Immig Bia 212(h) Nunc Pro Tunc

U.S. Department of Justice

Executive Office for Immigration Review Board ofImmigration Appeals Office ofthe Clerk 5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041

LISA S. BRODYAGA, ESQUIRE 17891 Landrum Park Road San Benito, TX 78586-0000

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

Narne:

Date of this notice: 10110/2008

Enclosed is a copy of the Board's decision and order in thc above-referenced case. Sincerely,

Donna Carr Chief Clerk

Enclosure

Panel Members: GRANT, EDWARD R. Kendall-Clark, Molly Malphrus, Garry D.

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,..

Decision ofthe Board ofImmigration Appeals.

U.S. Department of Justice Executive Office for Immigration Review Falls Church, Virginia 22041

File:

Date:

- Harlingen, TX

OCT 1 0 2008

In re: IN RENOVAL PROCEEDlNGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Lisa S. Brodyaga, Esquire

. Lisa M. Putnam Senior Attorney

APPLICATION: Termination ofproceedings; waiver ofinadrnissibility

In an order dated May 23, 2007, and received by the Board on January 25, 2008, the United States Court ofAppeals for the Fifth Circuit granted the government's unopposed motion to remand the 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 of inadmissibility under section 2l2(h) of the Immigration and Nationality Act; 8 U.S.C. § 1l82(h). We will remand the record to the Immigration Judge for consideration of the respondent's application for a waiver of inadmissibility. We first address the respondent's argument that her crime oftampering with government records is not one involving moral turpitude. The conviction record indicates that the respondent "with intent 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 the respondent was convicted indicates that it is a "misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state felony." Texas Penal Code § 37.1O(c)(1). The Fifth Circuit has repeatedly emphasized that crimes whose essential elements involve fraud or deception tend to involve moral turpitude and that crimes including dishonesty or lying as an essential 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 a vicious motive or the victim being a government entity, are not determinative; And, the court observed, "almost all other courts have held that intentionally deceiving the government involves moral 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 categorically one involving moral turpitude as it contains both portions that involve moral turpitude and those that do not. She further claims that her crime is analogous to the one considered in Matter ofEspinosa, 10 I&N Dec. 98 (BIA 1962), where the Board held that the conviction involved was 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 important government function to be considered to involve moral turpitude. The respondent also cites our more recent decision in Matter ofJurado-Delgado, 24 I&N Dec 29 (BIA 2006), for the . proposition that a specific intent to mislead a government official was 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 considered in either Matter ofFlores, supra, or Matter ofJurado-Delgado, supra. Matter ofEspinosa, supra, . is distingliishable ·from the case at hand, however, as Espinosa was decided in favor of the respondent 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 conviction record here indicates that the respondent "with intent to defraud or harm . another ... knowingly made a false entry in a governmental record." (Exh. 2). While a reading of the entire criminal code section includes both portions that involve moral turpitude and those that do"not; here, tliltrespOildeiii'sfelony crime involved a clear intent to"kiiowmgly defraUd harm.. It, therefore, involves moral turpitude. See Jordan v. DeGeorge, 341 U.S. 223, 232 (1951) (statiitg "decided CjlSes make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude''); see also Hyder v. Keisler, supra; Matter ofKochlani, 24 I&N Dec 128 (BIA 2007).

or

We next address the respondent's arguments concerning her eligibility for a waiver of inadmissibility under section 212(h) ofthe Act, 8 U.S.C. § 1182(h). The respondent became a lawful permanent resident on September 20, 1996. On January 19, 1999, she was convicted of the crime discussed above. A Notice to Appear (ponn 1-862) was issued on April 14, 2005, placing her in removal proceedings and charging her with removability under section 237(a)(2)(A)(i) of the . Immigration and Nationality Act, 8 U.S.C.§1227(a)(2)(A)(i). The respondent argues that under our holding in Matter ofSanchez, 17 I&N Dec. 218 (BIA 1980), she may use a waiver ofinadmissibility under section 212(h) of the Act to remain iri the United States despite her removability. We agree. In Matter ofSanchez, we found ·that a waiver under section 212(h) could be granted nunc pro tunc to cure inadmissibility arising from a conviction, when an alien had subsequently departed and . reentered the United States. Under our holding in that case, the respondent, here, is eligible to apply for a waiver of inadmissibility. To the extent the Department ofHomeland Security is arguing that the respondent's continuous residence was terminated upon her commission of her criminal offense, the provisions of section 240A of the Act, relied on by the DHS, do not apply to waivers of inadmissibility under section 212(h) of the Act. The respondent's continuous lawful residence remains in effect as long as the respondent maintains lawful pennanent residence. We also note that the Fifth Circuit has also recently held that the language in section 2l2(h) of the Act referring to "admitted" does not apply to 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, 24 I&N Dec. 204 (BIA 2007), the Board found that a returning lawful permanent resident could seek a 212(h) waiver of inadmissibility, without applying for adjustment of status. The Board held that in cases where the respondent is a returning lawful pennanent resident charged with a ground of inadmissibility, a grant of a 212(h) waiver of inadmissibility simply eliminates the basis for his inadmissibility 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. FURTHER ORDER: The record is remanded to the Immigration Judge for consideration ofthe respondent's application for a waiver of inadmissibility.and the entry of a new decision.

~R<.~ FORTHEBO~ ~.

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