In this case, the respondent did not plead guilty in his criminal trial but
maintained his innocence and was found guilty. In the record before us, the
respondent admitted to aspects of the criminal conduct in question and
denied the explicit charges underlying his conviction.
7
The Immigration
Judge acknowledged that the respondent testified that he recognizes the
crime involved to be a serious one, for which someone should be punished.
The majority emphasizes the fact of the respondent’s responses on the lie
detector test administeredprior totrial as comparedwith histestimony before
the Immigration Judge.
8
This not only appears to contravene this Board’s
position in Matter of Roberts, supra, but the majority fails to indicate the ulti
-
mate significance of either the respondent’s statement or the results of the
test.
9
This is particularly so, in light of the fact that the majority itself
acknowledges in the same paragraph that one who claims innocence is not
categorically foreclosed from establishing that he has taken steps towards
rehabilitation. Matter of Edwards, supra.
In assessing rehabilitation, we are making “an estimate or prediction of an
individual’s future conduct.” Palacios-Torres v. INS, 995 F.2d 96, 99 (7th
Cir. 1993). The respondent and his wife are well aware of the poor judgment
and unacceptable conduct which characterized their former living situation.
The family has moved away from the area in which the circumstances giving
312
Interim Decision #3272
court told him to repent or receive a longer sentence. See also Miller v. United States, 589 F.2d
1117, 1138 (1st Cir. 1978), cert. denied, 440 U.S. 958 (1979); Scott v. United States, 419 F.2d
264 (D.C. Cir. 1969). In fact, the Scott court noted that a glib willingnessto admit guilt in order
to secure something in return may indicate quite the opposite of repentance.
7
Evidence in the record, contained in the investigating officer’s report and in a pre-trial
polygraph report, reflects that an unorthodox situation had developed in the apartment
complex, that the assaulted child was in counseling with a social worker, that she received no
parental control or guidance, that rumors of a sexual relationship between the child and the
respondent had been circulated by the child throughout the apartment complex, and that a prior
investigation had revealed no evidence of such a relationship. The respondent does not deny
having improperly touched the child or having allowed her to remain in his family’s apartment,
and he admits that he wrestled with her and even that he had, in his wife’s presence, lain on top
of her.
8
The report of the lie detector examination reveals that upon admitting having had sexual
intercourse with the complainant, the respondent explained further that the complainant, a
neighbor’s daughter, approached him in his apartment, and lay down on his bed next to him.
While I don’t doubt that the alleged sexual contact occurred, I can understand how, in the
hearing before the Immigration Judge, the respondent, not being legally trained to understand
the concept of a minor’s lack of consent, and given the unorthodox situation which preceded
this incident, would not think of his conduct necessarily as forcible sex or a sexual assault,as
the charge and conviction is worded.
9
Under the circumstances, he could honestly admit the act but deny the charge as entitled in
the record of conviction without being inconsistent or incredible. See Canales-Lopez v. INS,
supra, at 2 (Board’s denial of relief as being on account of lack of credibility rather
unacceptable, as relief cannot be denied on this basis alone, and lack of credibility for failing to
acknowledge guilt is not a separate ground supporting a denial). See also Guillen-Garcia v.
INS, supra, at 205.