ZOELLNER

Interim Decision #2338




                             MATTER OF ZOELLNER
                            In Deportation Proceedings
                                      A-10316628            '
                     Decided by Board December 16, 1974
(1) Where an alien had been convicted of two crimes involving moral turpitude and was
  thereafter, in a deportation proceeding, found deportable under section 241(a)(4) of the
  hiunigration and Nationality Act, he was properly advised that he could apply for
  adjustment of status wider section 245 of the Act in conjunction with an application for a
  waiver of inad missibility under section 212(h) of the Act.
(2) The constitutionality of the immigration laws is not a proper subject for consideration
  in an administrative deportation hearing.
(3) British Honduras is included in the definition of an adjacent island to the United
  States in section 101(b)(5) of the Act. Respondent is precluded from naming British
  Honduras as fie country of deportation under section 243(a) of the Act because he is
  neither native, citizen nor resident of that country.
CHARGE:
 Order: Act of 1952—Section 241(a)(4), [8 U.S.C. 1251(a)(4)]—Convicted of two crimes
                      involving moral turpitude at any time after entry.
                •
ON BEHALF OF RESPONDENT: Glen H. Downs, Esquire
                                Legal Aid Service
                                732 S.W. Third Avenue
                                Portland, Oregon 97204


   In a decision dated October 26, 1973, the immigration judge found the
alien respondent deportable as charged and ordered his deportation to
West Germany. The respondent has appealed from that decision. The
appeal will be dismissed. .
   The respondent is a native and a citizen of Germany who entered the
United States in 1955. At the hearing, the SerVice introduced certified
records showing the following convictions relating to the respondent: (1)
September 17, 1957, in the District Court of Grayson County, Texas, for
the crime of theft over $50 (Exh. 2); (2) December 10, 1959, in the
Municipal Court of the City and County of San Francisco, California, for
the crime of petit larceny, section 488 of the California Penal Code (Exh.
3); (3) July :.2, 1972, in the Circuit Court for Multnomah County,
Oregon, for the crime of forgery in the first degree (Exh. 4). We agree
                                           162
                                                Interim Decision #2338

with the immigration judge's conclusion that the respondent's deportability under section 241(a)(4) of the Immigration and Nationality Act has
been established by clear, convincing, and unequivocal evidence.
   The immigration judge informed the respondent that he could apply
for adjustment of status under section 245 of the Act in conjunction with
an application for a waiver of inadmissibility under section 212(h) of the
Act (Tr. p. 41). No such application was submitted. The respondent is
ineligible for any other discretionary relief from deportation because of
his recent conviction.
   On appeal, counsel claims that the immigration judge should have
terminated the proceedings because section 241(a)(4) of the Act is unconstitutional. However, as the immigration judge pointed out, the
constitutionality of the immigration laws is not a proper subject for
consideration in an administrative deportation hearing. Matter of Santana, 

 (BIA 1969); Matter of L—, 

(BIA 1951).
   Counsel alSo contends that the immigration judge erred in refusing to
allow the respondent to designate British Honduras as the country of
deportaton pursuant to section 243(a) of the Act.
   Section 243(a) permits an alien to designate the country to which he
wishes to be deported, except that an alien may not designate "any
foreign territory contiguous to the United States or any island adjacent
thereto or adjacent to the United States unless such alien is a native,
citizen, subject, or national of, or had a residence in such designated
foreign contiguous territory or adjacent island." (Emphasis supplied.)
   Section 101(b)(5) of the Act defines the term "adjacent islands" as
including ". . other British, French, and Netherlands territory or
possessions in or bordering on the Caribbean Sea."
   In Matter of Longsworth, 13 I. &N. Dec. 225 (BIA 1969), we held that
British Honduras is within the section 101(b)(6) definition of "adjacent
islands," because it is a British territory bordering on the Caribbean
Sea. In Matter of Piggott, 

 *(BIA October 30, 1974),
we receded from the result reached in Matter of Longsworth with
regard to the eligibility of a native of a foreign colonial' possession to
apply for suspension of deportation under section 244 of the Act. Our
holding in Master of Piggott, had no effect on our holding in Matter of
Longsworth that British Honduras was within the section 101(b)(5)
definition of "adjacent islands."
   Since British Honduras is within the section 101(b)(5) definition of
"adjacent islands," its designation by one who is not a native, citizen,
subject, national, or resident of that country is precluded by section
243(a) of the Act. Consequently, it was proper for the immigration judge
to refuse to order deportation to British Honduras, and instead to direct
deportation to West Germany, the country in which the respondent was
                                  163
Interim Decision #2338

born. The respondent stated that he did not fear persecution if deported
to West Germany (Tr. p. 40). -
   The decision of the immigration judge was correct. The appeal will be
dismissed.
   ORDER: The appeal is dismissed.




                                 164