Interim Decision #2751
MATTER OF SANCHEZ
In Deportation Proceedings
• A-14273169
Decided by Board January 15, 1980
(1) A crime committed within 5 years of any entry made by an alien can form the basis
for deportation under section 241(a)(4) of the Immigration and Nationality Act,
8 U.S.C. 1251(a)(4).
(2) An alien who entered the United States frequently as a commuter between 1970 and
1976, and whose mail fraud began at an unknown date and continued to July 1976,
committed the crime within 5 years after entry, and when given a suspended sentence
of over 1 year was deportable under section 241(a)(4).
(3) While an alien coming into the United States under custody did not make an entry,
as he was not "free from actual or constructive restraint," an entry was made at the
time he was released from custody.
(4) In order for an alien to establish "domicile" in the United States for section 212(c)
purposes (8 U.S.C. 1182(c)), he must have the intention of making the United States his
home for the indefinite future; that an alien is a lawful permanent resident does not
necessarily mean he is domiciled in the United States.
(5) Where for 6 years a lawful permanent resident commuted to work in the United
States, but had no home here and lived for all that time with his family in Mexico, he
was unable to satisfy the 7 years lawful unrelinquished domicile requirement to
section 212(c), despite paying taxes here, having a California driver's license, and
registering for the Selective Service.
(6) Relief under section 212(h) of the Act may be granted nunc pro tune in deportation
proceedings in order to cure a ground of in admissibility at the time of entry.
(7) The fact that an alien is charged with deportability under section 241(a)(4) of the
Act, rather than under 241(a)(1) with an underlying basis of 212(a)(9) does not bar him
from qualifying for a waiver under section 212(h).
(8) Where respondent's child, who was born out of wedlock, may have lived with the
respondent and his parents in California prior to the child's eighteenth birthday, case
is remanded for determination of the child's possible legitimation. If the child was
properly legitimated, then the respondent has established prima facie eligibility for a
section 212(h) waiver.
CHARGE
Order: Act of 1952—Sec. 241(1)(4)18 U.S.C. 1251(a)(4)]—Convicted of crime involving
moral turpitude within .5 years after entry, and sentenced to
confinement therefor for 1 year or more—to wit mail fraud
218
Interim Decision #2751
ON BEHALF OF FiEsPoNimbrr: Timothy S. Barker, Esquire
Legal Aid Society of San Diego, Inc.
429 Third Avenue
Chula Vista, California 92010
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
In a decision dated February 17, 1978, an immigration judge found
the respondent deportable as charged, and denied his applications for
relief from deportation under sections 212(c),.212(h), and 245 of the
Immigration and Nationality Act, 8 U.S.C. 1182(c), 1182(h) and 1255.
The respondent appealed. The record will be remanded.
The respondent, a 29-year-old native and citizen of Mexico, entered
the United States as a lawful permanent resident on April 14, 1965. He
resided in the United States, attending school and living with family
friends, until 1970. In 1970, the respondent obtained employment with
a brokerage firm in San Ysidro, California. Unable at this time to
maintain a residence in the United States for economic reasons, the
respondent moved back to Mexico, where he could live with his parents
rent-free. The respondent had on September 19, 1967, executed a
commuter questionnaire (SW-426), and his alien registration receipt
card (Form 1-151) was modified to designate him as a commuter. The
respondent maintained a commuter status from 1970 to 1976, entering
the United States each day for work, and recrossing back to Mexico in
the evenings. In September of 1976, the respondent, with his family,
began residing in the United States.
On October 27, 1976, after a brief visit to Mexico, the respondent was
arrested at the San Ysidro border, and charged with mail fraud under
18 U.S.C. 1041. The respondent was taken into custody, detained
overnight, and released the next day pending his trial on the mail
fraud charges. The respondent pleaded guilty to these charges on July
18, 1977, and he was sentenced to confinement for 1 year and 1 day. This
sentence was suspended. Deportation proceedings were initiated
against the respondent on September 21, 1977, when an Order to Show
Cause was issued against him.
