The considerations which control the medical expert do not control us. In determining whether an alien is deportable we are not permitted to become involved with issues concerning the wisdom or correctness of congressional action: our task is to see if the respondent involved is in the class that Congress had in mind as the subject of its law; it appears to us on this record that respondent is such a person.

Counsel contends the term "constitutional psychopathic inferiority" is void for vagueness. We have no jurisdiction to consider the validity of an Act of Congress.

When the Service lodged the new charge alleging that respondent was excludable at the time of his original entry, counsel moved for termination of proceedings. The motion was denied. Counsel contends this denial was error. We find no error. Although the Service was apparently abandoning its original charge, it could in the same proceeding explore any charge it deemed applicable (8 CFR 246.16(d); see Crane v. Boyd, 237 F.2d 927 (9th Cir., 1956)). The alien cannot dictate to the Government the charge which will be used in his case (Ntovas v. Ahrens, 276 F.2d 483 (7th Cir., 1960), cert. den. 364 U.S. 826).

Counsel contends it was error to deny his motion to terminate proceedings for the purpose of allowing respondent to apply for naturalization. Counsel points to the fact that the case has been pending for five years, that it was not reopened until about a year after the court had remanded the case for further administrative proceedings, that respondent has twice undergone the expense of judicial review of the original charge which has now been abandoned, that during the pendency of deportation proceedings the respondent has been unable to visit close relatives in Canada and engage in family celebrations, that he has lived under the tension of legal insecurity during this time, that he is now compelled to await the outcome and expense of further administrative proceedings, and that the morals charge against him was dismissed after trial. He points to respondent's war service, his steady employment, his efforts to gain self-control, his 20 years of residence in the United States, and the effect his deportation could have on the United States citizen employer for whom he manages a pattern and model works. The Service stating that termination of proceedings to permit naturalization is an extraordinary relief opposes such termination on the ground that the legality of his entry is in issue, and the respondent's record as a homosexual raises a question as to whether the court would naturalize him.

Further exploration of the request for termination of proceedings to enable respondent to apply for naturalization is indicated by the existence of the favorable factors, the lack of alternative relief, and the possibility that respondent is not ineligible for naturalization (see United States v. Schwarz, 82 F. Supp. 933, S.D. N.Y. (1949)).

So that we may rule upon the request for termination on the basis of a record which is more adequate than the one before us, we shall reopen proceedings to enable respondent to submit to the Service an application to file a petition for naturalization, and to enable the Service to process the application and make such recommendation as to matters of law and discretion as is deemed appropriate; the case shall then be returned to the Board with such briefs as the parties may desire to file. We shall then pass upon the motion for termination of proceedings (see Pignatello v. Attorney General of United States, 350 F.2d 719 (2d Cir. 1965); Matter of Hroncich, Int. Dec. No. 1473). Our action here should not be construed as an expression of opinion as to respondent's eligibility for naturalization or the desirability of granting his application.

ORDER: It is ordered that action on the motion be held in abeyance pending the outcome of the preliminary proceedings on the alien's application to file petition for naturalization.

245-235-67-30

MATTER OF LETHBRIDGE

In Deportation Proceedings

A-11853110

Decided by Board December 13, 1965

(1) Conviction of uttering a counterfeit obligation with intent to defraud in violation of 18 U.S.C. 472 is conviction of a crime involving moral turpitude. (2) Conviction under that portion of 18 U.S.C. 474 which makes it a crime to possess securities made after the similitude of United States securities intending to sell and use them, is not a conviction of a crime involving moral turpitude.

CHARGE:

Order: Act of 1952-Section 241(a)(4) [8 U.S.C. 1251(a) (4)]—Convicted within five years of crime and sentenced to year or more (18 U.S.C. 472, 474).

Respondent appeals from the order of the special inquiry officer requiring her deportation upon the charge stated in the caption; the appeal will be dismissed.

