Matter of Piroglu

Interim Decision #2838

临时决定第2838号

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: David Carliner, Esquire Gerald Hurwitz 931 Investment Building Appellate Trial Attorney 1511 K Street, N.W. Washington, D.C. 20005 Ernest H. Hupp Trial Attorney

代表被申请人： 代表移民局： David Carliner, Esquire Gerald Hurwitz 931 Investment Building 上诉审判律师 1511 K Street, N.W. Washington, D.C. 20005 Ernest H. Hupp 审判律师

In a decision dated April 3, 1978, the immigration judge found the respondent deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 1251(a)(2), as a nonimmigrant who remained longer than permitted, and denied his application for voluntary depar- ture. The respondent has appealed from that decision. The appeal will be dismissed. The respondent is a 31-year-old native and citizen of Turkey who entered the United States in 1973 as a nonimmigrant visitor for pleasure.' The record reflects that he was married to a United States

在1978年4月3日的一项决定中，移民法官认定被申请人作为非移民停留超过许可期限，依据《移民与国籍法》第241(a)(2)条，8 1251(a)(2)，可被驱逐出境，并驳回了其自愿离境申请。被申请人对该决定提出上诉。上诉将被驳回。 被申请人是31岁的土耳其本土公民，于1973年作为非移民游客入境美国。'记录显示，他曾与一名美国

Interim Decision #2838

临时决定第2838号

citizen from whom he is now divorced. It further indicates that the respondent is the father of a United States citizen child born to a woman other than his wife while he was married. At oral argument, counsel for the respondent stated that the respondent has now married the mother of his child. Included in the record is a record of conviction in the General District Court of Arlington County, Virginia, which indicates that the respondent was found guilty of discharging a firearm in public and was fined $25 plus costs on September 2, 1975. The record also contains a Judgment and Probation/Commitment Order from the United States District Court for the District of Maryland, dated June 13, 1977, which orders that a fine previously imposed on the respondent for a second conviction be suspended, that probation be terminated, and that he serve 9 months in prison. At deportation proceedings, the respondent conceded deportability a and requested voluntary departure. The immigration judge denied the respondent's application for relief from deportation on the ground that the respondent was statutorily ineligible as being precluded under section 101(f)(2) of the Act, 8 U.S.C. 1101(f)(2), from establishing good moral character because of his adultery. He further stated that he would deny voluntary departure as a matter of discretion since the respondent admitted that he had been convicted twice and that he had insufficient funds to return to Turkey. At oral argument, counsel for the respondent argued that the im- migration judge erred in finding that the respondent was statutorily ineligible far voluntary departure because he was not, in fact, guilty of committing adultery. It was further asserted that the immigration judge's ruling on discretionary grounds was also in error. After responding to these arguments, the Appellate Trial Attorney noted that the respondent had been confined in a penal institution for more than 180 days as a result of conviction. He, therefore, argued that the respondent was precluded from establishing good moral character by section 101(f)(7) of the Act. On rebuttal, counsel for the respondent contended that since the re spondent was only required to serve time in prison because of his inability to pay a fine, it would be unfair to penalize him for his poverty. Our review of the record confirms that the respondent did, in fact, admit to having served 9 months in prison. He stated that he was originally sentenced to a fine and a period of probation, but was unable

公民结婚，现已离婚。记录还表明，被申请人在婚姻存续期间与婚外女性生育了一名美国公民子女，是该子女的父亲。在口头辩论中，被申请人的律师表示，被申请人现已与其子女的母亲结婚。 记录中包括弗吉尼亚州阿灵顿县普通地区法院的一份定罪记录，显示被申请人因在公共场所开枪而被判有罪，并于1975年9月2日被处以25美元罚款及诉讼费用。记录还包含美国马里兰地区法院于1977年6月13日作出的判决和缓刑/监禁令，该命令规定暂停此前因第二次定罪对被申请人判处的罚款，终止缓刑，并令其服刑9个月。 在驱逐出境程序中，被申请人承认可被驱逐出境并请求自愿离境。移民法官驳回了被申请人的免于驱逐出境救济申请，理由是被申请人因通奸而依据该法第101(f)(2)条，8 U.S.C. 1101(f)(2)，被禁止确立良好道德品格，因此依法不具备资格。他还表示，作为自由裁量事项，他将拒绝自愿离境，因为被申请人承认其已被定罪两次，且没有足够资金返回土耳其。 在口头辩论中，被申请人的律师主张，移民法官认定被申请人依法不具备自愿离境资格有误，因为被申请人事实上并未犯通奸罪。还主张移民法官基于自由裁量理由的裁定也有错误。 在回应这些论点后，上诉审判律师指出，被申请人因定罪而被关押在刑罚机构超过180天。因此，他主张被申请人依据该法第101(f)(7)条被禁止确立良好道德品格。在反驳中，被申请人的律师争辩称，由于被申请人仅因无力支付罚款而需服刑，因贫穷而惩罚他是不公平的。 我们对记录的审查确认，被申请人确实承认曾服刑9个月。他表示，最初被判处罚款和一段缓刑期，但未能

(f) For the purposes of this Act—No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is. or was— (7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of 180 days or more, regardless of whether the offense, or offenses, for which he has been confined were commit- ted within or without such, period. The language of the statute is clear that confinement for the prescribed period resulting from a conviction bars a finding of good moral character. It makes no exception for a prison term resulting from violation of probation rather than from an original sentence to incarceration' Absent a showing that Congress intended to make such a distinction, we are unwilling to so limit the statutory mandate that persons within its scope should be barred from establishing good moral character. Moreover, we have previously noted that the ration- ale behind the statute was that a person who has served a jail term of a specified length is not worthy of special exemptions from the penalties of the immigration laws. See Matter of B—, 7 I&N Dee. 405 (BIA 1957). We, therefore, conclude that the respondent is precluded by section 101(f)(7) from establishing good moral character, which renders him ineligible for voluntary departure. Inasmuch as the respondent is statutorily ineligible for voluntary departure under section 101(f)(7) of the Act, we need not reach the issue of his ineligibility based on his alleged adultery. Accordingly, the appeal will be dismissed. ORDER. The appeal is dismissed.

(f) 为本法之目的——任何人如在必须确立良好道德品格的期间内，属于或曾经属于以下情形，则不得被视为或被认定为具有良好道德品格的人—— (7) 在该期间内因定罪而被关押在刑罚机构，累计期间为180天或以上，无论其被关押所依据的一项或多项犯罪是否发生在该期间内或之外。 该法规的语言明确表明，因定罪而在规定期间被关押，禁止作出良好道德品格的认定。该法规未对因违反缓刑而非因原判监禁而服刑的刑期作出例外。'在没有表明国会意图作出此种区分的情况下，我们不愿如此限制法定要求，即属于其范围内的人应被禁止确立良好道德品格。此外，我们此前已指出，该法规背后的理由是，已服满特定长度刑期的人不值得获得移民法处罚的特别豁免。见Matter of B—，7 I&N Dec. 405 (BIA 1957)。 因此，我们认定被申请人依据第101(f)(7)条被禁止确立良好道德品格，这使其不具备自愿离境资格。 鉴于被申请人依据该法第101(f)(7)条依法不具备自愿离境资格，我们无需涉及其基于涉嫌通奸而不具备资格的问题。因此，上诉将被驳回。 命令。上诉被驳回。