Interim Decision #2703
MATTER OF SALMON
In Deportation Proceedings
A-30587001
Decided by Board December 29, 1978
(1) Where a ground of deportation is also a ground of inadmissibility which may be waived
under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), that
relief is available to an alien in deportation proceedings.
(2) As the charge of deportability under section 241(a)(4) of the Act, 8 U.S.C. 1251(a)(4)
(conviction of a crime involving moral turpitude), is the equivalent of a ground of
excludability under section 212(a)(9), 8 U.S.C. 1182(a)(9) (exclusion based on conviction
of a crime involving moral turpitude), section 212(c), 8 U.S.C. 1182(c), will be available
to the respondent in deportation proceedings.
(3) The mere fact of an alien's conviction of a crime providing the basis for deportation does
not, in itself, end that alien's lawful domicile for section 212(c) purposes nor does it
terminate his status as a lawful permanent resident. Matter of S—, 6 1. Si N. Dec. 392
(BIA 19b4; A.G. 1955) followed.
(4) Section 212(c) does not provide an indiscriminate waiver for all who demonstrate
statutory eligibility for such relief.
(5) An alien bears the burden of demonstrating that, as a matter of discretion, he warrants
section 212(c) relief. Matter of Maria, Interim Decision 2666 (BIA 1978) followed.
(6) The standards established in Matter of Maria in considering applications for section
212(c) relief are not limited only to those applications involving aliens convicted of drug
offenses but apply equally to an alien convicted of a crime for which he has been found
deportable under section 241(a)(4) of the Act.
(1) Although confined aliens and those who have recently committed criminal acts have a
more difficult task in securing discretionary relief, an immigration judge may not
decline to entertain an application for relief under section 212(c) of the Act by a
statutorily eligible alien merely because he is held in confinement. Matter of Fernandez,
14 I. & N. Dec. 24 (BIA 1972) distinguished.
(8) Despite recent convictions for criminal trespass in the third degree, and robbery in th e
third degree, where youthful alien had eight years of residence, cluse family ties, and
had just been released on parole, case remanded for consideration of evidence of
possible rehabilitation.
CHARGE:
Order: Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4))—Conviction of crime involving moral turpitude committed -within five years of entry and
sentenced to confinement for a year or more
ON REHA_LF OF RESPONDENT: ON BEHALF OF SERVICE:
Willard E. Myers, III, Esquire George Indelicato
Prisoners' Legal Services of New York Appellate Trial Attorney
Ithaca, New York 14850
Ithaca, NY 14850
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Interim Decision #2703
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The respondent has appealed from the decision of an immigration
judge, dated March '7, 1978, finding him deportable as charged 1 and
denying his request for relief from deportation under section 212(c) of
the Immigration and Nationality Act, 8 U.S.C. 1182(c). The record will
be remanded.
The respondent is a 22-year-old native of Great Britain and citizen of
,
Jamaica who was admitted to the United States as a lawful permanent
resident in October, 1970. At a deportation hearing held on March 7,
1978, the respondent conceded deportability under section 241(aX4) of
the Act, 8 U.S.C. 1251(a)(4), as an alien who had been convicted of a
crime involving moral turpitude committed within five years after entry
for which he had been sentenced to confinement in a prison or corrective
institution for a year or more. The only issue on appeal involves the
immigration judge's denial of the respondent's application for section
212(c) relief.
The following evidence appears of record. In October 1975, the
respondent was charged with criminal trespass in the third degree,
which arose out of his entry into the New York subway without paying
the fare (Tr. pp. 16, 17). He paid a fine of $25 in connection with his
conviction (Ex. 6). 2 On February 17, 1976, the respondent was convicted
in the Supreme Court of New York for Kings County of the offense of
robbery in the third degree, committed on September 14, 1975. On April
12, 1976, the respondent was sentenced to three years in a New York
correctional facility for this offense (Ex. 3). On March 15, 1976, the
respondent was again convicted of robbery in the third degree, for
which he was sentenced by the Supreme Court of New York for
Richmond County to an indeterminate term, not to exceed four years
(Ex. 7). This sentence was to run concurrently with the sentence imposed by the Kings County court.
At a deportation hearing held on March 7, 1978, the respondent
conceded deportability as charged, and indicated his desire to apply for
section 212(c) relief from deportation (Tr. p. 2). The trial attorney
argued that the respondent was statutorily ineligible for such relief
because his conviction for robbery on February 17, 1976, precluded him
The respondent was charged, in the Order to Show Cause issued on August 1, 1977,
with deportability under section 241(aX4) of the Act. It appears that the immigration
judge's decision listing the charge of deportability as section 241(a)(1) is a mere typographical error and will be treated by us as such.
2 Although a pre-sentence report of the respondent and the decision of the immigration .
judgerftoha espndt' cigforhsenaFbuy19,
1975, we believe that the correct date is February 19, 1076, us the offense was committed
in October, 1975.
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Interim Decision #2703
from establishing the requisite seven years of lawful permanent residence necessary for a grant of section 212(c) relief. The immigration
judge did not specifically determine the question, but rather, in his
decision, stated:
Assuming, arguendo, that the Government's position is correct there is still a question
as to whether the respondent would have been eligible as a matter of discretion.
The immigration judge then went on to find that the respondent did not
merit the favorable exercise of discretion.
