LOK

                                                          Interim Decision #2631




                                 MATTER OF LOK
                           In Deportation Proceedings

                                     A-31327663
                     Decided by Board January 13, 1978
(1) A waiver of inadmissibility under section 212(c) of the Immigration and Nationality
  Act, 8 U. S. C. 1182(c), may be granted in deportation proceedings in connection with an
  application for adjustment of status.
(2) When United States Court of Appeals for the Second Circuit overruled conclusion of
  the Board of Immigration Appeals that a respondent is statutorily ineligible for section
  212(e) relief if he does not have a lawful unrelinquished domicile of seven consecutive
  years following a lawful admission for permanent residence, and held that it was
  possible for an alien to possess a "lawful domicile" without having been admitted for
  permanent residence, the Board remanded for an administrative determinatiom
  whether respondent's "domicile" prior to his admission as a permanent resident was
  lawful. (But see Matter of Anwo, Interim Decision 2604 (BIA 1977), for cases arising
  outside Second Circuit.)
CHARGE:
  Order: Act of 1952—Section 241(a)(11), I. & N. Act, [8 U.S.C. 1251(a)(11)1—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: Max K. Schlem, Esquire
                        223 Broadway
                        New York, New York 10007
BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members


   In a decision dated May 29, 1975, the immigration judge found th_e
respondent deportable under section 241(a)(11) of the Immigration and
Nationality Act, 8 U.S.C. 1251(a)(11), denied his application for a
waiver of inadmissibility under section 212(c) of the Act, 8 U.S.G.
1182(c), and ordered his deportation. The respondent appealed from that
decision. In our order dated July 30, 1976, Matter of Lok, Interim
Decision 2509 (BIA 1976), we dismissed respondent's appeal. The respondent appealed our decision to the United States Court of Appeals
for the Second Circuit. In a decision issued on January 4, 1977, Laic "r.
      

 (2 Cir. 197'7), the United States Court of Appeals
granted the respondent's petition for review and remanded the case to

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Interim Decision #2631

this Board for proceedings not inconsistent with the opinion of the court.
The record contains a letter dated May 31, 1977, and issued by the
United States Attorney for the Southern District of New York to the
District Director of the New York Office of the Immigration and Naturalization Service. In that letter, the District Director was informed
that the Solicitor General refused to authorize the Service to petition
the Supreme Court of the United States for a writ of certiorari; and that
the decision of the Court of Appeals dated January 4, 1977, was the final
decision in this case. The record will be remanded to the immigration
judge.
   In our initial decision, Matter of 

 we determined that the
only issue raised on appeal involved respondent's application for a
waiver of inadmissibility under section 212(c) 1 of the Act. We concluded
that a waiver under this section may be granted in deportation proceedings in connection with an application for adjustment of status. Matter of
Smith, 

 (BIA 1965). However, we also concluded that
the seven-year period of domicile in the United States must have followed
the respondent's lawful admission for permanent residence. Matter of
S —, 5L & N. Dec. 116 (BIA 1953). We held that since the respondent was
not admitted as a. lawful permanent resident . until 1971, he did not have
the requisite seven years and therefore was statutorily ineligible for
section 212(c) relief.
   In Lok v. INS, supra, the Court of Appeals for the Second Circuit
overruled our decision in the instant case and rejected our interpretation of the statutory phrase "lawful unrelinquished domicile" as set forth
hiMatter of S—, supra. The court expressed the opinion that the phrase
"lawfully admitted for permanent residence" does not bear the same
meaning as the words "lawful unrelinquished domicile." The court concluded that was in fact possible for an alien to possess a "lawful domicile"
in the United States without having been admitted for permanent
residence. 2 Accordingly, the court remanded this case to us for
    . . consideration of Tim Lok's application for discretionary waiver of
exclusion unencumbered by the erroneous decision in Matter of S—." In
so' holding the court concluded that ". . . the only remaining objection
would seem to be that his domicile prior to admission as a permanent
resident was not lawful." In this regard the court was of the view that a
     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 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.)
   2 We note that we have declined to adopt the holding of the Court of Appeals for the
S econd Circuit inLok v_ INS, supra, in the ca cec arising outside of the Second Circuit See
44Tatter of Anwo, Interim Decision 2604 (BIA 1977).

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                                               interim Decision #ztisi
determination must be made as to respondent's contentions that the
Service's failure to enforce a 1965 order of deportation "legalized" his
stay in the United States a_nd, alternatively, that the respondent's
marriage to a United States citizen on February 23, 1968, should be
considered the beginning of seven years of "lawful" domicile.
   In light of the aforementioned court decision, we shall remand this
case to the immigration judge for appropriate action in accordance with
the order of the court. The immigration judge shall enter a new decision
and certify this case to us for review.
  ORDER: The record is remanded to the immigration judge for the
purpose of reopening the proceedings and for the entry of a new deci 7
                                                                           sion.
  Board Member Mary P. Maguire abstained from consideration of this
case.




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