Interim Decision #2564 

MATTER OF GONZALEZ 

In Deportation Proceedings 

A-20361805 

Decided by Board March 11, 1977 

(1) Respondent was convicted of a violation of 18 U.S.C. 912 and 2 for impersonating an 

immigration officer and as such, demanding and obtaining money. This was a crime 

involving moral turpitude. In deportation proceedings brought under section 241(a)(2) 

of the Immigration and Nationality Act, the immigration judge denied voluntary departure on the ground that respondent failed to show the requisite good moral character 

required by section 101(f)(3) of the Act notwithstanding that respondent had received a 

judicial recommendation against deportation under section 241(b) of the Act. 

(2) The decision of the U.S. Court of Appeals for the Third Circuit in Giarnbanco v. INS, 

531 F.2d 141 (1976) holds that a conviction for which a judicial recommendation against 

deportation under section 241(b) of the Act has been obtained may not be considered in 

an appliention for discretionary relief. That decision is controlling in this case since it 

arose in the Third Circuit (Newark). Therefore, the record will be remanded to the 

immigration judge in order that he may make a new determination respecting the 

application for voluntary departure without considering respondent's conviction. 

(3) Matter of Mangabat, 14 I. & N. Dec. 75 (BIA 1972), affirmed Mangabat v. INS, 477 

F.2d 108; cert. denied 414 U.S. 841 (1973), distinguished. 

CHARGE: 

Older; Act of 1952—Section 241(a)(2) 19 U.S.C. 1251(a)(2)]—Nonimmigrant visitor

—remained longer 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

James J. Orlow, Esquire George Indelicato 

Wasserman, Orlow, Kaye, & Rubin Appellate Trial Attorney 

636 Public Ledger Building 

6th & Chestnut Streets 

Philadelphia, Pennsylvania'19 106 

Allen E. Kaye, Esquire 

233 Broadway 

New York, New York 10007 

Milhallan, Chairman; Wilson, Maniatis, and Appleman, Board Members 

This is an appeal from the August 20, 1975, decision of an immigration 

judge in which the respondent was found deportable under section 

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241(a)(2), his application for voluntary departure was denied, and his 

deportation to Colombia was ordered. The respondent has appealed 

from that decision. The record will be remanded. . 

The respondent, a native and citizen of Colombia, entered the United 

States on or about June 13, 1972, as a nonimmigrant visitor. He remained beyond' the authorized period of his admission, and these proceedings were instituted against him. The respondent has conceded his 

deportability. The only issue on appeal involves the respondent's application for voluntary departure. 

In 1974 the respondent was convicted in the United States District 

Court, District of New Jersey, on Count 1 of an indictment which states 

that the respondent ". . did knowingly, wilfully and unlawfully combine, conspire, confederate . . . to falsely pretend and assume to represent to others that Jaime Jaramillo was an officer and employee of the 

United States acting under the authority thereof, that is, an officer and 

employee of the Immigration and Naturalization Service, and falsely act 

as such, and in such pretended character demand and obtain money, in 

violation of Title 18, United States Code, Sections 912 and 2." The crime 

of which the respondent was convicted is a crime involving moral turpitude. See Mercer v. Lexce, 96 F.2d 122 (10 Cir. 1938), cert. denied 305 

U.S. 611 (1938); Matter of B— , 6 I. & N. Dec. 702 (BIA 1955). 

The respondent, however, received a judicial recommendation 

against deportation pursuant to section 241(b) of the Act. The immigration judge concluded, however, that evidence of this conviction statutorily precluded the respondent from establishing good moral character 

under section 101(f)(3) and thereby acted as a bar to a grant of voluntary 

departure under section 244 of the Act. 

Subsequent to the immigration judge's decision, the United States 

Court of Appeals for the Third Circuit rendered its decision in Gianzbanco v. INS, 531 F.2d 141 (3 Cir. 1976). The court held in Giambanco 

that a conviction for which a judicial recommendation against deportation under section 41(1:1.) of the At has been obtained may not be 

considered in an application for discretionary relief.' 

