MATTER OF DELAGADILLO In Exclusion Proceedings A-13541662 Decided by Board July 21, 1975 Respondent's conviction in Mexico of the offense of fraud (fabrication of a property transfer in an unsuccessful attempt to reduce his wife's potential settlement in a divorce action) in violation of Article 367 of the Code of Social Defense of the State of Chihuahua, Mexico, is not a conviction of a crime involving moral turpitude. EXCLUDABLE: Act of 1952–—Section 212(a)(9) [8 U.S.C. 1182(a)(9)]—Ċonvicted of crime involving moral turpitude. Act of 1952-Section 212(a)(20) [8 U.S.C. 1182(a)(20)]-Immigrant without valid immigrant visa. ON BEHALF OF APPLICANT: Joseph J. Rey, Sr., Esquire 543 Magoffin Avenue El Paso, Texas 79901 In a decision dated February 16, 1973, the immigration judge granted the applicant a retroactive waiver of the documentary requirements for admission under section 211(b) of the Immigration and Nationality Act, ordered the applicant admitted to the United States, and certified his decision to us for final disposition. The decision of the immigration judge will be affirmed. The applicant is a native and citizen of Mexico. He was admitted to the United States as an immigrant in September of 1963. In 1967 he was convicted in Mexico of several crimes. On appeal, only one of the convictions was upheld. After again gaining admission to the United States, the applicant was placed in deportation proceedings. The Service at that time alleged that the applicant was deportable as an alien who had been excludable at entry because of his Mexican conviction. The immigration judge, however, found that the applicant's conviction was not for a crime involving moral turpitude, and the immigration judge terminated the deportation proceedings. The Service appealed from the immigration judge's decision. However, we never resolved that appeal because the applicant had departed the United States, had attempted to be readmitted, and had been placed in exclusion proceedings while his case was on appeal. We accordingly returned the record to the Service. In these exclusion proceedings, the Service has renewed as a ground of alleged excludability its contention that the applicant was convicted of a crime involving moral turpitude. The Service also contends that the applicant is excludable under section 212(a)(20) as an immigrant without valid documentation. The immigration judge concluded that the applicant had made several entries by presenting his Alien Registration Receipt Card (Form I-151) after lengthy absences from the United States, and that the Form I-151 was not valid as an entry document at these times. However, the immigration judge granted the applicant retroactive, or nunc pro tunc, waiver of documentary requirements under section 211(b) for these entries. The immigration judge then found that the applicant qualified for admission as a returning resident. The Service does not challenge the immigration judge's grant of the section 211(b) waiver, and our review of the record satisfies us that the immigration judge's decision was proper. The only question before us then is whether or not the applicant is excludable under section 212(a)(9) as an alien who has been convicted of a crime involving moral turpitude. There is some confusion in the record regarding the precise crime of which the applicant was convicted. The immigration judge, however, found that the conviction was under Article 367 of the Code of Social Defense of the State of Chihuahua, Mexico. The parties do not contest this finding. Article 367 of the Code of Social Defense provides: The antisocial offense of fraud is committed by the person who, deceiving another, or taking advantage of an error in which the latter may find himself, illegally takes something from him or gains an unjust enrichment. The immigration judge concluded that the statute as worded could be applied to activity which may or may not involve moral turpitude. We do not have the benefit of Mexican cases construing the provisions of Article 367. We nevertheless agree with the immigration judge that the statute appears to encompass both crimes which do, and crimes which do not involve moral turpitude. By its terms, the statute does not require the taking of another's property. It could therefore punish any act of deception used in retrieving one's own property, if the property was retrieved in a manner which Mexico deems to be illegal. Since the statute defines both crimes which do and crimes which do not involve moral turpitude, we may look to the record of conviction to determine whether moral turpitude inheres in the crime which was actually commited. See Matter of Ghunaim, 15 I. & N. Dec. 269 (BIA 1975); Matter of Grazley, 15 I. & N. Dec. 330 (BIA 1973); Matter of M-, 9 I. & N. Dec. 132 (BIA 1960); Matter of T-, 2 I. & N. Dec. 22 (BIA 1944; A.G. 1944). Furthermore, United States standards are applied in judging whether or not a foreign crime involves moral turpitude. See U.S. ex rel. McKenzie v. Savoretti, 200 F.2d 546 (C.A. 5, 1952); Mercer v. Lence, 96 F.2d 122 (C.A. 10, 1938), cert. denied, 305 U.S. 611 (1938). The Mexican appellate court opinion discusses in detail the various crimes of which the applicant was accused and convicted in the lower court. The appellate court sustained only the conviction under Article 367. The appellate court's opinion indicates that the applicant had been supporting his wife and family in Mexico, that he had reason to believe that his wife was having extramarital sexual relations in his absence, and that he fabricated a property transfer in an unsuccessful attempt to reduce his wife's potential settlement in a divorce action. We have