Mutnik, 406 A2d 516 (Pa. 1979). In Mutnik, the 

court specifically noted that section 4I05(aX1) differs in one important aspect from its repealed predecessor, section 4854, in that an 

intent to defraud is no longer an essential element of the crime. The 

court stated as follows: 

Former section 4854 expressly required an intent to defraud as one of the essential 

elements of the crime, see Commonwealth v. Horton, 465 Pa. 213, 217, 348 A.2d 

728, 730 (1975). In redrafting the Crimes Code in 1972, the legislature deliberately 

omitted the requirement of an intent to defraud as a constituent element of the crime 

of issuing a bad check.... Moreover, we are permitted to consider the prior act only 

when the words of the present statute are not explicit. When, as here, "thc words of a 

statute are clear and free from all possible ambiguity, the letter of it is not to be 

disregarded under the pretext of pursuing its spirit." 1 Pa. C.S.A. § 1291(b) (1979 

Pamphlet). We therefore hold that section 4105 does not require the Commonwealth 

to prove an intent to defraud on the part of the defendant. 

Commonwealth v. Mutnik, supra, at 517-18 (footnote omitted). 

The respondent's convictions under section 4105(a)(1) therefore 

come within the ambit of those Board decisions where we held that, 

with regard to worthless check convictions, moral turpitude is not 

involved if a conviction can be obtained without prior proof that the 

convicted person acted with intent to defraud. See Matter of Zangwill, 

18 I&N Dec. 22 (BIA 1981), rev'd on other grounds, Matter of Ozkok, 

19 I&N Dec. 546 (BIA 1988); Matter of Colbourne, 13 I&N Dec. 319 

(BIA 1969); Matter of Stasinskt, 11 I&N Dec. 202 (BIA 1965). In 

accordance with these precedents, we find that the respondent's 

convictions for passing bad checks are not for crimes involving moral 

turpitude. 

Based on the foregoing, we conclude that the Service has failed to 

establish the respondent's deportability under section 241(a)(4) of the 

Act. Even assuming, arguendo, that the respondent's conviction for 

theft by failure to make required disposition of funds received 

constitutes a conviction for a crime involving moral turpitude, 

deportability under section 241(a)(4) requires that an alien be convicted of at least two crimes involving moral turpitude. Since the 

respondent's convictions for passing bad checks do not involve mural 

turpitude, the Service cannot establish the respondent's deportability 

pursuant to section 241(a)(4) of the Act. Thus, we need not reach the 

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Interim Decision #3167 

question of whether or not the respondent's crimes arose out of a 

single scheme of criminal misconduct. Accordingly, that part of the 

respondent's appeal relating to the charge of deportability under 

section 241(a)(4) will be sustained. 

We turn now to the charge of deportability brought under section 

241(a)(1)(C) of the Act. It is undisputed that the respondent was 

granted indefinite voluntary departure on January 12, 1972, as the 

derivative beneficiary of a third-preference visa petition approved on 

his wife's behalf. Under an Immigration and Naturalization Service 

policy in effect from at least August 1956 until July 31, 1972, a 

nonimmigrant physically in the United States, who was subject to 

deportation but who filed a satisfactory third-preference visa petition, 

was eligible for extended (indefinite) voluntary departure. See former 

Operations Instructions 242.10(a)(6) (1972); Matter of Banaria, 16 

I&N Dec. 421 (BIA 1977). Citing 8 C.F.R. § 242.5(c) (1991), the 

respondent asserts that since he was never notified by the district 

director of the revocation of this indefinite voluntary departure grant, 

he cannot he deported as an overstayed nonimmigrant pursuant to 

section 241(a)(1)(C) of the Act. We disagree. 

The above-referenced Operations Instructions relating to the Service's indefinite voluntary departure policy was rescinded on July 31, 

1972. Thereafter, the Service policy regarding indefinite voluntary 

departure was codified at 8 C.F.R. § 242.5(a)(2) (1979). See also 43 

Fed. Reg. 29,526, 29,528 (1978). Pursuant to 8 C.F.R. 

