Interim Decision #2701
MATTER OF GRANADOS
In Deportation Proceedings
A-14103418
Decided by Board April 26, 1979
(1) Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), is ineffective
to remove deportability under section 241(a)(14) of the Act, 8 U.S.C. 1251(a)(14), for
conviction of possession of an unregistered sawed-off shotgun.
(2) Section 212(c) of the Act is not a general form of discretionary relief. It is confined to
the grounds of inadmissibility enumerated therein.
(3) Francis v. INS, 532 F.2d 268 (2 Cir. 1976) expanded the class of aliens to whom section
212(e) relief is available but did not increase the statutory grounds to which section
212(c) relief may be applied.
<4) If a ground of deportation is also a ground of inadmissibility. section 212(c) can be
invoked in a deportation hearing.
(5) Conviction for possession of a concealed sawed-off shotgun is not a specified section
212(a) ground of excludability.
<6) Conviction for possession of a concealed sawed - off shotgun is not a crime involving
moral turpitude that would render the respondent excludable under section 212(a)(9) of
the Act.
CHARGE:
Order: Act of 1952—Section 241(a)(14) t8 U.S.C. 1251(a)(14)]—Convicted of possessing a sawed-off shotgun
(Xi BEHALF OF RESPONDENT: UN BEHALF OF SERVICE:
Jack Wassermv, Esquire George Indelicato
1707 H Street, N.W. Appellate Trial Attorney
Washington, D.C. 20006
Kendall Warren
Trial Attorney
Attorney of record:
Dan F. Darnley, Esquire
3828 Seattle-First National
Bank Building
Seattle, Washington 98154
Milhollan, Chairman; Maniatis, Applernan, Maguire, and Farb, Board Member's
The respondent appeals from the June 12, 1978, decision by the immigration judge denying his motion to reopen the deportation proceedings
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in order to apply for relief from deportation under section 212(c) of the
Immigration and Nationality Act, 8 U.S.C. 1182(c). The appeal will be
dismissed because we agree with the immigration judge's conclusicin
that section 212(c) of the Act is ineffective to remove the basis for the
respondent's deportability.
The respondent is a native and citizen of Mexico who was admitted as
a lawful permanent resident of the United States on August 28, 1965.
On October 18, 1976, he was convicted in the United States District
Court for the Eastern District of Washington for possession of an
unregistered sawed - off shotgun in violation of 26 U.S.C. 5861(d), 5871.
Consequently, he was found deportable on January 12, 1978, under
,
section 241(a)(14) of the Act, 8 U. S. C. 1251(a)(14). On May 5, 1978, we
dismissed an appeal from the deportability decision as untimely. He
then submitted on May 20, 1978, a motion to reopen the deportation
proceedings and a request for a stay of deportation which the immigration judge denied on June 12, 1978. We agree with the immigration
judge that he had jUrisdiction to entertain the motion to reopen. Matter
of Mladineo, 14 L & N. Dec. 591 (BIA 1974).
Section 212(c) of the Act provides that aliens lawfully admitted for
permanent residence whu temporarily Trooccd 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 paragraphs (1) through (25) and paragraphs (30) and (31) of subsection
(a) of section 212. That section was enacted in 1952 1 to replace the
seventh proviso to section 3 of the Inuraigration Act of 1917. 2 Twice we
examined the newly enacted section and concluded that section 212(c),
unlike the seventh proviso it replaced, was not a general form of discretionary relief but instead was confined to the grounds of inadmissibility
enumerated therein. See Matter of M—,. 5 I. & N. Dec. 642 (BIA 1954);
Matter of T—, 5 I. & N. Dee. 389 (BIA 1953).
The scope of permissible discretion under section 212(c) was expanded
by the decision of the United States Court of Appeals for the Second
Circuit in Francis v. INS,
532 F.2d 268 (2 Cir. 1976). In Francis, the
Second Circuit Court of Appeals held that the provisions of section
212(c) are applicable 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 such provisions are also applicable to nondeparting permanent resident aliens. The rationale for the Francis
decision was that to provide for section. 212(c) relief to deportable aliens
Act of June 27, 1952, 66 Sta. 163; 8 U.S.C_ 1189(0
2 Act of February 5, 1917, 39 Stat. 878; ch. 29, §3.
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returning from abroad but not for aliens similarly situated who had not
departed from the United States would constitute an unconstitutional
classification inconsistent with due process. 532 F.2d at 272-273. Frarecis expanded the class of aliens to whom section 212(e) relief is available
but did not increase the statutory grounds to which section 212(c) relief
may be applied.
In Matter of Silva, Interim Decision 2532 (BIA 1976), we adopted the
holding of the Francis court and concluded that section 212(e) permits a
waiver of a ground of inadmissibility to a permanent resident alien in a
deportation proceeding regardless of whether he departs the United
States following the act or acts which render him deportable. Therefore,
if a ground of deportation is also a ground of inadmissibility, section
212(c) can be invoked in a deportation hearing. Cf. Matter of Horn-,
Interim Decision 2557 (BIA 1977); Matter of Tanori, Interim Decision
2467 (BIA 1976). 3
In the present case, however, the respondent seeks the expansion of
section 212(c) relief to a ground of deportation which is not a ground of
excludability listed under section 212(a) of the Act. Conviction for
possession of a concealed sawed-off shotgun is not a specified section
212(a) ground of excludability, nor a crime involving moral turpitude
that would render the respondent excludable under section 212(a)(9) of
the Act. See U.S. ex. rel. Andreacchi v. Curran, 38 F.2d 498 (S.D.N.Y-
1926); Ex part.? Saraceno,
182 F. 955 (S.D.N.Y. 1910).
We do not reach the respondent's contention that his conviction constitutes a ground of excludability because if deported he would thereafter be immediately excludable.' He would be excludable under section
212(a)(17) of the Act because of his deportation, not because of the
underlying conviction. However, assuming for the purpose of discussion
that the conviction for shotgun possession constitutes some sort Of
exclusion ground per se, under section 212(a) generally, it is not within
the ambit of section 212(c). To adopt the respondent's reasoning would
Make section 212(c) relief available for all grounds of deportability
including the subversive grounds, section 212(a)(27) to (29) of the Act,.
Which were specifically precluded from section 212(c) relief. We see
nothing in the plain language or the legislative history of section 212(c)
3 We reject the respondent's contenticon that the concurring opinion's reference to
setion 212(c) as a full deportation relief meant that the section was available as relief for
deportation grounds. We read that sentence as stating that as a result of the Francis
and Silva cases section 212(c) is a full deportation relief as to the grounds set forth in
section 212(c).
We are aware that the law prior to the 1952 Immigration and Nationality Act was
construed as containing implied exclusion grounds derived from express deportations
oloot.inds. See Matter of V—, 1 I. & N. Dec. 20 (DIA 1942). However, no such jittery]. etati.on has been applied under the 1952 Act.
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justifying extending such administrative relief beyond the grounds
listed under that section. See S. Rep. No. 1137, 82d Cong., 2d Sess.
(1952); H.R. Rep. No. 1365, 82d Cong., 2d Sess. (1952); U.S. Code
Cong. & Adm. News 1952, pp. 1652, 1705.
Therefore, we conclude that the respondent's conviction for possession of an unregistered sawed - off shotgun does not come within the
grounds of excludability which are subject to a section 212(c) waiver.
Since the respondent's counsel has conceded at oral argument that his
other contentions, unrelated to section 212(c), are without merit, there
are no other issues left before us and the appeal will be dismissed.
ORDER: The appeal is dismissed.
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