would not obtain employment in the United States. That showing was essential because an alien, such as that respondent, who seeks to avoid the labor certification requirements of section 212(a)(14), must establish that she does not intend to enter the labor market in the United States and that she will not have to seek employment in the foreseeable future.1 The respondent herein bears this same burden as she wishes to attain lawful permanent resident status without issuance of a labor certification.

An aged, handicapped, or otherwise dependent relative who is the member of the household of a United States citizen or a lawful permanent resident may be able to establish exemption from the requirements of section 212(a)(14). Relevant evidence in such cases includes matters regarding the respondent's age and health, her own financial status or that of the family that will support her, and the closeness and length of the familial relationships involved. Where a person is of an age or physical condition which would not preclude working, however, there is a presumption that employment will occur and the burden will be on the respondent to overcome this presumption.

If the immigration judge here had been satisfied that this respondent had established that she did not intend and would not be obliged to seek employment in this country in the foreseeable future, then he would have been correct, and yet consistent with Fulgencio, in holding her to be exempt from the labor certification requirements of section 212(a)14). On this record, however, the objective indications are the other way. Although the respondent in this case has not been previously employed, she is in good health and is potentially employable for years to come. She is not financially independent. In fact, she has very little means and without her son's assistance would be forced either to work or to rely on public assistance. There is doubt as to how long she can or will rely on her son and daughter-in-law, a family of modest means, for total economic support. As noted by the immigration judge, the respondent is now sharing a one-bedroom apartment with her son and his family, her son is forced to work an 80-hour week, and there is at least some question as to whether he could provide for all his mother's expenses even at the time of the deportation hearing.

Under these circumstances, we find the immigration judge's conclusion that the respondent has failed to establish that she will not enter the United States labor market to have been proper. Thus, she has not demonstrated that she is entitled to an exemption from the labor certifi

1

An applicant for adjustment of status is in a comparable position to an applicant before an American consular officer abroad seeking issuance of an immigrant visa. See 22 C.F.R. 42.91(a)(14)(ii)(a); Part III of 9 Foreign Affairs Manual, 22 C.F.R. 42.91(a)(14), Note 1.1.

cation requirement. Accordingly, eligibility for adjustment of status has not been established and the appeal must be dismissed.

ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the immigration judge's order, the respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the District Director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge's order.

MATTER OF ROBINSON

In Deportation Proceedings

A-22393943

Decided by Board June 13, 1979

(1) Although there is no "judgment of conviction" under the laws of California when the sentence is suspended and probation imposed, an adjudication of guilt followed by a suspended sentence and probationary period is sufficient to subject a person to deportation on the basis that he has been convicted. Gutierrez v. INS, 323 F.2d 593 (9 Cir. 1963).

(2) Willful misapplication of funds of a savings and loan association in violation of 18 U.S.C. 657 includes the element of intent to defraud and therefore involves moral turpitude despite omission of the element of intent to defraud from the statute. Matter of Batten, 11 I. & N. Dec. 271 (BIA 1965), followed.

CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant visitorremained longer than permitted

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

The respondent has appealed from a decision of the immigration judge dated October 31, 1977, in which he found the respondent deportable upon her own admission under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant who remained in the United States longer than permitted. He also denied her applications for suspension of deportation under section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1), and for voluntary departure. The respondent has appealed only from the immigration judge's denial of discretionary relief. The appeal will be dismissed.

The respondent is a 34-year-old native and citizen of Panama who entered the United States on March 20, 1970, as a nonimmigrant visitor. On December 14, 1976, she pled guilty in the United States District Court of the Central District of California to a charge of misapplication

of funds of a savings and loan association in violation of 18 U.S.C. 657. The respondent was adjudged to be guilty as charged and convicted, but imposition of sentence was suspended. She was required to be on probation for a period of two years and to make restitution of the misapplied funds.

The immigration judge denied both of the respondent's applications for discretionary relief on the ground that her conviction of a crime of moral turpitude within the last five years precluded a finding of good moral character.

On appeal, the respondent contends that she was not, in fact, convicted of a crime since imposition of sentence was suspended, and that the crime with which she was charged was not one involving moral turpitude, since the indictment contained no allegation of fraud.

The respondent cites our decision in Matter of Amesquita, Interim Decision 2608 (BIA 1977), in which we recognized that there is no "judgment of conviction" under the laws of California when a court chooses to "suspend, or refrain from, the pronouncement of judgment, subject to the administration of the probation laws." However, in that case, we also stated that such a dispositional order following an ascertainment of guilt would clearly support a finding of deportability. As authority for that proposition, we cited Gutierrez v. INS, 323 F.2d 593 (9 Cir. 1963), in which the terms "convicted" and "judgment of conviction," as applied under California law, were distinguished. It was determined in that case that a person was "convicted" after entry of a plea of guilty or a verdict of guilty by a jury, but that there was no “judgment of conviction" until a sentence was imposed. The court thereupon held that an adjudication of guilt followed by suspension of sentence and imposition of probation was sufficient to subject a person to deportation on the basis that he had been convicted.

In Matter of Varagianis, Interim Decision 2537 (BIA 1976), we held that a conviction exists for immigration purposes when (1) there has been a judicial finding of guilt, (2) the court takes action which removes the case from the category of those which are (actually or in theory) pending for consideration by the court-the court orders the defendant fined, or incarcerated or the court suspends sentence, (3) the action of the court is considered a conviction by the state for at least some purpose. See also Matter of Pikkarainen, 10 I. & N. Dec. 401 (BIA 1963); Matter of L-R-, 8 I. & N. Dec. 269 (BIA 1959).

Since in the respondent's case there was an adjudication of guilt and the sentence was suspended, which under the laws of California constitutes a conviction, we conclude that the respondent has been convicted for purposes of the immigration laws.

The respondent also argues that the crime of misapplication of funds is not one involving moral turpitude because the statute upon which the

indictment is based fails to include the element of fraud. In Matter of Batten, 11 I. & N. Dec. 271 (BIA 1965), we specifically held that a crime charging the defendant with misapplication of funds includes the element of intent to defraud and, therefore, involves moral turpitude despite omission of the element of intent from the statute. Although the respondent was convicted under 18 U.S.C. 657 for willful misapplication of funds from a savings and loan association, we find that the statute involved in the Batten decision, 18 U.S.C. 656, dealing with embezzlement from banks, is so similar as to render that ruling applicable to the instant case. Therefore, we conclude that the crime of which the respondent was convicted is one involving moral turpitude, and we agree with the determination of the immigration judge that the respondent cannot be considered to be a person of good moral character. See section 101(f)(3) of the Act, 8 U.S.C. 1101(f)(3).

Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.