Interim Decision #2779
MATTER OF' HINOJOSA
In Exclusion Proceedings
A-17299766
Decided by Board February 13, 1980
(1) While an actual entry completed while an alien is excludable results in the loss of the
alien's lawful status in this country, this was not the case here since the applicant did
not abandon his residence when he departed after serving his prison term, and he was
paroled in on his return. Immigration and Naturalization Service motion for reconsideration of Interim Decision 2718 denied. Matter OW—, 7 I&N Dec. 140 (BIA 1956)
reaffirmed. but distinguished from facts of this ease
(2) If an entry occurs while an alien is excludable, and before the alien has completed the
seven years necessary for a waiver under section 212(c) of the Immigration and
• Nationality Act, 8 U.S.C. 1182(c), the alien is ineligible for a 212(c) waiver.
EXCLUDABLE Act of 1952—Sec. 212(0(23) U.S.C. 1182(a)(23)]—Convicted of
marijuana law violation
ON BEHALF or APPLICANT: ON BEHALF OF EMI=
Laurier B. McDonald, Esquire Paul W. Schmidt
Pena, McDonald, Prestia & Zipp Deputy General
600 South Cleaner Avenue Counsel
P.O. Box 54
Edinburg, Texas 78539
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The Immigration and Naturalization Service has filed a motion for
reconsideration of our decision, dated July 10, 1979, in the abovenamed case. In our decision, we found the applicant statutorily eligible
for a waiver of excludability under section 212(c} of the Immigration
and Nationality Act, 8 U.S.C. 1182(c). We remanded the record to
enable the immigration judge to exercise his discretion on the application, in light of the current facts. The motion will be denied.
In its motion, the Service argues two points. First, it contends that
our analysis of section 212(c)'s "lawful unrelinquished domicile" requirement is faulty. We held, with respect to that requirement, that
the applicant did not lose his lawful unrelinquished domicile on April
3, 1972, when he sought admission to the United States after an act or
event rendering him excludable. Because the applicant was paroled
322
Interim Decision #2779
into the United States on that date, and had therefore made no
"entry," we held that the applicant had not lost his lawful status, as he
would have had he actually "entered" while in an excludable class. In
our decision, we distinguished a prior Board decision, Matter of M—, 7
I&N Dec. 140 (BIA 1956). In Matter of M—, the alien did complete an
entry after the act or event which put her in an excludable class. We
held there that an actual entry completed while an alien is excludable
results in the loss of the alien's lawful status in this country. We
further held that if such an entry occurred before the alien completed
the seven years necessary for a 212(c) waiver, then the alien became
ineligible for that relief.
The Service argues that the importance which our decision places on
an alien's "entry" after he becomes excludable but before he has
accumulated seven years' lawful unrelinquished domicile is "not sensible" and that this construction of the statute "should be rejected."
The Service pointed out that, had the applicant made an entry in
March of 1972, rather than being paroled into the United States, he
would now be ineligible for a 212(e) waiver, as he would not have
accumulated seven years of lawful domicile. (Conversely, had the alien
in Matter of M—, supra, waited another month before seeking admission, she could have applied for section 212(c) relief.) Before reaching
our decision in this case, we carefully considered the arguments now
set forth by the Service. The Service's motion has failed to convince us
that our decision was wrong. No evidence has been presented as to
what specific, practical impact our construction of the domicile requirement will have on the enforcement of the immigration laws, or of
any other adverse effects which we have not considered.
In connection with its principal argument, the Service also contends
that the time after the applicant was paroled into the United States
should not be considered part of his lawful domicile for section 212(c)
purposes. As we said in our decision, the seven years' requirement can
be perfected while an alien is temporarily out of the United States.
Matter of C—,
1 I&N Dec. 631 (BIA 1943; A.G. 1944), is not, contrary to
the Service's statement, distinguishable. The Service alleges that the
applicant in the present case made an application for entry, prior to
accumulating his seven years' domicile, which was denied. This is not
so. When the applicant sought entry in March of 1972, he was paroled
into the country: his application for entry was neither denied nor
granted. Matter of C—, as held in our original decision, remains the
controlling precedent. Cf. Matter of Salmon, Interim Decision 2703
(BIA 1979); Matter of Mosqueda,
14 I&N Dec. 55 (R.C. 1972); Matter of
S—,
6 I&N Dec. 392 (BIA 1954; A.G. 1955).
Finally, the Service argues that the circumstances of the respondent's departure from the United States after serving his prison term
323
Interim Decision #2779
indicated that he then abandoned his residence. As we noted in our
original decision, the record reflects that the applicant was not notified, as he should have been, of his options at the time he returned to
Mexico, i.e., to abandon his right of residence, or to defend it in an
exclusion proceeding. The Service's failure to so notify the applicant
should not now be used against him by finding any abandonment of
residence. The record in fact indicates that the respondent never
intended to abandon his lawful permanent residence.
We recognize that our disposition of this case raises several problems, and leaves some issues unresolved. For example, our holding in
this case, and in Matter of M — , supra, may encourage an applicant for
212(c) relief who has left the United States to simply remain outside
the country until his seven years of lawful unrelinquished domicile
have accumulated (provided, of course, that he could then still show
that he had not abandoned his United States domicile). Also, questions
may arise with regard to our emphasis on an alien's "entry" in this
case, in light of the decision in Francis v. INS, 532 F.2d 268 (2 Cir.
1976), and this Board's acceptance of that decision in Matter of Silva,
16 MN Dec.26 (BIA 1976).1 Finally, we recognize the potential difficulties which may be caused by our dictum in this precedent decision, to
the effect that an "adjudication" of deportability terminates an alien's
"lawful status."
Despite the problems presented by our prior decision, and the questions it left unanswered, we have decided not to reconsider our decision. The decision we previously reached was adequate to resolve the
problems directly raised in the case, and we leave to another day the
resolution of the problems mentioned here.
ORDER. The motion is denied.
' The court in
Francis, supra, held that an alien could be granted a 212(c) waiver
despite the fact that he had not departed the United States, and had hence made no
reentry.
324
