for five days, and was fined $300. She did not pay the fine, and served 15 days in the city jail. While she had pleaded guilty to the charge, she now maintains that the articles which were found in her handbag had been placed there by a friend who had accompanied her. The special inquiry officer found that the respondent had not maintained her student status, that she had failed to comply with the conditions of her admission as a nonimmigrant student, and that her deportability had been established by clear, convincing, and unequivocal evidence. He then found the respondent ineligible for the privilege of voluntary departure, and cited Matter of Neely and Whylie, 11 I. & N. Dec. 864 (BIA, 1966), as the basis for his decision. There we had sustained the Service appeal, had found each respondent deportable, and had added that, in view of the recent conviction of a crime involving moral turpitude, each respondent was statutorily ineligible for the relief of voluntary departure, under section 101 (f) (3), since good moral character could not be established for the five-year period required under section 244 (e). Apparently, the fact that the crime involved was a petty offense was overlooked. We hereby overrule our decision in Matter of Neely and Whylie, supra, insofar as it deals with the privilege of voluntary departure. Good moral character for at least five years immediately preceding an alien's application for voluntary departure under subsection (e) of the section 244 of the Immigration and Nationality Act is a prerequisite for a grant of voluntary departure under that subsection. Section 101 (f) of the Act lists eight classes of aliens who shall not be regarded as persons of good moral character. Persons described in paragraph (9) of section 212 (a), that is, generally speaking, aliens who have been convicted of a crime involving moral turpitude, are included in the third class of persons who are precluded from establishing good moral character. Section 101 (f) (3). However, petty one-time offenders are specifically excepted in paragraph (9) of section 212(a), with the result that conviction of just one petty offense involving moral turpitude will not make an alien excludable under that section. It follows that, under section 101 (f) (3), such a conviction of a petty offense involving moral turpitude cannot preclude an alien from establishing good moral character in a deportation proceeding. We so held in Matter of M-, 7 I. & N. Dec. 147 (BIA 1956). The fact that a person is not within one of the eight classes listed under section 101 (f) does not preclude a finding that, for other reasons, the person is, or was, not of good moral character. Section 101 (f), last sentence. In other words, where specific conduct does not preclude a finding of good moral character under the enumerated categories of section 101 (f), that same conduct may nevertheless be considered in making a determination on good moral character in accordance with the provisions of the last sentence of section 101 (f). Matter of L-D-E-, 8 I. & N. Dec. 399 (BIA, 1959); Matter of Turcotte, 12 I. & N. Dec. 206 (BIA, 1967). In the case now before us, the special inquiry officer correctly found that the respondent was deportable, for even a petty offense involving criminal conduct constitutes a violation of an alien's nonimmigrant status and renders the alien deportable. Matter of A-, 6 I. & N. Dec. 762 (BIA, 1955). The exception to the general rule, in certain student cases (see Matter of C-, 9 I. & N. Dec. 100 (BIA, 1960)), does not apply here, since the special inquiry officer found that the respondent had not maintained her student status, and since, moreover, the respondent's conviction had resulted in her actual incarceration. The special inquiry officer followed our holding, now overruled, in Matter of Neely and Whylie, 11 I. & N. Dec. 864 (BIA, 1966), and found the respondent ineligible for voluntary departure. We shall remand this matter to him so that he can determine whether or not the respondent should be granted the privilege of voluntary departure under section 244 (e) of the Immigration and Nationality Act. Voluntary departure is a privilege and a matter of grace. Matter of Turcotte, 12 I. & N. Dec. 206 (BIA, 1967). While statutory eligibility is a prerequisite to a grant of voluntary departure, an alien does not discharge his burden of establishing good moral character merely by showing that a particular act in violation of the law does not preclude a finding of good moral character. Matter of Turcotte, supra. At a new hearing this respondent should be given the opportunity to show that, in spite of her recent conviction of a petty offense, she has been a person of good moral character for the required five-year period. Section 244 (e). The special inquiry officer will then determine whether or not good moral character has been established, and whether or not voluntary departure shall be authorized. ORDER: It is ordered that this matter be and hereby is remanded to the special inquiry office for further proceedings in accordance with this opinion. MATTER OF JOHNSON In Deportation Proceedings A-18436946 Decided by Board December 7, 1970 Since respondent has not established, pursuant to the provisions of section 230 of the Civil Code of California, adoption of his U.S. citizen child born out of wedlock, where the child has always lived with its natural mother and has never been received into the household of respondent, he has failed to prove the requisite familial relationship to qualify for the benefits of section 241(f) of the Immigration and Nationality Act, as amended. CHARGE: Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a) (1) ]—Immi grant not in possession of fa valid unexpired immigrant visa or other valid entry document and not exempt from possession thereof pursuant to section 212(a) (20) of the Act. ON BEHALF OF RESPONDENT: Arthur D. Cohen, Esquire Los Angeles, California 90012 The case comes forward on appeal from the decision of the special inquiry officer who found respondent deportable as charged, denied his application for voluntary departure and ordered that he be deported to British Honduras. Respondent claimed relief from deportation pursuant to section 241 (f) of the Immigration and Nationality Act but the special inquiry officer held that he had not met the eligibility requirements of that section. The respondent is a 26-year-old single male alien, a native and citizen of British Honduras who last entered the United States at El Paso, Texas on or about October 15, 1969. He testified that he entered as a passenger in an automobile that was driven by a United States citizen, and that an officer of the United States Immigration and Naturalization Service questioned the driver of the car as to his right to enter the United States but the officer did not say anything to him or ask him any questions. The respondent denies he is deportable as charged, but the fact that he is illegally in the United States and deportable is proved by evidence that is clear, unequivocal and convincing. 1 The special inquiry officer held that section 241 (f) of the Act 1 would not provide relief from deportation because respondent did not meet the eligibility requirements of that section. He determined that respondent did not have the familial ties required and that he had not procured a visa or other documentation or entry into the United States by fraud or misrepresentation. The familial relationship claimed by the respondent is that he is the adoptive father of his illegitimate child, pursuant to section 230 of the Civil Code of the State of California. The child was born in the United States on May 23, 1969 and is a United States citizen. Section 230 of the Civil Code provides as follows: Adoption of illegitimate child. The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The respondent alleges that he is the adoptive father of the child. The special inquiry officer found that the provisions of section 230 of the Civil Code were not met because the respondent had never received the child into his family and otherwise treated it as if it were his legitimate child. The child has never lived in the household of the respondent but has always been with the mother, or on occasion with a babysitter. He did not know where the mother was living (Tr. of Hearing, p. 12). Although he testified that he lived with the mother on occasion both before and after the child's birth (Tr. of Hearing, p. 22), he stated that since 1968 (before the birth) he has maintained his own home and the mother has maintained her own home (Tr. of Hearing, p. 26). He says he contributes to the support of the child, but how much and by what means are now shown. These facts simply do not constitute receiving the child into his family and treating it as if it were a legitimate child. 1 Section 241(f). The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent or a child of a United States citizen or of an alien lawfully admitted for permanent residence. Since adoption under section 230 of the Civil Code has not been established, the respondent has failed to prove the familial relationship needed to invoke the benefits of section 241 (f) of the Act. It is therefore unnecessary for us to consider whether he meets the other eligibility requirements of that provision discussed in Lee Fook Fuey v. INS. (9 Cir., #24376, September 2, 1970), now pending on petition for rehearing .* Accordingly, the appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed. * See 439 F.2d 244 (C.A. 9, 1971). |