General that he is not inadmissible under Section 212(a) insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens, and he establishes that he

(a) entered the United States prior to June 28, 1940;

(b) has had his residence in the United States continuously since such entry;

(c) is a person of good moral character; and

(d) is not ineligible to citizenship.

The predecessor statute to section 249 was the Act of March 2, 1929; its purpose was to provide relief for aliens who entered the United States prior to July 1, 1924, (now June 28, 1940) where there was inability to locate a record of their permanent admission in comformity with the immigration law at the time of their entry. The Act of June 29, 1906, required that a registry be made of certain facts concerning each alien arriving in the United States and that "a certificate of such entry with the particulars thereof" be granted to each alien. Section 249, and its predecessor statutes was passed in order to permit the naturalization, at the discretion of the government, of aliens who did not possess this certificate of registry-a certificate which was required for naturalization. In short, section 249 is an ameliorative provision; it appears to have been designed to aid a person who has formed a substantial tie to the United States and who should not be automatically denied naturalization because of his inability to furnish the certificate.2

The amendments adopted in 1958 have enlarged the impact and significance of the registry proceeding and have expanded the number who can qualify. The major revision in 1958 advanced the cut off date to June 28, 1940 (the effective date of the Alien Registration Act of 1940, 54 Stat. 670), and eliminated the complete disqualification of those subject to deportation. Instead, the 1958 amendment disqualified only those inadmissible for certain aggravated grounds specified therein. Elimination of the disqualification of deportables has made this procedure for administrative adjustment of status available to many who previously were deportable as overstayed nonimmigrants or as illegal entrants.3

The 1952 Act in its original form, and prior enactments, barred relief to aliens who were deportable. This limitation was revised by the 1958 amendment, which withholds registry only from aliens who are inadmissible to the United States on criminal, prostitution, subversive, narcotics, or aliens smuggling grounds. This means that re

'Sit Jay Sing v. Nice, 182 F. Supp. 292 (N.D. Cal., S.D. 1960), aff'd 287 F.2d 561 (C.A. 9, 1961); 2 U.S. Code Cong. Adm. News (85th Cong., 2d Sess., 1958) p. 3349.

Gordon & Rosenfield, Immigration Law and Procedure (1959), section 7.6, p. 735.

lief is available to aliens otherwise qualified under the statute, who are deportable for entry without proper inspection or documents or who overstayed the period or violated the terms of temporary entry.*

The statutory requirement in section 249 as amended, that there be no record of a lawful admission, is satisfied when there exists a record of admission which however is not lawful, ab initio as when an alien is admitted in a nonquota immigrant status to which he was not entitled."

Such a situation, however, does not apply to the instant case, where the requirement in the statute, that there be no record of a lawful admission, has not been met because there does exist such a record of lawful admission and the respondent has thereafter become subject to deportation on grounds arising subsequent to such admission. The fact that an alien lawfully admitted for permanent residence subsequently became deportable for causes arising after entry does not prevent the exercise of the discretion contained in section 212 (c) of the Immigration and Nationality Act, which deals with discretionary relief for an alien lawfully admitted for permanent residence, for the reason that the status of such an alien did not change because of his subsequent deportability. It has been held that a record of prior lawful admission did not preclude an adjustment of immigration status under section 249 where such record of lawful admission existed but was vitiated by a subsequent illegal entry, but in that case it was pointed out that the alien's departure and subsequent illegal entry without inspection was not the result of exclusion or expulsion proceedings, his absence was temporary, and he was not a member of one of the excludable classes enumerated in section 249.7

In the instant case, the application for registry pursuant to section 249 of the Immigration and Nationality Act, as amended, is not available for the reason that there exists a record of lawful entry which has not been vitiated by the respondent's subsequent deportability on criminal grounds. The appeal from the order of the special inquiry officer denying the motion to reopen under the provisions of section 249 of the Immigration and Nationality Act, as amended, will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed.

* Idem, p. 738.

5 Matter of S-, 8 I. & N. Dec. 288; Cf. Matter of R-E-, Int. Dec. No. 1110, where section 212 (c) could not be used to aid a section 249 adjustment where no record of entry could be found.

"Matter of S-, 6 I. & N. Dec. 392.

Matter of R-, 8 I. & N. Dec. 598.

MATTER OF MEDINA-LOPEZ

In DEPORTATION Proceedings

A-11809668

Decided by Board July 20, 1962

The crimes of robo (theft of $5.00 from the person) coupled with lesiones (assault) in violation of Articles 288 and 367 of the Penal Code of Mexico, constitute the equivalent of robbery as defined in the District of Columbia Code. Since robbery carries a penalty of more than a year, a petty offense is not involved; and respondent is not eligible for the exemption contained in section 212 (a) (9) of the 1952 Act, as amended.

CHARGES:

Order: Sec. 241 (a) (1), I. & N. Act (8 U.S.C. 1251(a) (1)) -Excludable at time of entry-crime, conviction (section 212 (a) (9) of the Act).

Sec. 241 (a) (1), I. & N. Act (8 U.S.C. 1251(a)(1))—Excludable at time of entry-Procured visa by fraud or by willfully misrepresenting a material fact (section 212 (a) (19) of the Act.)