Availability of Section
212(c) in Deportation Proceedings
Section 212(c) of the Immigration and Nationality Act provides, in
pertinent part, that aliens lawfully admitted for permanent residence
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, may be admitted in the discretion of the
Attorney General without regard to certain specified grounds of exclusion enumerated in section 212(a) of the Act. The grounds specified
include an alien who has been convicted of a crime involving moral
turpitude as set forth in section 212(a)(9) of the Act, 8 U.S. C. 1182(a)(9).
Although the language in section 212(a)(9) concerning excludability on
the basis of conviction for a crime involving moral turpitude is not
exactly the same as the language of section 241(a)(4) 3 of the Act concerning deportability for a conviction of a crime involving moral turpitude, we find that drawing such a distinction would run counter to the
rationale of Francis v. INS, 532 F2d 268 (2 Cir. 1976), adopted by this
Board in Matter of Silva, Interim Decision 2532 (BIA 1976).
In Francis, supra, 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. In Mat-
3 Section 241(a)(4) provides:
Any alien in the United States (mcluding an alien crewman) shall, upon the order of
the Attorney General, be deported who-
. . . . is convicted of a crime involving moral turpitude committed within five years
after entry and either sentenced to confinement or confined therefor in a prison or
corrective institution, for a year or more, or who at any time after entry is convicted
of two crimes involving moral turpitude, not arising out of a single scheme of cri_minal
misconduct, regardless of whether confined therefor and regardless of whether the
convictions were in a single trial. . . .
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Interim Decision #2703
ter of Silva, supra, we adopted the holding of the Francis court and
concluded that section 212(c) 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, as here, section 212(c) can be invoked in
a deportation hearing. Cf. Matter of Ham, Interim Decision 2557 (BIA
1977); Matter of Tanori, Interim Decision 2467 (BIA 1976).
Eligibility
We also find that the respondent is not barred from seeking section
212(c) relief by the fact of his conviction for robbery on February 17,
1976. The Service argued at the respondent's deportation hearing that
this conviction alone ended the period of lawful domicile necessary to a
grant of relief under section 212(c) in that it occurred before seven years
had elapsed after the respondent's entry as a lawful permanent resident. However, in Matter of 6 I. & N. Dec. 392 (BIA 1954; A.G.
1955), we held that the fact that an alien may have become deportable
subsequent to his admission to the United States for lawful permanent
residence, without more, was insufficient to preclude him from seeking
relief under section 212(c). This position appears to have been followed
by the Service in Matter of Mosqueda„
14 I. & N. Dec. 55 (R.C. 1972).
Therefore, we find that the fact of the respondent's conviction (providing a basis for deportation) does not in itself terminate the respondent's
lawful permanent resident status, nor the lawful domicile necessary for
a grant of section 212(c) relief We conclude, therefore, that the respondent is statutorily eligible for such relief.
Discretion
However, section 212(c) does not provide an indiscriminate waiver for
all who demonstrate statutory eligibility for such relief. Instead, the
Attorney General or his delegate is required to determine as a matter of
discretion whether the applicant warrants the relief sought. The alien
bears the burden of demonstrating that his application merits favorable
consideration. Matter of Marin, Interim Decision 2666 (BIA 1978).
In Matter of Morin, we established the standards to be applied in
considering applications for section 212(c) relief. 4 We observed that
confined aliens and those who have recently committed criminal acts will
have a more difficult task in showing that discretion should be exercised
4 Contrary to counsel's assertions on appeal, the standards set out in Mann to guide the
exercise of discretion in section 212(e) cases are not limited only to those applications
involving aliens convicted of drug offenses, but apply equally to an alien such as the
respondent, who was convicted of robbery in the third degree.
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Interim Decision #2703
in their behalf than aliens who have committed the same offense in the
more distant past. However, we also there held that, contrary to the
immigration judge's opinion in this case, Matter of Fernandez, 14 I. &
N. Dec. 24 (BIA 1972) should not be read as permitting an immigration
judge to decline to entertain an application for relief under section
212(c) by a statutorily eligible respondent merely because he is held in
confinement. 5
In his decision, the immigration judge cited the favorable factors
present in the respondent's application, including his length of residence
in the United States (more than eight years), his close family ties here
(his parents and three sisters), and the hardship the respondent would
suffer if he were forced to return to Jamaica, his native country_ The
immigration judge also considered the respondent's age at the time of
his convictions for robbery, and the favorable report of one of the
respondent's teachers contained in the record. However, the immigration judge found that these favorable factors, balanced against the
serious nature and recency of the respondent's convictions, were not
sufficient to merit a favorable exercise of discretion.
Since the date of the decision in this case, the respondent has been
released on parole. This development should, we find, be considered by
the immigration judge in considering the respondent's application for
discretionary relief. See generally Matter of Marin, supra. We will,
therefore, remand the record to the immigration judge to enable him to
consider this additional evidence. On remand, the respondent should be
given an opportunity to present any additional information he may have
in support of his application, including any evidence of rehabilitation
since the date of his incarceration. Accordingly, the record will be
remanded to the immigration judge.
ORDER: The record is remanded.
* Although the immigration judge cited Matter of Fernandez as permitting him to
xr•efuse to entertain the section 212(c) application because the respondent was still in
Prison, he in fact accepted the application and allowed the respondent the full opportunity
present evidence in support of a favorable exercise of discretion.
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