Interim Decision #2557
MATTER OF Ham
In Deportation Proceedings
A-14338500
Decided by Board February 1977
(1) Respondent who entered the United States as a lawful permanent resident in 1967
was, in 1975, found deportable under section 241(a)(11) of the Immigration and Nationality Act as an alien who bad been convicted of a violation of a law relating to the
illicit possession or traffic in a narcotic drug. Respondent moved to reopen deportation
proceedings to apply for adjustment of status under section 245 of the Act which was
denied by the immigration judge on the ground that respondent was statutorily ineligible for that relief, and respondent appealed.
(2) The appeal will be sustained, and the motion will be granted. In the light of Francis v.
INS, 532 F.2d 268, and Matter of Silva, Interim Decision 2532 (BIA 1976) a waiver
of the grounds of inadmissibility under section 212(e) of the Act may be granted in
deportation proceedings regardless of whether the alien made an entry when eligible for
the relief or whether the alien may adjust his status under section 245. Consequently, in
the circumstances of the instant case, the question of respondent's eligibility for adjustment of status is not relevant. Upon a showing of eligibility for section 212(c) relief,
deportation proceedings may be reopened to give respondent opportunity to apply for
relief under section 212(e) of the Act.
CHARGE:
Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)1—Convicted of a violation
of a law relating to the illicit possession or traffic in a narcotic
drug
ON BEHALF OF RESPONDENT: Stanley H. Wallenstein, Esquire
Scliiano & Wallenstein
80 Wall Street
New York, New York 1(1005
BY: Milhollan, Chairman; Wilson, Torrington, Maniatis, and Appleman, Board Members
In a 1975 decision of an immigration judge, the respondent was found
deportable as an alien who had been convicted of a violation of a law
relating to the illicit possession or traffic in a narcotic drug under section
241(a)(11) of the Immigration and Nationality Act. The respondent
moved ta, reopen the proceedings in order to apply for adjustment of
status under section 245 of the Act. The immigration judge denied the
motion on the ground that the respondent had failed to establish statut-
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ory eligibility for section 245 relief. The respondent has appealed from
that denial. The appeal will be sustained and the motion will be granted.
The respondent, a native and citizen of China, seeks to avoid deportation by obtaining a waiver of inadmissibility under section 212(c) in
connection with an adjustment of status under section 245.
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
unrelinquished domicile of seven cunbecutive years, may be admitted in the discretion of
the Attorney General without regard to the provisions of paragraph (1) through paragraphs (25) and paragraphs (30) and (31) of subsection (a).
The respondent concededly is inadmissible under section 212(a)(23) by
reason of his narcotics conviction.
Although the statute describes a waiver available to an alien seeking
to enter the United States, we long held that this waiver might be
granted in deportation proceedings if either (1) the same ground of
deportability would have rendered the alien inadmissible at his last
entry and at the time of that entry, the alien was eligible for the relief
[Matter of Tanori, Interim Decision 2467 (DIA 1970)], or (2) the application for a waiver under section 212(c) was made in connection with an
application for adjustment of status under section 245 of the Act. Matter
of Smith, 11 I & N Dee. 225 (11T A 1965)_ An alien in deportation
proceedings who had neither reentered the United States since becoming deportable nor was eligible for adjustment of status was precluded
from obtaining the relief. Matter of Arias-Uribe, 13 I. & N. Dec. 696
(BIA 1971), aff'd
466 F.2d 1198 (September 1972).
The United States Court of Appeals for the Second Circuit, however,
held in Francis v. INS,
532 F.2d 268 (2 Cir. 1976), that the provisions of
section 212(c) are available not only to permanent resident aliens who
temporarily proceed abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of
seven consecutive years, but that section 212(c) relief may also be
granted to non-departing permanent resident aliens with a lawful unrelinquished domicile of seven consecutive years. The Board subsequently
held in Matter of Silva, Interim Decision 2532 (BIA 1976), th at under the
court's decision in
Francis, supra, no distinction shall be made between
permanent resident aliens who temporarily proceed abroad and nond eparting permanent resident aliens in applying the provisions of section
212(c).
Under Board decisions rendered prior to Silva, supra, the respondent
in the present case who has not departed the United States since his
narcotics conviction, could only have made his application for a section
212(c) waiver in connection with an application for adjustment of status.
However, following the reasoning in Silva, supra, a section 212(e)
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Interim Decision #2557
waiver may now be granted in deportation proceedings regardless of
whether the alien made an entry when eligible for the relief or whether
the alien may adjust his status to that of a lawful permanent resident
under section 245. Consequently, in the circumstances of the present
case the question of the respondent's eligibility for adjustment of status
is not relevant. Upon a showing of eligibility for section 212(c) relief,
deportation proceedings may be reop ened in order that the respondent
be given an opportunity to apply for the benefits of section 212(c).
The record indicates that the resp,andent entered the United States
for lawful permanent residence in 1967. An order of deportation was
entered against him in 1975. No application was made at that time for
section 212(c) relief. shortly thereafter the respondent submitted the
present motion to reopen. Inasmuch as it appears that the respondent is
statutorily eligible for discretionary relief under section 212(c), we shall
sustain the appeal and grant the motion to reopen the proceedings. At
the reopened proceedings, the respondent shall be afforded an opportunity to make an application for section 212(c) relief before the immigration judge.
ORDER: The appeal is sustained; it is ordered that the hearing be
reopened in order to afford the respondent an opportunity to make an
application for discretionary relief under the Immigration and Nationality Act.
IT 1S FURTHER ORDERED that, if discretionary relief is granted
by the immigration judge, the outstanding order of deportation be
withdrawn.
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