Interim Decision #2789
MATTER OF PRZYGOCKI
In Deportation Proceedings
A-8241801
Decided by Board March 21, 1980
(1) In view of the absence of statutory and regulatory sanctions for "conditional"
waivers of inadmissibility under section 212(c) of the Act, 8 U.S.C. 1182(c), no authority is found for granting such relief subject to conditions subsequent.
(2) Section 212(c) relief should be unconditionally granted as to specified grounds of
inadmissibility where an alien establishes that relief is warranted.
(3) Immigration judge's grant of section 212(c) vacated and the record remanded for
further proceedings where the respondent had been granted section 212(e) relief
conditioned upon not violating "the criminal laws of any state or the United States for
a period of five years ...."
ON BEHALF OF RESPONDENT: Darwin A. Hindman, Jr., Esquire
300 Guitar Building
Columbia, Missouri 65201
Bx Milhollan, Chairman; Maniatis, Appleman, Maguire and Farb, Board Members
The Service appeals from the February 15, 1978, decision of the
immigration judge conditionally granting the respondent's application
for relief under section 212(c) of the Immigration and Nationality Act,
8 U.S.C. 1182(c). The record will be remanded for further proceedings
and the entry of a new order.
The respondent is a 29-year-old native of Germany and citizen of
Poland who last entered the United States as a lawful permanent
resident in 1952. In May 1975, he was convicted in a Missouri state
court for unlawfully selling a quantity of marijuana and was sentenced
to confinement for a period of five years. He was thereafter charged
with being deportable under section 241(a)(11) of the Act, 8 U.S.C.
1251(a)(11).
Deportation proceedings were held in November 1976 and April 1977
while the respondent was still in confinement. The respondent denied
deportability, but was, properly found deportable as charged. The
remainder of the proceedings below concerned the respondent's application for relief under section 212(c) of the Act. See Matter of Silva, 16
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I&N Dec. 26 (BIA 1976).
The record indicates that the respondent entered this country while
under two years of age and that he has lived here ever since. Evidence
submitted in support of the application for relief indicates that: The
respondent's father is deceased. The respondent cared for his mother,
who has suffered from mental illness, until she was committed to a
mental institution in 1974. He assists in supporting his mother when
he is able and provides her "affection and moral support." He has a
United States citizen sister and two citizen children.' He has no relatives, friends or acquaintances outside of the United States and is "not
really" familiar with any language other than English. He has suffered
from drug dependency in the past, which he indicates is the cause of his
criminal record (including a 1969 burglary conviction). While in confinement the respondent earned a high school equivalency degree and
college credits by taking part in a part-time college program. His
confinement record has been "quite good" according to a 1976 report
prepared by his caseworker at the state institution. The caseworker
believed that the respondent would be a "productive, responsible person upon his release from incarceration."
After considering the equities and adverse matters in the respondent's ease, the immigration judge determined that favorable discretionary relief was warranted. He found that the record indicated that a
"reformation [had] taken place." The immigration judge then sought
to conditionally grant the application for section 212(c) relief subject
to the respondent not violating "the criminal laws of any state or of the
United States for a period of five years .. . ." By further order, the
immigration judge provided that if the respondent was convicted of an
offense within five years, the application for relief was automatically
revoked and the respondent would be deported.
The Service appeals from the immigration judge's exercise of discretion, submitting that favorable action was inappropriate in view of the
respondent's "extensive and serious criminal record which extends
from the age of 17 until his present confinement and the lack of any
real showing that he has truly reformed."
We will first address the issue of the immigration judge's authority
under law and regulation to grant section 212(c) relief subject to
specified conditions subsequent. The predecessor provision to section
212(c) of the 1952 Act was the seventh proviso to section 3 of the 1917
Immigration Act. That proviso read:
That aliens returning after a temporary absence to an unrelinquished United States
domicile of seven consecutive years may be admitted in the discretion of the Attorney
General, and under such conditions as he may prescribe.
' The respondent is divorced from his wife and their children are in her custody.
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In view of the express statutory language authorizing the Attorney
General to prescribe conditions to grants of relief, the Board held that
restrictions could validly be placed on a grant of seventh proviso relief.
