Good law ✅— No negative treatment on recordhow we know
Decided 1965-07-01
How this case has been cited
Cited by 12 later decisions — most recently June 2007
3 federal appellate ·
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
Interim Decision #1510
MATTER or Slum
In Section 212(c) Proceedings
A-10005876
Decided by Board October 8, 1085
Au alien's application for a section 212(c) waiver can be considered by a spe-
. ciai inquiry °Myer In conjunction with an application for adjustment of status under section 245, Immigration and Nationality Act, as amended, in deportation proceedings.
The applicant, a native of England, a citizen of Great Britain,
appeals from the denial of, an application for advance permission to
return to an unrelinquished domicile pursuant to a waiver under
section 212(c) of the Immigration and Nationality Act (8 U.S.C.
1182(c)). Counsel on appeal urges that the action taken by the
District Director at New York is an abuse of discretion. He also
urges a remand of the case tb the District Director in light of additional evidence alleged to be material to the issue before us.
The applicant, a male alien 84 years of age, last entered the United
States through the port of Buffalo, New York on June 19, 1956. He
was admitted for permanent residence upon presentation of an immigration visa issued ut Toronto, Canada oil June 13, 1956.
An order to show cause in deportation proceedings was issued by
the Assistant District Director at New York on March 1, 1962. It
charges that the applicant is deportable under section 241(a) (4) of
the Immigration and Nationality Act as an alien who after entry
has been convicted of two crimes involving moral turpitude not
arising out of a single scheme of criminal misconduct. The charge
is based upon a showing that the applicant was convicted in the
Felony Court of Manhattan, New York on January 28, 1960 for the
offense of disorderly conduct in violation of section .722, subdivision
8, of the New York Penal Code. The applicant was again convicted
in the Felony Court of Manhattan, New York on February 6, 1962
for a violation of the same statute..
During the course of the hearing (p. 27) accorded the applicant
in deportation proceedings on December 8, 1964, his tlnin counsel
325
Interim Decision #1510
submitted an application for adjustment of status under section 245
of the Immigration and Nationality Act (8 U.S.C. 1255) pursuant
to a decision by the Court. of Appeals for the Second Circuit in the
case of Hans Werner Tibke v. Immigration and Naturalization
Bervice. 1 It was also stated for the record that the applicant would
apply for an exercise of the discretion contained. in section 212(e)
of the Immigration and Nationality Act in connection with his application for an adjustment of status under the provisions of section
245 (supra), (p. 28). The special inquiry officer adjourned the hearing without decision for the conduct of investigations by the Immigration Service in connection with the application. for relief under
section 245 of the Immigration and 'Nationality Act.
. An application for advance permission to return to a,nomrelinquished domicile pursuant to a waiver of the grounds of inadmissibility; under section 212(c) of the Immigration and Nationality Act
(supra) was received by the District Director at New York on January 29, 1965. The application states in substance that the 'applicant
may bo inadmissible by.reason of hiamonvictions in New York State
on January 28," 1960 and February 6, 1962 for violation of subdivision S of section 722 of the Penal Code of New York (disorderly
conduct) committed on January 28, 1960 and January 20, 1962 and
that the' -Attorney. General in his discretion, may not adjust his
,status under section "245apparently for the reason that without the
waiver
_ . he would be ineligible to receive an immigration visa and
re enter the United States, The District Director denied the appli-
-
cation;on the ground that the applicant does not warrant the favorable exercise of discretion in his case because of two - crimilial convictions within the past five yew's.
The Service maintains that counsel is attemptineto nse a deporta- .
•ion case as a -cehiele for obtaining relief .which is by statute limited.
to an exclusion proceeding.. It is their position'that a waiver under
section 212(c) of the Immigration and Nationality Act is not available to an applicant for a change of status under section 245 of the
Immigration. and Nationality Act because such an applicant is not
an alien previously lawfully admitted who temporarily proceeds
abroad voluntarily and not under an order of deportation and who
is•returning to a lawfulun.relinquished domicle of seven consecutive
years.
An applicant for adjustment of status under section 245 stands in
1
; July 9, 1964. The Tibke case holds in substance that section
245 is not limited to aliens who entered as nonimmigrants (other than alien
crewmen), and that aliens who entered as immigrants for permanent reeldence may apply for relief thereunder.
326
Interim. Decision #1510
the same position as an applicant who seeks to enter the United
States with an immigration visa for permanent residence. Such an
applicant must under the regulations submit to all of the tests as
if he were an applicant at a port of entry (8 OFR 245.6). Sine° this
_respondent, as an. applicant for relief under section 245, is subject to
all of the exclusion provisions of section 212(a), we find no valid
reason for denying him the benefits of section 212(c) on the technical
ground that he is not returning to the United States after a voluntary departure. Such a conclusion is not required by the statute and
would ignore substance for procedure. In fact, theta is a provision
in 8 CIE, 212.3 which permits an application for relief under section
212(c) to be adjudicated in a deportation proceeding.
The Notice of Appeal submitted by respondent's original counsel
urges error in. that the special inquiry officer improperly refused to
licant's application for advance perinission to return
consider the app
to an unrelinquished domicile in conjunction with the applicant's
application for an adjustment of status under section 245 (supra).
Counsel now of record has submitted evidence to this Board. that the
applicant is now married to an alleged United States citizen. Counsel maintains that this evidence warrants remanding the case to the
New York District. It is not clear whether counsel refers to a re-
,
mand to the District Director at New York or to the special inquiry
officer who held the hearing in deportation proceedings on December
8, 1964.
The proper procedure in a deportation case in which an alien applies for a waiver of a ground of inadmissibility in connection with
an application for an adjustment of his immigration status pursuant
to the provisions of section 245 of the Immigration and Nationality
Act is for the special inquiry officer to fully consider and adjudicate
the issue of &portability and the application for relief under section
245. It is also required that the special inquiry officer fully consider
and adjudicate an application for a waiver under section 212(c) of
the Immigration and Nationality Act (WU:S.C. 1182(c)) in such a
proceeding in light of the court's ruling in the Tibke case (supra).
Accordingly, we will remand the record to the special inquiry officer
for further consideration in accordance witb'the foregoing.
The respondent in this proceeding may also apply for relief under
section 212(g) of the Immigration and Nationality Act (8 U.S.O.
1182(g)) to waive his present inadmissibility provided he is lawfully
married to a United States citizen. Matter of
8 I. & N. Dec.
285
, Asst. Corn., March 20, 1959. He should be permitted to pursue
this administrative remedy in conjunction with his application for a
change of status under section 245 if he so desires.
327
Interim Decision #1510
An appropriate order will be entered remanding the case to the
special inquiry officer who after hearing and the reception of the
additional evidence submitted by the respondent shall render a decision on the issues before him without prejudice to further appeal
in the event the decision is unfavorable to the alien.
ORDER: It is directed that the case be remanded to the special
. inquiry officer for further action in accordance with the foregohig
opinion.
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