At a deportation hearing begun in October of 1977, and completed in
February of 1978, the respondent was found deportable under section
241(a)(4) of the Act, 8 U.S.C. 1251(a)(4), as an alien convicted of a crime
involving moral turpitude within 5 years of entry, and sentenced to
confinement therefor for a year or more. All applications for discretionary relief were denied by the immigration judge.
On appeal, the respondent makes several arguments. To begin with,
he contends. that the immigration judge's finding of deportability was
incorrect, because there had been no conviction of a crime involving
219
Interim Decision #2751
moral turpitude within 5 years of his entry as a lawful permanent
resident. He then argues that he is eligible for a waiver under section
212(c) of the Act because of his alleged 7 years of continuous domicile
in the United States, that he is eligible for a 212(h) waiver, as that
relief "should be available in a deportation hearing," and that he is
eligible for adjustment of status under section 245 of the Act. Finally,
the respondent argues that he should properly have been placed in
exclusion proceedings, rather than in deportation proceedings, "since
he had not effected an 'entry' into the United States." We will consider
these arguments separately.
The immigration judge's finding of deportability was correct. Section 241(a)(4), under which the respondent was charged, and found
deportable, provides for the deportation of "any alien" who is "con
victed of a crime involving moral turpitude committed within 5 years
after entry." The statute does not specify that the crime must have
been committed within 5 years of a lawful permanent resident's
original entry as an immigrant. A crime committed within 5 years of
any entry made by an alien can form the basis far deportation under
section 241(a)(4). See Steinsvik v. INS, 603 F.2d 225 (9 Cir. 1979). In the
present case, the respondent's mail fraud began on an unknown date,
and continued to July 1976 (see Ex. 3). From 1970 to September of 1976,
the respondent held the status of commuter, and as such made an
"entry" into the United States nearly every day. Matter of Rico,
16 I&N
Dec. 181 (BIA 1977); Matter ofDiaz,
15 I&N Dec. 488 (BIA 1975); Matter
ofHoffman-Arvavo,131&N Dec. 750 (BIA 1971). Hence, there can be no
question that the respondent committed the crime of mail fraud within
5 years of an entry into the United States. As he was sentenced to
imprisonment for a year or more for this crime, he is deportable under
section 241(a)(4). The fact that the respondent's sentence was suspended does not change this result. Matter of M—,
6 I&N Dec. 346 (BIA
1954). See also Matter of De la Cruz,
15 I&N Dec. 616 (BIA 1976).
We also agree with the immigration judge that the respondent was
properly in deportation proceedings, rather than exclusion proceedings. The respondent's contention that he has made no "entry" since
his conviction, so as to be amen able to a deportation hearing, is wholly
without merit. It is true that an alien makes an "entry" for immigration purposes only when he comes into the United States "free from
actual'or constructive restraint." Matter of Yam,
16 I&N Dec. 535 (BIA
1978). See also U.S. ex rel. Lam Fo Sang v. Esperdy,
210 F.Supp. 786
(S.D.N.Y. 1962); Matter of V— Q—,
9 I&N Dec. 78 (BIA 1960). Here, the
respondent came into the United States on October 27, 1976, under
custody, and so no entry was made at that time. However, when he was
released the following day without bond, and only on the condition that
he appear for his trial on the mail fraud charges, an entry was made.
220
Interim Decision #2751
He was then free from any legal restraints imposed upon him by the
immigration laws. See Matter of V—Q—, supra. Moreover, the respondent testified that he made many brief trips to Mexico after he
was apprehended in October of 1976, as well as after his conviction in
July 1977. See transcript at 41 42. He reentered the United States and
-
was inspected after each of his departures to Mexico. Given these
undisputed facts, no serious claim can be made that the respondent
should be in exclusion proceedings.
With regard to the respondent's application for discretionary relief
under section 212(c) of the Act, we find, as did the immigration judge,
that the respondent is ineligible for this waiver. Section 212(c) provides for a waiver of certain grounds of excludability for lawful
permanent residents who temporarily proceed abroad voluntarily, and
not under an order of deportation, and who are returning to a "lawful
unrelinquished domicile of 7 consecutive years." The respondent
argues that he satisfies the 7 years' domicile requirement because he
never really abandoned his United Mates domicile during the years he
WAS a commuter. We cannot agree.