This is an appeal from the order of the special inquiry officer requiring respondent's deportation upon the charges stated above. The appeal will be dismissed.

The issue is whether respondent has been convicted of a petty offense, or of a crime which is not a petty offense.

Respondent, a 30-year-old single male, a native and citizen of Mexico, was admitted to the United States for permanent residence on April 22, 1959, upon surrender of an immigrant visa issued on April 20, 1959. The Service charges that this visa was obtained by fraud in that respondent concealed the fact that he had been convicted of crimes in Mexico. The Service contends that when the respondent last entered the United States on March 30, 1961, after a short visit to Mexico he was excludable as one who had obtained a visa by fraud and as one who had committed crimes involving moral turpitude prior to entry.

On January 31, 1956, respondent was convicted by a court in Mexico of robo (he had taken $5.00 from the person of another without his consent) and lesiones (assault) in violation, respectively, of articles

288 and 367 of the Penal Code of Mexico.1 On April 20, 1956, he was sentenced to six months imprisonment for the robo and two months for the lesiones. Sentence was suspended, apparently upon the payment of a fine of 50 pesos and restitution of the $5.00 taken.

The record reveals that in a pretrial confession, respondent stated that he and another arranged to rob an individual in whose car they were riding, and that they did assault him and take his money from him. On the trial, the respondent stated that the individual with whom he and his companion had been riding refused to return them to their homes and they had taken the $5.00 from him so they could return to their homes, but they had not struck him. The individual concerned testified that respondent and his friend had assaulted and robbed him of the $5.00.

The special inquiry officer found that the conviction for robo was one involving moral turpitude because a permanent taking of the property of another was involved. He ruled that the lesiones required a consideration of the purpose for which the assault was committed, that the purpose established by the record was robbery, and that moral turpitude was, therefore, involved (Matter of L-, 2 I. & N. Dec. 54). The special inquiry officer ruled that since the respondent had been convicted of two crimes involving moral turpitude, the petty offense rule did not apply and respondent had been inadmissible to the United States at the time the visa was issued to him.

Counsel contends that the convictions should be considered as conviction for one offense, for only one act was involved. Counsel contends that if respondent is considered as having committed only one offense that offense should be robo, the most serious aspect of the criminal act. In the instant case, he contends, the robo would be a petty larceny since only $5.00 was involved, and since a petty offense is involved, respondent is not excludable. Counsel contends that to consider respondent as having been convicted of robo and the intent to commit robo, as he believes the special inquiry officer has done, is contradictory and unjustified. In the alternative, counsel argues that if respondent must be considered as having been convicted of two crimes, he should be considered as having been convicted of theft or petty larceny, a petty offense, and assault, a crime which does not involve moral turpitude, thus calling for the conclusion that the re

1Article 288-Under the designation of lesiones is comprised not only of wounds, scarring, contusions, fractures, dislocations, burns, but also all alteration of health and whatever other damage which leaves a material mark on the human body, if said effects are produced by external causes.

Article 367-He commits the crime of robo who takes possession of another's personalty without right and without the consent of the person who can dispose of it lawfully. (Ex. 5C).

spondent was not inadmissible to the United States by reason of the conviction. In opposition, the examining officer argues that there was a conviction for two distinct offenses, but that the lesiones must be considered in connection with the commission of robo and, therefore, involves moral turpitude.

In determining whether a foreign conviction is a petty offense within section 212(a) (9) of the Immigration and Nationality Act (8 U.S.C. 1182 (a) (9), formerly section 4 of the Act of September 3, 1954), the conviction must be examined in light of a similar offense "if committed in the United States" (Matter of T-, 6 I. & N. Dec. 508). The crime committed by the respondent, the taking of property from the person of another by force, describes the crime known as robbery in the United States. If the respondent had not been convicted by the Mexican authorities, but at the border when seeking admission had been questioned concerning his commission of crime, and had revealed the facts which are contained in the record of convictions, he could have been excluded as one who admitted commission of robbery or the essential elements of that crime. Here we have a conviction, and must be guided by what the court considered the respondent had done rather than by what he said he had done. The court chose to punish the respondent for two separate offenses-robo, the taking of property and lesiones, an assault. However, this record clearly establishes that the taking of property and the assault arose out of one incident. The assault was for the purpose of taking property from the person of another. It appears to us that the respondent's convictions arising as they do out of a single scheme of conduct amount to what in the District of Columbia Code is described as robbery in the following terms:

Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery, and any person convicted thereof shall suffer imprisonment for not less than six months nor more than 15 years. (Title 22, section 2901 of the District of Columbia Code (1961))

We believe respondent's conviction must be measured by the definition of robbery in the District of Columbia Code. Since the District of Columbia Code provides for a penalty of more than a year for the crime of robbery, a petty offense is not involved. Respondent's conviction made him ineligible for the issuance of a visa and inadmissible to the United States. The first charge is therefore sustained.2

"If there had been no conviction for lesiones and the respondent had taken the money from another against his will even without force, the crime of robbery as defined in the District of Columbia Code would have been committed (see, Spencer v. United States, 116 F. 2d 801 (D.C. Cir.)).