During the course of the hearing, the respondent on numerous occasions, on advice of counsel, refused to comply with the special inquiry officer's directive that he respond to questions concerning his assets, income and activities (R-pp. 254-339). For example, the respondent refused to answer relevant questions concerning his criminal convictions in Italy (pp. 269-272); his entry into the United States under an assumed name (pp. 272-274); his fraudulent naturalization (pp. 276-282); his conviction in 1944 for conspiracy to commit extortion (pp. 282-284); his conviction for income tax evasion in 1957 (pp. 286-288); and the source and nature of his income over a period of 36 years (pp. 289-293-297-298).

Furthermore, the respondent gave equivocal answers to many questions which should have been within his knowledge and which we deem relevant to a determination of whether discretionary relief is warranted. He did not remember in whose names some $64,000 in Government bonds were held at the time he entered jail-"I think they were in my name or my wife . . . I don't remember." He did not remember financial transactions involving large sums of money which occured while he was in jail and which were reported on his 1961 tax returns (pp. 307-310).

When questioned as to "Where did the money come from to buy the bonds?" the respondent answered, "I don't remember buying any bonds." (pp. 311, 312) and he could not explain how he could make such large financial transactions while he was in jail (p. 316). He refused to explain where he obtained $104,000 in cash to pay his income taxes for 1948, 1949 and 1950 (p. 317). He refused to explain the nature of some $89,000 listed as miscellaneous income in his 1964 income tax returns (p. 318). He declined to furnish a break down of his race track winnings for 1964 (p. 320) and also refused to answer the question, "During 1964 did you receive payments of any kind from any person, group or organization other than the interest payments and the race track winnings listed as miscellaneous income on your 1964 income tax return?" (p. 324) He refused to bring in his personal records of the income he received during the past three years although he admitted keeping such record (p. 327). The respondent in answer to a question which referred to the fact that he won approximately $91,000 in a period of one and a half months preceding the time he went to jail testified, "I can't help it if I win in 30 or 60 days $91,000." (p. 334-335)

The respondent's refusal to furnish information which is peculiarly within his knowledge is a factor which may be considered by the special inquiry officer in exercising the Attorney General's discretion (Int. Dec. No. 1478, supra). An alien seeking a favorable

exercise of discretion cannot limit the inquiry to the favorable aspects of the case and reserve the right to be silent on the unfavorable aspects. Matter of Y-, 7 I. & N. Dec. 697, 700, B.I.A., March 26, 1958. We find on this record a sound basis for the special inquiry officer's conclusion that the respondent did not testify honestly and truthfully and was concealing facts within his knowledge.

Counsel urges that the respondent's illegal gambling activities in 1962 furnishes no basis for the special inquiry officer's conclusion that the respondent is not a person of good moral character. While it is true that section 249 of the Immigration and Nationality Act, as amended, does not require an applicant for relief to establish good moral character for any specified period of time, nevertheless, we believe that an illegal $10,000 bet on the World Series and an illegal $15,000 wager on a prize fight in 1962 are factors properly considered by the special inquiry officer in reaching a conclusion as to whether the respondent is a person of good moral character (R-pp. 130– 131). The respondent, in fact, testified that for most of his life he has derived his income principally from betting on horse races (pp97 & 98). According to the record his last profitable employment as the owner of a business was in 1922-1923 when he operated a restaurant (p. 165). We find no error on the part of the special inquiry officer in considering the respondent's illegal gambling activities as a factor in reaching a conclusion that relief is not warranted on this record.

Counsel maintains that the respondent's incarceration from July 1, 1959 until his release on parole in October of 1961 is not a factor which should be considered by the special inquiry officer in reaching a conclusion as to whether respondent is a person of good moral character because section 249 only requires a finding of present good moral character. We do not agree with counsel. Section 101(f) of the Immigration and Nationality Act (8 U.S.C. 1101 (f)) is the congressional expression of standards which must be adhered to in making a finding of good moral character "for the purpose of this Act," namely, the Immigration and Nationality Act. The statute

7Section 101 (f) of the Immigration and Nationality Act reads in part as follows: For the purposes of this Act-No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is or was (7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more, regardless of whether the offense, or offenses, for which he had been confined were committed within or without such period. (Emphasis supplied.)

provides the special inquiry officer with the alternative of making a finding of good moral character as well as an expression of whether he "regards" the person seeking discretionary relief to be a person of good moral character. It has been held that the standards set forth in section 101 (f) (supra) should be taken into consideration, along with other factors, in determining whether the requirement of good moral character has been met. Matter of P—, 8 I. & N. Dec. 167, 169 (1958).

We realize that good moral character does not mean moral excellence. We are also aware of the fact that moral standards differ from time to time and from place to place. We do not believe that a person's good moral character is lost by a single lapse over an extended period of time. This respondent, however, has made no attempt to introduce evidence which would establish that he measures up to the standard of the average American citizen as it exists today. It cannot be said that on this record the respondent's reputation would pass muster with that of an average man or that he is regarded as a person of good moral character.