The word "domicile" in section 212(e) refers to the legal concept of
being a domiciliary of the United States. See Matter of GarciopQuintero,15 I&N Dec. 244 (BIA 1975). Thus, in order for an alien to establish
"domicile" in the United States, he must be physically present here
and have the intention of making the United States his home for the
indefinite future. Gilbert v. David,
235 U.S. 561, 569-570 (1915). Once a
domicile is acquired, it is retained until such time as a domicile is
established elsewhere. Garner v. Pearson,
374 F.Supp. 580, 590 (M.D.
Fla. 1973). The fact that an alien has the status of an immigrant
lawfully admitted for permanent residence does not necessarily mean
that he intends to reside here permanently. Saxbe v. Bustos,
419 U.S. 65
(1974). See Matter of Carrasco,
16 I&N Dec. 195 (BIA 1977), ard. sub
nom. Carrasco-Favela v. INS,
563 F.2d 1220 (5 Cir. 1977).
The question presented is one of fact: did the respondent from 1970
to 1976 either have the intention to make his home in Mexico for the
indefinite future, or lack an intention to make his home elsewhere?
Gilbert v.
David, supra; Matter of Carraseo, supra. The respondent
moved to Mexico in 1970 for economic reasons. He stated at his hearing
that he and his family intended to move back to the United States
when his youngest sister finished primary school, so that she could
attend junior high school in this country (Tr. at 28). It is argued that
the respondent "only left the United States for a temporary period of
time, a fixed period of time," such period to end when his sister became
eligible to begin secondary school in the United States (Tr. at 33). The
respondent contends that this fact, coupled with the facts that he spent
much time in the United States during these years, had most of his
221
Interim Decision #2751
friends here, paid taxes here, maintained a California driver's license,
and registered for the Selective Service here, warrant a finding that
the respondent's United States domicile, for 212(c) purposes, was not
abandoned in 1970. The fact remains, however, that for 6 years the
respondent lived with his family in Mexico, and that he had no actual
home in the United States to which to return during this time. From
these facts we can only conclude that the respondent's stay in Mexico
from 1970 to 1976 was far from temporary in nature, and that it
precludes a finding of 7 years' lawful unrelinquished domicile under
section 212(c).
Although we find the respondent ineligible for a 212(c) waiver, we
believe that he may be eligible for a waiver under section 212(h). That
section provides that:
Any alien, who is excludable from the United States under paragraphs (9), (10), or
(12) of this section, who (A) is the spouse or child, including a minor unmarried
adopted child, of a United States citizen or an alien lawfully admitted for permanent
residence, shall, if otherwise admissible, be issued a visa and admitted to the United
States for permanent residence (1) if it shall be established to the satisfaction of the
Attorney General that (A) the alien's exclusion would result in extreme hardship to
the Unitedi States citizen or lawful resident spouse, parent, or son or daughter of such
alien, and (B) the admission to the United States of such alien would not be contrary
to the national welfare, safety, or security of the United States; and (2) if the Attorney
General, in his ditanetion, and pursuant to such terms, conditions, and procedurca as
he may by regulations prescribe, has consented to the alien's applying or reapplying
for a visa and for admission to the United States.
This Board has held that relief under section 212(h) and its predecessors (Section 5 of the September 11, 1957 Act, and the prior 212(g) may
be granted nunc pro tune in deportation proceedings in order to cure a
ground of inadmissibility at the time of entry. Matter of Millard, 11
I&N Dec. 175 (BIA 1965); Matter of P ,
7 I&N Dec. 713 (BIA 1958). See
—
also Matter of BernabeU.la,13 I&N Dec. 42 (BIA 1968); Matter of Mascorro-Perales, 12 I&N Dee. 229 (BIA 1967). The immigration judge in his
decision attempts to distinguish Maier of P — , supra, on the ground
that in that case the respondent was inadmissible at the time of his
original entry as a lawful permanent resident, and he was subsequently charged under section 241(a)(1) of the Act as an alien excludable at
entry. In the present case, the respondent did not become excludable
until long after his entry as an immigrant, and he was charged with
deportability under section 241(a)(4).
