MARTIN-ARENCIBIA

13 I. & N. Dec. 166

• Court: Board of Immigration Appeals
• Decided: July 1, 1969
• Docket: 1946
• Status: Published

Opinion

Interim Decision #1946

MATTER OF MARTIN-ARENCIBIA

In Adjustment of Status Proceedings A-12804725 Decided by Regional Commissioner January 29, 1969 Applicant's conviction for murder dote not prciludo hint from establishing statutory eligibility for adjustment of status under section 1 of the Act of November 2, 1966 because ineligible to citizenship, since such conviction does not bring him within the excluding provisions of section 212(a) (22) of the Immigration and Nationality Act relating to aliens "ineligible to citizenship" as that term is defined in section 101(a) (19) of the Act.

This matter comes forward by certification from the District Director who denied the application on the ground that the appli- cant, by reason of his conviction for murder, is ineligible for United States citizenship and excludable from the United States under section 212 (a) (22) of the Immigration and Nationality Act, as amended. The record relates to a 51-year-old married male native and cit- izen of Cuba whose wife is a lawful permanent resident alien. He last arrived in the United States on May 29, 1963 at Key West, Florida, and was paroled into the United States for an indefinite period of time as a refugee from the political regime in Cuba. In a statement made June 28, 1963, the applicant admitted to having been found guilty and convicted of murder in Havana, Cuba, in June, 1958. The applicant also stated that in 1962 he received treatment by a psychiatrist. The applicant has applied for adjustment of status pursuant to the provisions of section 1 of the Act of November 2, 1966 which states "That, notwithstanding the provisions of section 245 (c) of the Immigration and Nationality Act, the status. of any alien who is a native or citizen of Cuba and who has been inspected and ad- mitted or paroled into the United States subsequent to January 1, 1959 and has been physically present in the United States for at least two years, may be adjusted by the Attorney General, in his

166 Interim Decision 4t1946 discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence." The District Director, in arriving at his decision that the appli- cant is ineligible for United States citizenship and excludable under section 212(a) (22) of the Act, premises his conclusion on the grounds that under section 101 (f) (8) of the Act the applicant cannot be found to be a person of good moral character during the period in which good moral character is required to be estab- lished because he is "one who at any time has been convicted of murder". Moreover, pursuant to section 316 (a) (3) of the Act, which states in pertinent part, "No person except as otherwise provided in this title shall be naturalized unless such petitioner . during all the periods referred to in this subsection has been and still is a person of good moral character", the applicant may not be naturalized and is, so reasons the District Director, ineligi- ble to citizenship. We cannot agree with the District Director's reasoning which would, by administrative fiat, add to the classes of aliens declared by the Congress in section 212 of the Act to be ineligible to re- ceive visas. It is true that the applicant, as a convicted murderer, is by Congressional mandate, pursuant to the sections of the Act cited by the District Director, barred from United States citizen- ship. However, that fact does not bring him within the classes of aliens "ineligible to citizenship" as used in section 212(a) (22) and defined in section 101 (a) (19) of the Act. The definition is un- ambiguous, but if clarification were needed the legislative history of the Act contains the following unequivocal statement: "The term 'ineligible to citizenship' as defined in section 101 (a) (19) is confined in its reference to such aliens as draft evaders, avoiders, or deserters." (1952 U.S. Code, Cong. and Admin. News, p. 1653, 1684.) Also see Matter of D—E—, 6 I. & N. Dec. 698. Accord- ingly, the District Director's finding of statutory ineligibility under section 212 (a) (22) will not be upheld. The applicant, by his own admission, has been convicted of a crime involving moral turpitude, i.e., murder, and is, therefore, excludable under section 212 (a) (9) of the Act. The spouse of the applicant is a lawful permanent resident of the United States. Therefore, the requisite relationship exists on which to base an application for waiver of excludability to be considered by the District Director in the exercise of his discretion. Conceding the possibility of a waiver of the ground of excluda- bility under 212 (a) (9) being granted, there still remains the question of admissibility on medical grounds in view of the appli- 167 Interim Decision #1946 cant's prior psychiatric treatment. The application will be re- manded for further inquiry into the facts and, thereafter, recon- sideration by the District Director. ORDER: It is ordered the decision of the District Director be overruled and the ease remanded for action not inconsistent with the foregoing.