MOSQUEDA

                                                    Interim Decision #2127




                           MATTER OF MOSQUEDA

                         In Section 223 Proceedings

                                   A-12810791

          Decided by Regional Commissioner March 1, 1972
Application for issuance of a reentry permit is denied as a matter of discretion
 pursuant to the provisions of section 223(b) of the Immigration and Nationality Act where the applicant would be executing an outstanding order of
 deportation upon his departure from the United States and his status as an
 alien lawfully admitted for permanent residence would be changed thereby.
ON BEHALF OF APPLICANT: Joseph W. Solomon, Esquire
                      1'7510 N.E. Eighth Place
                      Miami, Florida 33162


  The application for a reentry permit was denied by the District
Director, Miami, Florida and is now considered on appeal.
  The applicant is a 46-year-old native and citizen of Cuba. He was
paroled into the United States on October 18, 1962 and adjusted to
permanent resident status on December 5, 1964 under 

He was convicted on March 27, 1969 of unlawful possession and
unlawful sale of marijuana and sentenced to two years in a
penitentiary. On the basis of these convictions he was found by a
Special Inquiry Officer to be deportable from the United States
and was ordered to be deported to Cuba. He applied under section
243(h) of the Immigration and Nationality Act, as amended, for
relief from deportation and it was granted to him. On January 18,
1971 a warrant of deportation was issued but at the same time he
was notified that his deportation to Cuba would not be effected at
that time. Section 243(h) reads as follows:
  The Attorney General is authorized to withhold deportation of any alien
  within the United States to any country in which in his opinion the alien
  would be subject to persecution on account of race, religion, or political opinion
  and for such period of time as he deems to be necessary for such reason.
  The applicant desires to visit sick relatives in Costa Rica. He is
presently in the United States and has not been deported. However, section 101(g) of the Immigration and Nationality Act and
regulations, 8 CFR 243.5, provide that any alien who has departed
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 from the United States while an order of deportation is outstanding shall be considered to have been deported in pursuance of law.
 Section 243(h) protects him from deportation to a country where
 he would be subject to persecution, which in his case is Cuba. If he
 departs to Costa Rica, he will deport himself.
   It is noted, in passing, that the applicant would be ineligible for
 an immigrant visa and would be excludable from admission to the
 United States under section 212(aX23) of the Immigration and
 Nationality Act, as amended, as an alien who has been convicted
 of possession and sale of marijuana. Consideration has been given
 to the possibility that the applicant might qualify for a waiver of
that ground of inadmissibility pursuant to section 212(c) of the Act.
 However, that section clearly states that its provisions may be
invoked only on behalf of an alien "lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and
not under an order of deportation. . ..". (Emphasis supplied.) As
indicated above, the applicant would be proceeding abroad under
 an order of deportation. Accordingly, there is no procedure by
which he could overcome his excludability under section 212(a)(23)
 of the Act at this time. He would also be excludable under section
 212(aX17) of the Act as an alien who has been deported, unless he
is given permission to reapply. However, it would be inappropriate
 as it would serve no useful purpose to grant him such permission,
 since it is clear that this alien could not qualify for reentry as an
immigrant if he left the United States (Matter of Martinez-Torres,
 

). Ordinarily, however, the fact that an alien
would be inadmissible upon his return to the United States with a
reentry permit would not, in and of itself, be grounds for denial of
 an application therefor.
   There are other factors requiring consideration in the instant
application for a reentry permit under section 223 of the Act. That
section provides that any alien "lawfully admitted for permanent
residence" who intends to depart from the United States temporarily may apply for such document. If the permit is issued, in the
absence of fraud or misrepresentation on the applicant's part, the
rightful holder must be recognized as an alien lawfully admitted
for permanent residence who is returning from a temporary visit
abroad, when he presents the unexpired permit upon his return to
the United States (Matter of V--, 

).
   The term "lawfully admitted for permanent residence" is defined in section 101(a)(20) of the Act as "the status of having been
lawfully accorded the privilege of residing permanently in the
United States as an immigrant in accordance with the immigration laws, such status not having changed". (Emphasis supplied.) In
Matter of S—, 

, it was held that the status of an

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alien (such as the applicant herein) who was lawfully admitted for
permanent residence, has not changed within the meaning of that
definition by reason of the fact that he had subsequently become
deportable. Therefore, the application in the instant case may not
be denied on the ground that the applicant is no longer an alien
"lawfully admitted for permanent residence".
   However, once the applicant departs and thereby executes the
outstanding order of deportation, his status will have changed and
he may no longer be considered an alien "lawfully admitted for
permanent residence" within the meaning of section 101(a)(20) of
the Act. It would indeed be a contradiction to issue a reentry
permit to the applicant which, pursuant to Matter of V , supra,
                                                           —


would require the Service to recognize him as a lawful permanent
resident upon his return from a temporary visit abroad, with the
knowledge that the applicant will have forfeited that status upon
his departure under the outstanding order of deportation.
   Section 223(b) of the Act specifically provides for the exercise of
discretion in issuing a reentry permit. Under the circumstances
described above, denial of the application as a matter of discretion
is warranted.
  ORDER: It is ordered that the appeal be and the same is hereby
dismissed.




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