LOK

Interim Decision #2509




                                  MATTER oP Lox
                            In Deportation Proceedings
                                      A-31327663
                        Decided by Board July 80, 1976
(1) Although the provisions for waiver of grounds of excludability under section 212(c) of
   the Immigration and Nationality Act are applicable to an alien in deportation proceedings, the seven-consecutive-year-period of unrelinquished domicile in the 'United States
   required to qualify must have occurred subsequently to,the alien's lawful admission for
   permanent resident.
(2) Respondent had been doMiciled in the United States from 1959 to October 25, 1971,
   (nearly 12 consecutive years), but had never been lawfully admitted for permanent
  ,residence. HE departed the United States on the latter date and was readmitted three
  months later for permanent residence on December 26, 1971, after having received
  permission to reapply for admission. Therefore, respondent was statutorily ineligible
  for section 212(c) relief sought at his deportation hearing brought under section
  241(a)(11) of the Act based on his 1973 conviction for offenses relative to the possession
  and clistrihnt-on of narcotics (heroin), because having been admitted for permanent
  residence only since December 26, 1971, respondent did not have the 7 consecutive years
  domicile following admission for permanent residence required by section 212(c).
CHARGE:
  Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of conspiracy for violation of narcotics laws; possession of narcotics
                        with intent to distribute heroin. U.S. Code Title 21, Sections
                           812, 841(a)(1), 841(b)(1)(A); Title 

ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
 Max K. Schlem, Esquire                                  George Indelicato
 223 Broadway                                            Appellate Trial Attorney
 New York, New York 10007


   In a decision dated May 29, 1975 the immigration judge found the
respondent deportable under section 241(a)(11) of the Immigration and
Nationality Act, denied his application for a waiver of inadmissibility
under sectioa 212(c) and ordered his deportation. The respondent has
appealed from that decision. The appeal will be dismissed.
  The respondent, a native and citizen of China, entered the United
States as a nonimmigrant crewman in 1959. He remained beyond the
authorized period of his admission and, after a hearing before a special
inquiry officer on October 26, 1965, was found deportable under section
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                                                        Interim Decision #2509

241(a)(2) of the Act and was granted the privilege of departing voluntarily. An alternate order of deportation was then entered against him.
Private bills were subsequently introduced in Congress in his behalf
and, as a result, he was given until March 2, 1969 to depart the United
States voluntarily. He did not leave, however, until October 25, 1971.
Shortly thereafter, on December 26, 1971, after having received permission to reapply for admission, he returned to the United States as a
lawful permanent resident. In 1973 he was convicted upon a plea of
guilty of offenses relating to the possession and distribution of narcotic
drugs, to wit, heroin, and these proceedings were instituted against
him.
   At the deportation hearing the respondent admitted the truth of the
allegations in the order to show cause and conceded his deportability.
The only issue on appeal involves his application for a waiver of inadmissibility under section 212(c).
   Section 212(c) provides in pertinent part:
 "Aliens lawfully admitted for permanent residence who temporarily proceeded abroad
 voluntarily and not under an order of deportation, and who are returning to a lawful
 unrelinguished domicile of seven consecutive years, may be admitted in the discretion
 of the Attorney General without regard to the provisions of paragraph (1) through (25)
 and paragraphs (30) and (31) of subsection (a)." (Emphasis supplied.)
  Although the language of the statute describes a waiver to an alien
seeking to enter the United States, we have held that this waiver may
be granted in deportation proceedings in connection-with an application
for adjustment of status. Matter of Smith, 

 (BIA
1965).
   The seven-year period of domicile in the United States, however,
must have followed the lawful admission for permanent residence. Matter of 5 , 

 (BIA 1953). Inasmuch as the respondent
       —


was not admitted as a lawful permanent resident until 1971, he does not,
have the requisite seven years and is consequently statutorily ineligible
for section 212(c) relief.
  The decision of the immigration judge is correct. Accordingly, the
appeal will be dismissed.
  ORDER: The appeal is dismissed.




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