CORREA-GARCES
(2) The authority to grant a stay of deportation once an order of deportation is entered against an alien is generally vested in the district director under federal regulations at
(3) A conviction which forms the basis of a finding that an alien lacks good moral character under section 101(f) of the Immigration and Nationality Act,
(4) A conviction for making false statements on an application for a United States passport in another person‘s name, and for willfully, knowingly, and with intent to deceive, falsely representing a social security account number as one‘s own, for the purpose of fraudulently obtaining a passport in another person‘s name, is for a crime involving moral turpitude.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [
ON BEHALF OF RESPONDENT: James J. Orlow, Esquire; Orlow and Orlow, P.C.; 1154 Public Ledger Building; Sixth and Chestnut Streets; Philadelphia, Pennsylvania 19106
ON BEHALF OF SERVICE: Richard J. Sharkey, District Counsel
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In an oral decision dated May 21, 1990, an immigration judge found the respondent deportable as charged under section 241(a)(2) of the Immigration and Nationality Act,
We initially point out that the immigration judge in this case granted the respondent 33 days, until June 23, 1990, within which to file an appeal of his decision. However, federal regulations provide:
An appeal shall be taken within 10 days after the mailing of a written decision, or the stating of an oral decision, or the service of a summary decision.... When service of the decision is made by mail, as authorized by this section, 3 days shall be added to the period prescribed for the taking of an appeal.
The respondent is a native and citizen of Colombia. On December 15, 1989, the Immigration and Naturalization Service issued an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S), alleging that the respondent entered the United States on June 20, 1988, as a nonimmigrant visitor for pleasure, authorized to remain until December 19, 1988, and that he remained beyond that date without authorization from the Service. At his deportation hearing on March 8, 1990, the respondent, through counsel, admitted the factual allegations and conceded deportability. We are satisfied that the respondent‘s deportability has been established by evidence that is clear, unequivocal, and convincing. See Woodby v. INS, 385 U.S. 276 (1966);
The respondent subsequently applied for the discretionary relief of voluntary departure under section 244(e)(1) of the Act, and a hearing was held on May 21, 1990. The immigration judge denied voluntary departure without articulating the basis for his determination, either in his oral decision or in the memorandum of decision dated May 21, 1990. He ordered the respondent deported, but further provided that the deportation order be stayed until June 23, 1990.
On appeal, the respondent contends that the immigration judge‘s deportation order was unlawful because it was “conditional.” While the respondent correctly points out that conditional orders are improper, we disagree with his characterization of the immigration judge‘s order in the instant case as a conditional order. Rather, the immigration judge has merely granted a stay of deportation in addition to ordering the respondent deported and denying his application for voluntary departure. We do, however, find that the immigration judge exceeded his authority in granting a stay of deportation to the
Any request of an alien under a final administrative order of deportation for a stay of deportation, except a request for withholding of deportation pursuant to section 243(h) of the Act, shall be filed on Form I-246 with the district director .... The district director, in his discretion, may grant a stay of deportation for such time and under such conditions as he may deem appropriate.... Denial by the district director of a request for a stay is not appealable but such denial shall not preclude the Board from granting a stay in connection with a motion to reopen or a motion to reconsider as provided in part 3 of this chapter, nor such denial preclude the [immigration judge], in his discretion, from granting a stay in connection with, and pending his determination of, a motion to reopen or a motion to reconsider a case falling within his jurisdiction pursuant to § 242.22 of this chapter, and also pending an appeal from such determination.
The only remaining issue on appeal is the respondent‘s eligibility for voluntary departure under section 244(e)(1) of the Act. Because of the immigration judge‘s failure to articulate the basis of his decision to deny the requested relief, we review the record and make a de novo determination.
In order to be statutorily eligible for voluntary departure, an alien must establish that he is, and has been, a person of good moral character for at least 5 years preceding his application for such relief. See section 244(e)(1) of the Act. The alien has the burden of establishing that he is statutorily eligible for voluntary departure and that he merits a favorable exercise of discretion. Matter of Pritchard, 16 I&N Dec. 340 (BIA 1977); Matter of Tsang, 14 I&N Dec. 294 (BIA 1973). Under section 101(f)(3) of the Act,
The record reflects that the respondent was convicted on March 20, 1990, in the United States District Court for the Eastern District of Pennsylvania, for making false statements on an application for a United States passport under another name; and for willfully, knowingly, and with intent to deceive, falsely representing a social security account number as having been issued to him, for purposes of obtaining a passport in that other name. Crimes involving fraud are considered to be crimes involving moral turpitude. See Jordan v. DeGeorge, 341 U.S. 223, 232 (1951); Matter of Flores, 17 I&N Dec. 225 (BIA 1980). Convictions for making false statements have been found to involve moral turpitude. See, e.g., Kabongo v. INS, 837 F.2d 753 (6th Cir. 1988) (convictions for making false statements in order to obtain student financial aid involve moral turpitude). We therefore find that the respondent‘s conviction for making false statements, in order to fraudulently obtain a passport in another person‘s name, is for a crime involving moral turpitude. Because the crime for which the respondent was convicted in March 1990 is a crime involving moral turpitude, we find that the respondent cannot establish that he has been a person of good moral character for the last 5 years, and that he is statutorily ineligible for the relief of voluntary departure.
Having found the respondent statutorily ineligible for voluntary departure, we find it unnecessary to address the issue of whether he demonstrated that he merits voluntary departure as a discretionary matter. Accordingly, the immigration judge‘s decision to deny the respondent voluntary departure will be affirmed, but his grant of a stay of deportation will be reversed.
ORDER: The immigration judge‘s decision with respect to deportability and voluntary departure is affirmed.
FURTHER ORDER: The immigration judge‘s grant of a stay of deportation until June 23, 1990, is reversed.