the respondent was excludable under section 212(a)(9) of the Act as an alien who prior to entry had committed a crime involving moral turpitude which was not classifiable as a petty offense. We are in agreement. Adjustment of status under section 245 is available to an alien (1) who is eligible for an immigrant visa, (2) who is admissible to the United States for permanent residence, and (3) to whom an immigrant visa is immediately available at the time his application is approved. In the present case the first and third requirements evidently have been satisfied, since the respondent is the beneficiary of an approved visa petition and, according to the latest State Department Bulletin, fifth preference visa numbers are currently available to applicants born in Italy. The only remaining question is whether he is admissible to the United States as a permanent resident. An alien applying for adjustment of status is assimilated to the position of an alien seeking to enter the United States for permanent residence, Campos v. INS, 402 F.2d 758, 760 (C.A. 9, 1968). In his appeal, the respondent asserts that the crime of which he was convicted falls within the exception for petty offenses contained in section 212(a)(9). In support of this premise, it is the respondent's contention that (1) the crime of which he was convicted was a misdemeanor; and (2) the criteria to be used to determine whether the crime is a petty offense should not be what punishment was imposed by the foreign jurisdiction but the punishment that would be imposed according to United States standards. Section 212(a) of the Act provides, in pertinent part: "Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: (9) Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense). . . . Any alien who would be excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1(3) of title 18, United States Code, by reason of the punishment actually imposed, or who would be excludable as one who admits the commission of an offense that is classifiable as a misdemeanor under the provisions of section 1(2) of title 18, United States Code, by reason of the punishment which might have been imposed upon him, may be granted a visa and admitted to the United States if otherwise admissible: Provided, That the alien has committed only one such offense. . . ." (Emphasis supplied.) The record shows that the respondent was convicted on December 6, 1948 in Palermo, Italy for theft of 300 kilos of olives valued at $35 and was sentenced to one year and nine months pursuant to Article 23, Chapter 26 of the Italian Penal Code. The respondent served 20 months of this sentence. To determine whether or not a crime committed in a foreign country involves moral turpitude, American standards must be applied, U.S. ex rel. McKenzie v. Savoretti, 200 F.2d 546 (C.A. 5, 1952; Matter of Grazley, 14 I. & N. Dec. 330 (BIA 1973). It is well settled that theft or larceny, whether grand or petty, has always been held to involve moral turpitude, Brett v. INS, 386 F.2d 439 (C.A. 2, 1967), cert. denied 392 U.S. 935 (1968); Morasch v. INS, 363 F.2d 30 (C.A. 9, 1966); Khalaf v. INS, 361 F.2d 208 (C.A. 7, 1966); U.S. ex rel. Meyer v. Day, 54 F.2d 336 (C.A. 2, 1931). We conclude that the respondent's conviction for theft is a conviction for a crime involving moral turpitude. The classification of a crime committed in a foreign country as a misdemeanor or a felony is likewise made according to United States standards; i.e., the offense is examined in the light of the maximum punishment imposable for a equivalent crime described in Title 18 of the United States Code or, if an equivalent offense is not found there, Title 22 of the District of Columbia Code, Giammario v. Hurney, 311 F.2d 285, 286 (C.A. 3, 1962); Matter of Adamo, 10 I. & N. Dec. 593, 595 (BIA 1964); Matter of T-, 6 I. & N. Dec. 508, 517 (A.G. 1955). A misdemeanor is any offense other than one punishable by death or imprisonment for a term exceeding one year, 18 U.S.C. 1(1), (2). The immigration judge found an equivalent crime in the District of Columbia Code, section 22-22-02 which reads as follows: "whoever shall feloniously take and carry away any property of value of less than $100 shall be fined not more than $200 or be imprisoned for not more than one year, or both." From the foregoing, we conclude that the crime in question was a misdemeanor. However, in this case the sentence actually imposed upon the respondent by the Italian court and the sentence actually served by him exceeded six months. Hence, the punishment actually imposed exceeds the test set out in 18 U.S.C. 1(3) and the respondent's crime may not be considered a petty offense within the exception outlined in section 212(a)(9) of the Act, Matter of M—, 8 I. & N. Dec. 453 (BIA 1959). Consequently, the immigration judge properly found the respondent excludable pursuant to the provisions of section 212(a)(9) and statutorily ineligible for adjustment of status under section 245. Accordingly, the following order will be entered. 