Section 212(a) of the Act provides for the exclusion of any alien, at
any time, if he fits into an excludable class. Aliens who become
inadmissible after an original lawful entry may later be excluded from
the United States if they depart and seek to reenter, and they may also
at such later date be eligible for various waivers of excludability.
Hence, the fact that the respondent was not inadmissible at the time of
222
Interim Decision #2751
his original entry does not bar him from seeking 212(h) relief. Nor do
we believe that the fact that an alien is charged under section
241(a)(4), rather than under 241(a)(1) with an underlying basis of
212(a)(9), should prevent that alien from qualifying for a waiver under
section 212(h). In an analogous case involving the 212(c) waiver, we
held that, "a waiver of the ground of inadmissibility may be granted in
a deportation proceeding when, at the time of the alien's last entry, he
was inadmissible because of the same facts which.form the basis of his
cleportability." Matter of Tanori, 15 I&N Dee. 566 (BIA 1976). (Emphasis added.) In Tanori, the alien was charged with deportability
under section 241(A)(11) of the Act (not under section 241(a)(1) with
an underlying basis of 212(a)(23)), yet he was found eligible for a nuns
pro tune waiver under section 212(c). Similarly, we believe that the
respondent in this case should not be precluded from obtaining a
waiver under 212(h) due to the technical fact that he was charged
under section 241(a)(4) rather than under 241(a)(1).
The respondent is the father of a United States citizen child, born on
April 6, 1977. He has departed the United States and reentered on
numerous occasions since the birth of this child. Consequently, authority for a waiver under section 212(h) existed at the time of these
subsequent entries if the respondent's daughter qualifies as his child
under the immigration laws. Compare Matter of Bernabella, supra. In
order for a child to qualify as the "child" of his father for immigration
purposes, that child must be either legitimate at birth, or legitimated
prior to the age of 18 under the law of the child's residence or domicile,
or under the law of the father's residence or domicile. Section 101(bX1)
of the Act, 8 U.S.C. 1101(b)(1). As the respondent's daughter was born
out of wedlock, and the respondent has never married the child's
mother, the child cannot qualify as the legitimate child of the respondent. However, according to the respondent's testimony, his daughter
lives with him and his parents in California (Tr. at 24, 26, 34). Under
California law, legitimation of a child can be accomplished by methods
other than the marriage of the child's natural parents. See Matter of
Buenaventura, 16 I&N Dec. 456 (BIA 1978). The respondent's testimony indicates that his daughter may have been legitimated under
the applicable law (Tr. at 34), but the issue of the child's possible
legitimation was not raised at the hearing. On remand, therefore, the
respondent should be given an opportunity to establish that his
daughter has been legitimated and that she therefore qualifies as his
child under the immigration laws. If he can make such a showing, then
he will have established prima facie eligibility for a section 212(h)
waiver.
The respondent has been a permanent resident alien for over 14
years. He has close family ties in the United States, including his
223
Interim Decision #2751
lawful permanent resident mother and his United States citizen sisters, as well as his citizen daughter. Following his conviction for mail
fraud, the respondent's sentence was suspended. He has been working
full-time, making restitution payments, and meeting regularly with
his probation officer since the time of his conviction. The record contains no evidence of misconduct apart from the aforementioned conviction. Given these facts, we believe that the respondent may merit a
nunc pro tune waiver under section 212(h). On remand (assuming
legitimation of the child is established), the immigration judge should
consider any evidence of hardship which may be presented by the
respondent, so that a decision as to whether the respondent merits this
waiver as a matter of discretion may be made.
As our decision with regard to the 212(h) application disposes of this
case, we need not reach the issue of the respondent's application for
adjustment of status under section 245 of the Act.
ORDER: The record is remanded to the immigration judge for
further proceedings consistent with this opinion, and for the entry - of a
new decision.
224