concluded that the applicant's conduct, which in the United States would generally be only civilly actionable, was not so base or vile as to be deemed morally turpitudinous under United States standards. He has not been convicted of a crime involving moral turpitude. The decision of the immigration judge was correct. ORDER: The decision of the immigration judge is affirmed. MATTER OF PATTERSON Application for Permission to Accept Employment Decided by Acting District Director July 21, 1975 (1) Application by a nonimmigrant student for permission to accept part-time off-campus employment because of economic necessity is denied since under the provisions of 8 CFR 214.2(f)(6) he is ineligible therefore (1) because of inability to establish economic necessity when at the time of submission of the application he had sufficient funds to cover his expenses through the next two academic years, and (2) because of failure of the authorized school official to certify that the employment will not interfere with the student's ability to carry successfully a full course of study. (2) A prospective employer's inability to fill locally the position offered the applicant is not a factor germane to the consideration of a nonimmigrant student's application to accept part-time employment because of economic necessity. DISCUSSION: The applicant is a 26-year-old native and citizen of Australia who arrived in the United States on March 15, 1975, and was admitted until March 15, 1976, as a nonimmigrant student to attend Palmer College of Chiropractic, Davenport, Iowa. At the time of his admission as a student he indicated that he was financially able to support himself for the entire period of his stay in the United States while pursuing a full course of study. He had previously alleged he would have approximately $11,000 Australian, ($14,500 U.S.) by the time he departed Australia. The school indicated that the academic-year cost for tuition and fees was $1,650.00, and the average academic-year cost of living incidental expenses was estimated to be $3,800.00, for a total of $5,450.00 per academic-year. On July 10, 1975, the applicant prepared an application for permission to accept employment. He states in his application that his application does not specifically come under the criteria of employment needed because of economic necessity which arose as a result of an unforeseen change in financial circumstances, but since his tuition fees will rise $1,000 over the next three-year period, and will undoubtedly rise even more, the small remuneration from employment will cover his extra tuition cost. He states that the main reason for his application is that his prospective employer has asked him to work as they are unable to find a qualified person to do the job. His prospective employment would be in radiography in the X-Ray department at a local hospital on weekends. The applicant indicates his yearly expenses to be up $460 from the yearly expenses at the time of his initial entry as a student. The increase includes tuition, up $400, and other general personal items, up $60. The room and board amounts remain the same. He indicates no outside source of income, and that his means of support while in the United States is: "living on our savings." The authorized school official, in completing Part IV of the application certifies that the applicant is taking a full course of studies at the school, but did not certify that the employment will not interfere with the applicant's ability to carry successfully a full course of study. Title 8, Code of Federal Regulations, Part 214.2(f)(6), provides, in pertinent part, that if a student requests permission to accept part-time employment because of economic necessity, he must establish that the necessity is due to unforeseen circumstances arising subsequent to entry, and an authorized school official must certify that the part-time employment will not interfere with the student's ability to carry successfully a full course of study. The applicant has failed to establish that he has economic necessity due to unforeseen circumstances. He was to have in his possession at the time of his entry $14,500, and since he has been in the United States for four months only, he would have expended only a minor portion of that money, approximately one-third of his first year's expenses leaving him approximately $13,000 at his disposal. A student applicant for permission to accept part-time employment may not be found to have economic necessity when it is established that he has sufficient funds available to carry him through the coming years while attending school. The claim that tuition, fees, and the cost of living will "undoubtedly" rise over the coming years is purely speculative on the applicant's part and may not be considered as fact in determining whether necessity is due to unforeseen circumstances, especially in light of the fact that the applicant presumes to have sufficient funds to carry him through the next two years. The claim that the applicant would be occupying a position that cannot be filled locally is not a condition to be considered in deciding the merits of a student application for permission to accept part-time employment. The only facts to be considered are whether the applicant has established economic necessity, and whether or not the necessity arose as the result of a change in financial circumstances that could not have been foreseen by the applicant when he entered the United States. Local employment availability, or unavailability, is not a determining factor regardless of the circumstances. The applicant has not established that he has need for employment, |