See Matter of V—I—, 3 I&N Dec. 571, 573 (BIA 1949); Matter of L—,
2
I&N Dec. 486 (BIA 1946; A.G. 1946). Such conditions ordinarily
pertained to the applicant remaining a person of good moral character
and not subsequently committing "any offenses." The orders specified
that revocation could only occur "after hearing." See, for example,
Matter of 4 I&N Dee. 180 (C.O. 1950; BIA 1951; A.G. 1951); Matter
of G—Y—G—,
4 I&N Dec. 211 (BIA 1950; A.G. 1951).
The seventh proviso was superseded by section 212(c) of the 1952
Act. This section provides:
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). Nothing contained in this
subsection shall limit the authority of the Attorney General to exercise the discretion
vested in him under section 211(b).
The language in section 212(c), thus, contains no express provision for
conditional grants of relief as had been the case with the seventh
proviso. Nonetheless, in cases involving waivers of crimes, the Board
continued using the same "conditional" orders when relief was granted
under section 212(c) as had been used when relief was granted under
the seventh proviso. See Matter of G—A—, 7 I&N Dec. 274 (BIA 1956);
Matter of S—,
6 I&N Dec. 392 (BIA 1954; A.G. 1955); Matter of F—,
6
I&N Dec. 537 (BIA 1955); Matter of M—,
5 I&N Dec. 598 (BIA 1954).
Compare Matter of A—,
7 I&N Dec. 327 (B.C. 1956) (involving inadmissibility based on a prior attack of insanity). The last published Board
decision involving a conditional grant of relief was in 1963. See Matter
of Edwards,
10 I&N Dec. 506 (BIA 1963, 1964).
The question of whether conditional grants of relief were authorized
under the provisions of section 212(c) was never specifically addressed
by the Board. Apparently, no recipient of such a grant felt any need to
challenge its conditional nature and the Board is unaware of ever
reviewing an attempted section 212(e) "revocation" action? The practice of using conditional grants, of section 212(c) relief may have simply
resulted from a continued utilization of seventh proviso "format"
orders without any consideration of the fact that the specific language
authorizing "conditional" waivers contained in the seventh proviso did
not make its way into section 212(c) of the 1952 Aet.
In any case, in view of the absence of statutory and regulatory
2 No statutory or regulatory mechanism for such "revocation" proceedings exist. Nor
can "rescission" of section 212(c) relief be accomplished under section 246 of the Act.
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sanctions for "conditional" section 212(0 waivers of inadmissibility',
we cannot find authority for the continued use of such grants of relief.
See, generally, Fulgencio v. INS, 573 F.2d 596 (9 Cir. 1978) (involving
"conditional" grants of adjustment of status under section 245 of the
Act). Such relief should instead be unconditionally granted as to
specified grounds of inadmissibility to those cases where an alien
establishes that relief is warranted; thus, returning the alien to the
same lawful permanent resident status previously held' Accordingly,
in this case, the immigration judge's conditional orders of February 15,
1978, will be vacated.
Moreover, as two years have elapsed since the last consideration of
this application for relief, as the respondent was incarerated at the
time of the application and as the nature of the immigration judge's
conditional order suggests reservations concerning his finding of a
"reformation," the proceedings will be remanded for further evidence
regarding the respondent's post-conviction behavior and his
rehabilitation. A new decision regarding his application for section
212(o) relief should then be entered.
ORDER The February 15, 1978, orders of the immigration judge
are vacated.
FURTHER ORDERe The record is remanded to the immigration
judge for further proceedings in accordance with the above decision
and for the entry of a new decision.
' Compare section 212(g) of the Act which had its origins in section 5 of the Immigration Act of September 11, 1957, and which includes express language authorizing
admission of certain aliens "in accordance with such terms, conditions, and controls, if
any... as the Attorney General ...may by regulations prescribe." See also section 212(h)
of the Act.
' The immigration judge's order here left the respondent in a questionable and
tenuous status. On its face, the orders would result in the respondent being immediately
deportable, without further hearing, if any criminal conviction occurred within five
years, no matter how technical or minor the offense or how mitigating the surrounding
circumstances.
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