In its brief on appeal the Service requests that we decline to apply the 

Third Circuit's ruling in Giambanco to this case. In support of its 

request, it relies on our decision in Matter of Mangabat, 14 1. & N. Dec. 

75 (MA 1972), affirmed Illangabat v. INS, 477 F.2d 108; cert. denied, 

414 U.S. 841 (1973). 

In Matter of Mangabat, we declined to apply a decision of the United 

States Court of Appeals for the Ninth Circuit to a case arising in the 

' The application involved in Giambanco was made under section 245 of the Act; the 

respondent in the present case has made an applic4Lion under section 244(e). However, 

the court's opinion in Giambanco clearly covers all discretionary applications under the 

Act. 

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circuit. However, the court in its decision had rejected the Board's long 

standing construction of a statute, a construction which had been endorsed in courts outside the Ninth Circuit and which had been approved 

by the Attorney General. The instant case does not contain the persuasive factors present in Matter of Mangabat. Despite the fact that the 

Service apparently has not acquiesced in the court's ruling in Giambanco, it is our opinion that we are bound by the court's ruling in those 

cases arising within the Third Circuit. See Matter of Amado and Mon- 

, 13 I. & N. Dec. 179 (BIA 1969). 

With due respect for the court, however, we state our disagreement 

with its holding in Giarnbanco. Section 241(b) expressly prevents an 

alien's deportation on the basis of a conviction for which a judicial 

recommendation against deportation was made despite the provisions of 

section 241(a)(4). The Act nowhere states that the criminal activity and 

the conviction which resulted therefrom cannot be considered in connection with an application for discretionary relief. However, in recognition 

of the policy expressed by Congress in section 241(b), we are of the 

opinion that an alien who has a conviction for which a judicial recommendation against deportation has been made should not be precluded 

by section 101(f)(3) from establishing good moral character. Since the 

existence of the conviction does not bar further inquiry, all evidence of 

record, including that conviction and the nature of the criminal activity, 

could be considered in determining whether the respondent is a person 

of good moral character and in exercising discretion under section 244(e) 

of the Act. Contrary to the view expressed by the court, the interpretation suggested here is the same applied in those cases in which an 

expungement of the conviction has been obtained. See In re Paoli, 49 F. 

Supp. 128 (N.D. Cal. 1943); Matter of H— , 6 I. & N. Dec. 619 (BIA 

1E156). 

The present case illustrates the inadvisability of establishing rigid 

roles which deny to the immigration judges the flexibility necessary to 

carry out their duty to analyze sensitively the competing factors in each 

particular case. See Matter of Blas, Interim Decision 2485 (BIA 1974; 

Attorney General 1976). The respondent's conviction of 1974 resulted 

from his involvement in a particularly despicable criminal scheme: he 

conspired to pose as an Immigration and Naturalization Service employee and to fraudulently obtain money from other aliens on the basis 

of false promises to procure lawful permanent resident status for them. 

Had no criminal action been instituted against the respondent, the fact 

of his involvement in the criminal activity could have been brought out 

and considered in connection with an application for discretionary relief. 

I'Erie court's ruling in Giantbanco places him in a position superior to the 

person who has not been convicted of his crime. Although the fact of his 

emviction should not preclude him from establishing statutory eligibil126 
Interim Decision #2564 

ity for the relief, we are of the opinion that the respondent is neither a 

person of good moral character nor a person who merits a favorable 

exercise of discretion. 

Nevertheless, pursuant to the court's decision in Giambanco , we shall 

remand the record to the immigration judge in order that he may make a 

new determination on the application for voluntary departure. The 

immigration judge shall not consider the respondent's conviction in 

reaching a new decision on the application. 

ORDER: The record is remanded to the immigration judge for 

further proceedings consistent with the above opinion. 

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