Respondent, a 40-year-old married female, a native of Great Britain and citizen of Canada, admitted to the United States for permanent residence on December 9, 1960 was charged with having on September 10, 1964 violated two laws of the United States (18 U.S.C. 472 and 474). Found guilty on December 16, 1964, she was sentenced on July 25, 1965 to two years' imprisonment (suspended) on each count and fined $200 on each count. The special inquiry officer found that the crimes involve moral turpitude and ordered respondent's deportation. Respondent alleging that her husband and two minor children are legal residents of the United States contends that she is not deportable because her family will suffer deprivation if she is deported; she mentions the civic duties she has fulfilled; and pointing out that she entered a plea of not guilty alleges that she was found guilty because of pressure by the United States Treasury Department, the incompetence of the jury, and her attorney's ineffective defense.

Respondent is deportable. The conviction on count one is laid under 18 U.S.C. 472 which concerns the act of uttering a counterfeit obligation with intent to defraud. This crime involves moral turpitude (Matter of P—, 6 I. & N. Dec. 795); the crime was committed within five years of her entry; respondent was sentenced to a year; conviction on this count alone sustains the charge.

Count two is laid under that portion of 18 U.S.C. 474 which makes it a crime to possess securities made after the similitude of United States securities intending to sell and use them. Language in the indictment charging knowledge of the counterfeit nature of the securities is not found in 18 U.S.C. 474 and would therefore appear to be surplusage.

In construing language similar to that in the portion of 18 U.S.C. 474 on which count two is based, the court held "Possession of the instrument being positively prohibited by statute, guilty intent is not an essential element of the offense, and there is no necessity for any specific intent or motive except the intention to use or sell" (Leib v. Halligan, 236 F. 82 (9th Cir., 1916)). The conviction based on count two is not shown to involve moral turpitude (see Matter of K-, 7 I. & N. Dec. 178) and cannot support the deportation charge. We are bound by this record of conviction and cannot go behind it. If respondent wishes to attack the validity of her conviction, she must do so in the criminal courts. As the special inquiry officer pointed out, respondent is not barred from returning to the United States by reason of her conviction and deportation, she may seek permission to reapply and a waiver under section 212 (h) of the Act (formerly section 212(g); redesignated by the Act of October 3, 1965 (79 Stat. 911)) of the ground of inadmissibility arising out of her conviction.

ORDER: It is ordered that the appeal be and the same is hereby dismissed.

MATTER OF SAFADI

In Deportation Proceedings

A-14715093

Decided by Board December 15, 1965

(1) The Service has the power to terminate the period of respondent's stay as a nonimmigrant visitor when it became aware of the fact he had no desire to depart from the United States, coupled with the fact he had separated from his citizen wife.

(2) As the right to petition for nonquota classification lies solely in the citizen spouse, and since the evidence establishes respondent's inability to acquire such status through his citizen wife who is in the process of obtaining a divorce and has refused to petition on his behalf, and a visa is not otherwise immediately available to him, he is statutorily ineligible for adjustment of status under section 245, Immigration and Nationality Act, as amended. CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Remained

longer.

The respondent, a native and citizen of Jordan, appeals from an order entered by the special inquiry officer on August 27, 1965 granting him voluntary departure in lieu of deportation as an alien who after entry as a nonimmigrant visitor has remained longer than permitted. Exceptions have been taken to the finding of deportability and to the denial of discretionary relief under section 245 of the Immigration and Nationality Act.

The respondent, a male alien, 25 years of age, last entered the United States through the port of New York on February 26, 1965. He was admitted as a temporary visitor until April 26, 1965. The order to show cause charges that the respondent is deportable under section 241(a)(2) of the Immigration and Nationality Act in that after admission as a nonimmigrant under section 101(a)(15) of the said Act he has remained in the United States for a longer time than permitted.

The respondent defends on the ground that he had been authorized by the Immigration Service to remain in the United States subse