While there is substantial evidence which supports the special inquiry officer's finding that the respondent is not a person of good moral character and therefore statutorily ineligible for relief under section 249, we prefer to deny relief as a matter of administrative discretion for the reason that the respondent, as an applicant for administrative grace, has not come forward with full information that is within his knowledge. The information sought has a direct bearing on his application for relief under section 249 of the Immigration and Nationality Act, as amended (supra). An applicant for the creation of a record of his lawful admission for permanent residence has the burden of satisfying the Attorney General that an exercise of discretion is warranted. Under the circumstances, he must, upon the request of the Attorney General or some one acting for him, supply such information that is within his knowledge and has a direct bearing on his eligibility for relief under the statute. We will deny the respondent's application for relief under section 249 of the Immigration and Nationality Act, as amended, as a matter of administrative discretion.

The need for a waiver of the criminal grounds of inadmissibility under section 212 (h) no longer exists because the record of the respondent's lawful admission for permanent residence will not be created. Under the circumstances, the respondent's application for relief under section 212 (h) of the Immigration and Nationality Act becomes moot.

THE APPLICATION FOR A STAY OF DEPORTATION UNDER SECTION 243(h) OF THE IMMIGRATION AND NATIONALITY ACT (8 U.S.C. 1253(h))

Pursuant to section 243 (a) of the Immigration and Nationality Act, the respondent designated England as the country to which he wished to be deported in the event an order of deportation was entered (p. 29). The order entered by the special inquiry officer on October 25, 1965 directs his deportation to England provided that country is willing to accept him, otherwise to Italy, the country of his birth and the country from which he last entered the United States.

The respondent applied for the withholding of his deportation to Italy pursuant to section 243 (h) of the Immigration and Nationality Act (8 U.S.C. 1253 (h)) (Ex. A 61). The affidavit supporting respondent's application states in substance that his criminal record in the United States and the fact that he has been described by public officials as a "racketeer" and as one of the leaders of the Chicago "Cosa Nostra" would render him subject to severe limitations and punishment if returned to Italy. He also claims that his deportation to Italy would injure him physically and mentally because he would be separated from his family and is in constant need of medical care. The evidence supporting the respondent's application for relief is fully discussed in the opinion of the special inquiry officer dated October 25, 1965, and will not be repeated. The discussion is incorporated herein by reference (pp. 47-52, special inquiry officer opinion).

The hearing on the issue of withholding deportation was conducted and the decision of the special inquiry officer was rendered prior to the effective date of the amendment of the Immigration and Nationality Act by Public Law 89-236 (December 1, 1965). Public Law 89-236 was enacted, however, on October 3, 1965. The special inquiry officer in his decision of October 25, 1965 fully considered the respondent's application for relief under section 243 (h) in light of the amended version of the statutes which became effective on December 1, 1965.

Counsel urges that if the amended version of section 243 (h) is to be applied in the instant case then respondent should be afforded an opportunity in a reopened hearing to prove that he would be persecuted for political reasons under the Italian law presently in force. Counsel proposes to show at a reopened hearing that political con

8

Section 243 (h) of the Immigration and Nationality Act (8 U.S.C. 1253 (h)) was amended by striking the term "physical persecution" and inserting in lieu thereof "persecution on account of race, religion or political opinion."

siderations decide whether Italy would exile a deportee in the respondent's position of a stateless person without any rights of Italian citizenship.

The respondent has had ample opportunity to introduce evidence concerning his claim that he would be "persecuted for political reasons." The record contains an affidavit on Italian law prepared by Dr. A. Luini del Russo (Ex. A 62) and her testimony in another case involving an application for relief under section 243 (h); the deposition of Paola Alberto Rossi taken at the American Embassy in Rome, Italy on March 1, 1965 (Ex. A 102) and an official communication from the Italian Government entered as Exhibit A 134.

It is clear from the testimony of Dr. Russo and Paola Rossi that the restrictions imposed by the Italian Public Safety Act of 1956 (Ex. A 102) apply generally to all Italian citizens and are not directed solely against criminal deportees from the United States. The "Note Verbale" from the Italian Ministry of Foreign Affairs (Ex. A 134) states in part: "A person deported from the United States for criminal activities is free to select his place of residence in Italy ... A deportee is not subject to police measures, unless he gives rise to suspicion that he is engaging in illicit activities... or associating with people of ill reputation . . . It may be useful to add in this connection that the party concerned (respondent) has the right to appeal to a court of appellate jurisdiction and eventually to the Supreme Court against the decision whereby restricted measures are assessed on him."

The Italian Foreign Ministry also stated that there were some 200 persons now in Italy who were deported from the United States of America for criminal activities. "Although many of these persons were deported for serious criminal violations committed in the United States of America, none of these 200 deportees is at present subject to any special restrictions under the Law of December 27, 1956. There is no provision of law now in force in Italy under which police restrictions can be imposed on persons who have committed crimes in other states in the past, whose conduct is now irreproachable and law abiding." (Ex. A 134)

We do not believe any purpose would be served in remanding the case to afford the respondent an opportunity to introduce additional evidence on the issue of "political persecution" in light of the official communication from the Italian Ministry of Foreign Affairs introduced in evidence as Exhibit A 134. Furthermore, the testimony of the respondent's witnesses, Dr. Russo and Paola Rossi, we believe supports the position taken by the Ministry of Foreign Affairs of "Matter of Parisi, A-8196763, B.I.A., December 7, 1960.