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Keywords

attorneyappealimmigration lawvisadeportation
attorneyappealimmigration lawvisadeportation

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Marino v. Department of Justice

Facts

Petitioner, admitted as a non-immigrant visitor, appealed a final order of deportation issued by the Board of Immigration Appeals. The Board dismissed an appeal from a decision of an immigration judge which denied petitioner's application for adjustment of status under the Immigration and Nationality Act (Act) 245, 8 U.S.C.S. 1255, to that of an alien lawfully admitted to the United States for permanent residence. Petitioner was held ineligible for adjustment of status on the sole ground that he had been convicted of a crime involving moral turpitude in Italy. Petitioner appealed his Italian conviction, but while the appeal was pending, he was granted amnesty.

Petitioner, admitted as a non-immigrant visitor, appealed a final order of deportation issued by the Board of Immigration Appeals. The Board dismissed an appeal from a decision of an immigration judge which denied petitioner's application for adjustment of status under the Immigration and Nationality Act (Act) 245, 8 U.S.C.S. 1255, to that of an alien lawfully admitted to the United States for permanent residence. Petitioner was held ineligible for adjustment of status on the sole ground that he had been convicted of a crime involving moral turpitude in Italy. Petitioner appealed his Italian conviction, but while the appeal was pending, he was granted amnesty.

Issue

The question before us on this petition for review is whether, under these unusual circumstances, Marino has been convicted of a crime involving moral turpitude within the meaning of section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9), and thus is excludable from admission to the United States and ineligible for adjustment of status under section 245.

The question before us on this petition for review is whether, under these unusual circumstances, Marino has been convicted of a crime involving moral turpitude within the meaning of section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9), and thus is excludable from admission to the United States and ineligible for adjustment of status under section 245.

Rule

Under section 245 of the Act, the status of an alien admitted to the United States as a non-immigrant visitor may be adjusted by the Attorney General, in his discretion, to that of an alien lawfully admitted for permanent residence. In order to be eligible for such relief, the alien must first be eligible to receive a visa and be admissible to the United States for permanent residence. An alien who has been convicted of a crime involving moral turpitude is generally ineligible to receive a visa and is excluded from admission under section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9).

Under section 245 of the Act, the status of an alien admitted to the United States as a non-immigrant visitor may be adjusted by the Attorney General, in his discretion, to that of an alien lawfully admitted for permanent residence. In order to be eligible for such relief, the alien must first be eligible to receive a visa and be admissible to the United States for permanent residence. An alien who has been convicted of a crime involving moral turpitude is generally ineligible to receive a visa and is excluded from admission under section 212(a)(9) of the Act, 8 U.S.C. 1182(a)(9).

Analysis

The court held that, under the unusual circumstances here, the Italian conviction lacks the finality necessary to render Marino 'convicted' of a crime within the meaning of the immigration laws. The declaration of the Tribunal of Sciacca applying the Presidential Decree of Amnesty affected Marino's 1962 conviction by extinguishing the crime and precluding him from prosecuting his appeal. Therefore, the court found that Marino was not ineligible for adjustment of status.

The court held that, under the unusual circumstances here, the Italian conviction lacks the finality necessary to render Marino 'convicted' of a crime within the meaning of the immigration laws. The declaration of the Tribunal of Sciacca applying the Presidential Decree of Amnesty affected Marino's 1962 conviction by extinguishing the crime and precluding him from prosecuting his appeal. Therefore, the court found that Marino was not ineligible for adjustment of status.

Conclusion

The court vacated the order for petitioner's deportation and the denial of his application for adjustment of status to that of an alien lawfully admitted for permanent residence on the ground of ineligibility. The case was remanded for consideration of whether adjustment of status should be granted in the discretion of the attorney general.

The court vacated the order for petitioner's deportation and the denial of his application for adjustment of status to that of an alien lawfully admitted for permanent residence on the ground of ineligibility. The case was remanded for consideration of whether adjustment of status should be granted in the discretion of the attorney general.

Who won?

Petitioner prevailed in the case because the court found that the grant of amnesty affected the finality of his conviction, allowing him to pursue adjustment of status.

Petitioner prevailed in the case because the court found that the grant of amnesty affected the finality of his conviction, allowing him to pursue adjustment of status.

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