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 60 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 CARALEKAS In Deportation Proceedings A-20168238 Decided by Board February 25, 1975 The immigration judge granted respondent's application for adjustment of status under section 245 of the Immigration and Nationality Act, as an investor who was exempt from the labor certification requirement of section 212(a)(14) of the Act, and the Service appealed. Respondent's claim for investor status was based on his investment of $80,000 in a restaurant. However, at the time he filed his application for adjustment, the restaurant enterprise was idle, and he was living off of his share of the proceeds of its sale. In order to qualify for the exemption under 8 CFR 212.8(b)(4), the enterprise must be productive of a service or commodity, and this one was not. Respondent further claimed he had sufficient income from the sale of the restaurant so he was not in the job market and did not require a labor certification. Since the record does not disclose the full extent of respondent's personal finances, or intentions with respect to future economic activity, the record will be remanded so that inquiry may be made of these matters in order to determine whether respondent is or is not subject to the labor certification requirement. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251 (a)(2)]—Nonimmigrant-remained longer. ON BEHALF OF RESPONDENT: David W. Walters, Esquire 100 Biscayne Blvd. North, #1001 Miami, Florida 33132 ON BEHALF OF SERVICE: Paul C. Vincent In a decision dated September 27, 1973, the immigration judge granted the respondent's application for adjustment of status under section 245 of the Immigration and Nationality Act. The Immigration and Naturalization Service has appealed from that decision. The record will be remanded for further proceedings. The respondent is a native of Greece and a citizen of Canada. Deportability is not in issue and the only question on appeal involves the propriety of the grant of adjustment of status. The respondent sought section 245 relief as a nonpreference immigrant alien. The immigration judge found that the respondent satisfied the labor certification requirements of section 212(a)(14) as an "investor" within the contemplation of 8 CFR 212.8(b)(4). The Service contends that the respondent does not qualify for this exemption from labor certification, and therefore that the respondent is statutorily ineligible for adjustment of status as a nonpreference immigrant. Pursuant to 8 CFR 212.8(b)(4), an "investor" must be engaged in a commercial or agricultural enterprise in order to qualify for the exemption. The Service argues that the respondent is no longer engaged in commercial activity, and therefore fails to satisfy the requirements of the regulation. The respondent was admitted to the United States as a nonimmigrant visitor in November of 1970. He became a shareholder and the principal financial backer of a closely held corporation, which was incorporated under the laws of Florida. The respondent evidently invested $80,000 in the corporation. The corporation thereafter purchased a restaurant in Florida for $125,000, and began operating the restaurant as its primary business endeavor. The corporation sold the restaurant in September of 1972 for approximately $200,000. The sale appears to have been the result of dissension among the owners of the corporation. The respondent is now the sole stockholder in the corporation, and he is evidently supporting himself with the proceeds of the sale of the restaurant. The corporation had been idle for approximately one year as of the date of the respondent's hearing, and continues to be idle as far as is reflected in the record. In Matter of Heitland, 14 I. & N. Dec. 563, (BIA 1974), we indicated that an investment in a "commercial or agricultural enterprise" should be productive of a service or commodity in order to qualify under the regulation. The respondent's investment in the corporation was of that character at one point in time; however, the corporation has been an idle entity since September of 1972. We find that the respondent is not engaged in a commercial enterprise within the meaning of the regulation. His investment is not productive of a service or commodity. Accordingly, we agree with the Service that he is not entitled to the "investor" exemption from labor certification on the facts of this case. Counsel for the respondent has advanced a second theory under which the respondent might qualify for adjustment of status. Counsel argues that the respondent made a good profit on the corporation's sale of the restaurant, that the respondent is now living on income derived from this sale, and that the respondent is not now in the job market. Accordingly, counsel contends that the respondent does not require labor certification because the respondent will not be performing skilled or unskilled labor within the purview of section 212(a)(14). Since the respondent does not appear to be earning any income, other than that generated by his property holdings, it is possible that the labor certification requirement is not applicable to him. The record, however, does not disclose the full extent of the respondent's personal finances nor does it reveal his intentions with respect to future economic activity. Thus, we cannot make an informal judgment regarding the applicability of section 212(a)(14) to the respondent. We shall therefore remand the record in order that inquiry can be made of these matters. On remand, it is possible that the respondent may again raise a claim to "investor" status. In any event, the immigration judge should render a new decision after the reopened hearing. ORDER: The record is remanded to the immigration judge for further proceedings. Louis P. Maniatis, Board Member, dissented without opinion on the question of remand. Irving A. Appleman, Board Member, abstained from consideration of this case. |