IMMIG BIA 212(h) Nunc Pro Tunc

8/14/2019 IMMIG BIA 212(h) Nunc Pro Tunc

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LISA S. BRODYAGA, ESQUIRE17891 Landrum Park RoadSan Benito, TX 78586-0000

U.S. Department of JusticeExecutiveOffice for Immigration ReviewBoard ofImmigration AppealsOffice ofthe Clerk5107LeesburgPike, Suite 2000Falls Church, Virginia 22041

OffIce of the District CounsellHLGP.O. Box 1711Harlingen, TX 78551

Narne:

Date of this notice: 10110/2008Enclosed is a copy of the Board's decision and order in thc above-referenced case.

Sincerely,

Donna CarrChiefClerk

Enclosure

Panel Members:GRANT, EDWARDR.Kendall-Clark, MollyMalphrus, Garry D.

COURTESY OF WWW.BIBDAILY.COM


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U.S. Department of JusticeExecutiveOffice for Immigration ReviewFalls Church, Virginia 22041

Decision of the Board of ImmigrationAppeals.

File: - Harlingen, TX Date: OCT 1 0 2008In re:IN RENOVAL PROCEEDlNGSAPPEALON BEHALF OF RESPONDENT: Lisa S. Brodyaga, EsquireON BEHALF OF DHS: . Lisa M. PutnamSenior Attorney

APPLICATION: Termination ofproceedings; waiver ofinadrnissibility

In an order dated May 23, 2007, and received by the Board on January 25, 2008, the UnitedStatesCourt ofAppeals for theFifthCircuit granted the government's unopposedmotion to remandthe record. In our previous decision, we had affirmed the Immigration Judge's conclusion that the .respondent had committed a crime involving moral turpitnde and was ineligible for a waiver ofinadmissibility under section 2l2(h) of the Immigration andNationality Act; 8 U.S.C. 1l82(h).We will remand the record to the Immigration Judge for consideration of the respondent'sapplication for a waiver of inadmissibility.We first address therespondent's argument thather crimeoftamperingwith government recordsis not one involving moral turpitude. The conviction record indicates that the respondent "withintent to defraud or harm another . . . knowingly made a false entry in a governmental record," and

that she was convicted of a "State Jail Felony" (Exh. 2). Further, the crime under which therespondent was convicted indicates that it is a "misdemeanorunless the actor's intent is to defraudor harm another, in which event the offense is a state felony." Texas Penal Code 37.1O(c)(1). TheFifth Circuit has repeatedly emphasized that crimes whose essential elements involve fraud ordeception tend to involve moral turpitude and that crimes including dishonesty or lying as anessential element involve moral turpifude. Hyder v. Keisler, 506 F.3d 388 (5th Cir. 2007). The.Fifth Circuit also stated that the particwar circumstances of the crime, for example, the lack of avicious motive or the victim being a government entity, are not determinative; And, the courtobserved, "almost all other courts have held that intentionally deceiving the government involvesmoral turpitude." ld (quoting Omagah v. Ashcroft, 288 F.3d 254, 259 (5th Cir. 2002.

The respondent also argues that the statute under which she was convicted is not categoricallyone involvingmoral turpitude as it contains bothportionsthat involvemoral turpitudeand thosethatdo not. She further claims that her crime is analogous to the one considered inMatter ofEspinosa,10 I&N Dec. 98 (BIA 1962), where the Board held that the conviction involvedwas too broad for .all aspects to include moral turpitude. In contrast, the respondent argues, Matter ofFlores, l7I&N



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Dec. 225 (BIA 1980), relied on in our previous decision, requires the impairment or obstruction of .an importantgovernmentfunction to be considered to involvemoral turpitude. Therespondent alsocites our more recent decision inMatter ofJurado-Delgado, 24 I&N Dec 29 (BIA 2006), for the .proposition that a specific intent to mislead a government officialwas required for the crime in that.case to be considered to involve moral turpitude. The respondent argues that her conviction does.not involve a specific intent and covers a much broader range of documents than those consideredin eitherMatter ofFlores, supra, orMatter ofJurado-Delgado, supra. Matter ofEspinosa, supra, .is distingliishable from the case at hand, however, as Espinosa was decided in favor of therespondent based on the fact that he might have been convicted of his crime for making a false .statement rather than fraudulent acts.

As noted, the convictionrecordhere indicates that therespondent "withintentto defraudorharm.another . . . knowingly made a false entry in a governmental record." (Exh. 2). While a reading ofthe entire criminal code section includes both portions that involve moral turpitude and those thatdo"not; here, tliltrespOildeiii'sfelony crime involved a clear intent to"kiiowmgly defraUd or harm. .It, therefore, involves moral turpitude. See Jordan v. DeGeorge, 341 U.S. 223, 232 (1951) (statiitg"decidedCjlSesmake it plain thatcrimesin whichfraudwas an ingredienthave alwaysbeen regardedas involvingmoral turpitude''); see also Hyder v. Keisler, supra; Matter ofKochlani, 24 I&N Dec128 (BIA 2007).

We next address the respondent's arguments concerning her eligibility for a waiver ofinadmissibilityundersection212(h) oftheAct, 8U.S.C. 1182(h). The respondent becamea lawfulpermanent resident on September 20, 1996. On January 19, 1999, she was convicted of the crimediscussed above. A Notice to Appear (ponn 1-862)was issued on April 14, 2005, placing her inremoval proceedings and charging her with removability under section 237(a)(2)(A)(i) of the .Immigration andNationalityAct, 8U.S.C.1227(a)(2)(A)(i). The respondent argues thatunder ourholding inMatter ofSanchez, 17I&NDec. 218 (BIA 1980), she mayuse awaiverofinadmissibilityunder section 212(h) of the Act to remain iri the United States despite her removability. We agree.In Matter ofSanchez, we foundthat a waiver under section 212(h) could be granted nuncpro tuncto cure inadmissibility arising from a conviction, when an alien had subsequently departed and .reenteredthe United States. Under our holding in that case, the respondent, here, is eligible to applyfor a waiver of inadmissibility.

To the extentthe Department ofHomeland Security is arguing that the respondent's continuousresidence was terminated upon her commission ofher criminal offense, the provisions of section240A of the Act, relied on by the DHS, do not apply to waivers of inadmissibility under section212(h) of the Act. The respondent's continuous lawful residence remains in effect as long as therespondent maintains lawful pennanent residence. We also note that the Fifth Circuit has alsorecently held that the language in section 2l2(h) of the Act referring to "admitted" does not applyto an alien who entered the United States and later has "adjusted" to such status. See MartinEZ v.Mukasey, 519 F.3d 532 (5th Cir. 2008). And, finally, in our recent decision, Matter ofAbosi, 24I&N Dec. 204 (BIA 2007), the Board found that a returning lawful permanent resident could seeka 212(h) waiver of inadmissibility, without applying for adjustment of status. The Board held thatin cases where the respondent is a returning lawful pennanent resident charged with a ground ofinadmissibility, a grant of a 212(h) waiver of inadmissibility simply eliminates the basis for hisinadmissibility and leaves his lawful pennanent resident status intact. Id at 206.

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Based on the foregoiIig, we find that the respondent may seek a section 212(h) waiver and the record will be remanded.

ORDER: The November 27, 2006, Board decision adopting and affirming the Immigration.Judge's decision is vacated.

FURTHERORDER: The record is remanded to the Immigration Judge for consideration of therespondent's application for a waiver of inadmissibility.and the entry ofa new decision.

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IMMIG BIA 212(h) Nunc Pro Tunc