U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

LISA S. BRODYAGA, ESQUIRE OffIce of the District CounsellHLG

17891 Landrum Park Road P.O. Box 1711
San Benito, TX 78586-0000 Harlingen, TX 78551

Narne:

Date of this notice: 10110/2008

Enclosed is a copy of the Board's decision and order in thc above-referenced case.

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
GRANT, EDWARD R.
Kendall-Clark, Molly
Malphrus, Garry D.

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,.. Decision ofthe Board ofImmigration Appeals.
U.S. Department of Justice
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: - Harlingen, TX Date:

OCT 1 0 2008
In re:

IN RENOVAL PROCEEDlNGS

APPEAL

ON BEHALF OF RESPONDENT: Lisa S. Brodyaga, Esquire

ON BEHALF OF DHS: . Lisa M. Putnam

Senior Attorney

APPLICATION: Termination ofproceedings; waiver ofinadrnissibility

In an order dated May 23, 2007, and received by the Board on January 25, 2008, the United
States Court ofAppeals for the Fifth Circuit granted the government's unopposed motion to remand
the record. In our previous decision, we had affirmed the Immigration Judge's conclusion that the .
respondent had committed a crime involving moral turpitnde and was ineligible for a waiver of
inadmissibility under section 2l2(h) of the Immigration and Nationality Act; 8 U.S.C. § 1l82(h).
We will remand the record to the Immigration Judge for consideration of the respondent's
application for a waiver of inadmissibility.

We first address the respondent's argument that her crime oftampering with government records
is not one involving moral turpitude. The conviction record indicates that the respondent "with
intent to defraud or harm another ... knowingly made a false entry in a governmental record," and
that she was convicted of a "State Jail Felony" (Exh. 2). Further, the crime under which the
respondent was convicted indicates that it is a "misdemeanor unless the actor's intent is to defraud
or harm another, in which event the offense is a state felony." Texas Penal Code § 37.1O(c)(1). The
Fifth Circuit has repeatedly emphasized that crimes whose essential elements involve fraud or
deception tend to involve moral turpitude and that crimes including dishonesty or lying as an
essential element involve moral turpifude. Hyder v. Keisler, 506 F.3d 388 (5th Cir. 2007). The
.Fifth Circuit also stated that the particwar circumstances of the crime, for example, the lack of a
vicious motive or the victim being a government entity, are not determinative; And, the court
observed, "almost all other courts have held that intentionally deceiving the government involves
moral turpitude." ld (quoting Omagah v. Ashcroft, 288 F.3d 254, 259 (5th Cir. 2002».

The respondent also argues that the statute under which she was convicted is not categorically
one involving moral turpitude as it contains both portions that involve moral turpitude and those that
do not. She further claims that her crime is analogous to the one considered in Matter ofEspinosa,
10 I&N Dec. 98 (BIA 1962), where the Board held that the conviction involved was too broad for .
all aspects to include moral turpitude. In contrast, the respondent argues, Matter ofFlores, l7I&N

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Dec. 225 (BIA 1980), relied on in our previous decision, requires the impairment or obstruction of .
an important government function to be considered to involve moral turpitude. The respondent also
cites our more recent decision in Matter ofJurado-Delgado, 24 I&N Dec 29 (BIA 2006), for the .
proposition that a specific intent to mislead a government official was required for the crime in that.
case to be considered to involve moral turpitude. The respondent argues that her conviction does.
not involve a specific intent and covers a much broader range of documents than those considered
in either Matter ofFlores, supra, or Matter ofJurado-Delgado, supra. Matter ofEspinosa, supra, .
is distingliishable ·from the case at hand, however, as Espinosa was decided in favor of the
respondent based on the fact that he might have been convicted of his crime for making a false .
statement rather than fraudulent acts.

As noted, the conviction record here indicates that the respondent "with intent to defraud or harm .
another ... knowingly made a false entry in a governmental record." (Exh. 2). While a reading of
the entire criminal code section includes both portions that involve moral turpitude and those that
or
do"not; here, tliltrespOildeiii'sfelony crime involved a clear intent to"kiiowmgly defraUd harm..
It, therefore, involves moral turpitude. See Jordan v. DeGeorge, 341 U.S. 223, 232 (1951) (statiitg
"decided CjlSes make it plain that crimes in which fraud was an ingredient have always been regarded
as involving moral turpitude''); see also Hyder v. Keisler, supra; Matter ofKochlani, 24 I&N Dec
128 (BIA 2007).

We next address the respondent's arguments concerning her eligibility for a waiver of
inadmissibility under section 212(h) ofthe Act, 8 U.S.C. § 1182(h). The respondent became a lawful
permanent resident on September 20, 1996. On January 19, 1999, she was convicted of the crime
discussed above. A Notice to Appear (ponn 1-862) was issued on April 14, 2005, placing her in
removal proceedings and charging her with removability under section 237(a)(2)(A)(i) of the .
Immigration and Nationality Act, 8 U.S.C.§1227(a)(2)(A)(i). The respondent argues that under our
holding in Matter ofSanchez, 17 I&N Dec. 218 (BIA 1980), she may use a waiver ofinadmissibility
under section 212(h) of the Act to remain iri the United States despite her removability. We agree.
In Matter ofSanchez, we found ·that a waiver under section 212(h) could be granted nunc pro tunc
to cure inadmissibility arising from a conviction, when an alien had subsequently departed and .
reentered the United States. Under our holding in that case, the respondent, here, is eligible to apply
for a waiver of inadmissibility.

To the extent the Department ofHomeland Security is arguing that the respondent's continuous
residence was terminated upon her commission of her criminal offense, the provisions of section
240A of the Act, relied on by the DHS, do not apply to waivers of inadmissibility under section
212(h) of the Act. The respondent's continuous lawful residence remains in effect as long as the
respondent maintains lawful pennanent residence. We also note that the Fifth Circuit has also
recently held that the language in section 2l2(h) of the Act referring to "admitted" does not apply
to an alien who entered the United States and later has "adjusted" to such status. See MartinEZ v.
Mukasey, 519 F.3d 532 (5th Cir. 2008). And, finally, in our recent decision, Matter ofAbosi, 24
I&N Dec. 204 (BIA 2007), the Board found that a returning lawful permanent resident could seek
a 212(h) waiver of inadmissibility, without applying for adjustment of status. The Board held that
in cases where the respondent is a returning lawful pennanent resident charged with a ground of
inadmissibility, a grant of a 212(h) waiver of inadmissibility simply eliminates the basis for his
inadmissibility and leaves his lawful pennanent resident status intact. Id at 206.

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 Based on the foregoiIig, we find that the respondent may seek a section 212(h) waiver and the •
record will be remanded.

ORDER: The November 27, 2006, Board decision adopting and affirming the Immigration.
Judge's decision is vacated.

FURTHER ORDER: The record is remanded to the Immigration Judge for consideration ofthe
respondent's application for a waiver of inadmissibility.and the entry of a new decision.

~R<.~
FORTHEBO~ ~. __ ...

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