§ 242.5(a)(2)(vi)(D) (1991), voluntary departure is available to an 

alien who: 1) is statutorily eligible for such relief, 2) is admissible to 

the United States as an immigrant, and 3) is a third-preference alien 

with a priority date earlier than August 9, 1978. The respondent falls 

into this category of aliens since he was granted derivative thirdpreference status on January 12, 1972. We emphasize, however, that 8 

C.F.R. § 242.5(a)(3) (1991) specifically limits the period of voluntary 

departure granted. By its terms, an alien within the above category, 

such as the respondent, is granted voluntary departure for an 

indefinite period until an immigrant visa is available. The respondent 

himself has noted this limitation on the voluntary departure granted 

him pursuant to the precursor to this regulation. The State Department Visa Bulletin indicates that a visa became available to the 

respondent in November 1988. See Department of State Visa Bulletin, 

Vol. VI, No. 15 (November 1988). There is no indication that the 

respondent took any action to acquire immigrant status after a visa 

became available to him. We conclude that the respondent's voluntary 

departure grant expired once a visa became available to him and he 

failed to act upon that availability and enter the United States as an 

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immigrant. He then reverted to the nonimmigrant status under which 

he was admitted. 

The respondent's reliance on 8 C.F.R. § 242.5(c) (1991) is misplaced. That section provides for the revocation of voluntary departure by a district director or other designated official, without notice, if 

it subsequently appears that voluntary departure should not have been 

granted. The regulation is inapplicable to the present case. The 

question presented here relates to the termination of the respondent's 

voluntary departure period and not the revocation. of such grant, 

which is addressed in 8 C.F.R. § 242.5(c) (1991). As previously 

indicated, the point of termination is specifically stated in 8 C.F.R. 

§ 242.5(a)(3) (1991). Moreover, we find totally without merit counsel's assertion that the language of the regulation implies that all other 

voluntary departure recipients must be notified of any attempted 

revocation. Counsel's theory assumes language not contained in the 

regulation. 

The Form 1-94 (Arrival-Departure Record) contained in the record 

reflects that the respondent's nonimmigrant status, -with extensions, 

expired on January 14, 1972. The respondent is therefore in the 

United States beyond the period authorized and is deportable under 

section 241(a)(1)(C) of the Act as a nonimmigrant who failed to 

maintain the conditions of his status. That part of the respondent's 

appeal relating to the charge of deportability under section 

241(a)(1)(C) of the Act will be dismissed. 

Finally, we conclude that a section 212(h) waiver is unavailable to 

the respondent as a means of relief from deportation. Section 212(h) 

relief is available in deportation proceedings in conjunction with an 

application for adjustment of status, where it may be used to waive 

inadmissibility that -would otherwise preclude adjustment of status. 

See Matter of Parodi, 17 I&N Dec. 608 (BIA 1980); Matter of 

Bernabella, 13 I&N Dec. 42 (BIA 1968). It has also been held available 

to aliens deportable under section 241(a)(4) of the Act to waive the 

comparable ground of excludability under section 212(a)(9) on a nunc 

pro tune basis. Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980). 

However, the respondent did not apply for adjustment of status during 

the deportation proceedings and to date has made no such application 

for relief. Additionally, section 212(h) relief is not available to the 

respondent on a nunc pro tune basis since it has not been demonstrated that he departed and returned to the United States since the 

time of the 1988 convictions. Matter of Parodi, supra. Given the 

respondent's clear ineligibility for relief under section 212(h), either 

the former version or as amended by the Immigration Act of 1990, 104 

Stat. at 5076-77, we need not reach the other issues raised by him 

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relating to the application of that section? The respondent has not 

applied for any other form of relief from deportation. Accordingly, the 

following orders will be entered. 

ORDER: The appeal from the finding of deportability under 

section 241(a)(4) of the Act is sustained. 

FURTHER ORDER The appeal from the finding of deportability under section 241(a)(1)(C) of the Act and the denial of section 

212(h) relief is dismissed. 

2As indicated by the immigration judge, at the time of the respondent's June 19, 1991, 

deportation hearing, the law with regard to section 212(h) was in flux. In this regard, we 

note that section 212(h) was significantly amended, first by the Immigration Act of 

1990, 104 Stat. at 5076-77, and subsequently by section 307(1) of the Miscellaneous and 

Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 

105 Stat. 1733, 1755. 

447