BOWE

Interim Decision #2819




                                MATTER OF BOWE
                          In Deportation Proceedings
                                     A-17261914
          Decided by Board August 28, 1980; December 17, 1980
                          and April 23, 1981

(1) In Bowe v. INS, 

 (9 Cir. 1979), and Nicholas v. INS, 

 (9 Cir.
  1979), the Ninth Circuit held that relief under section 212(c) of the Immigration and
  Nationality Act, 8 U.S.C. 1182(c), was unavailable to aliens who are deportable under
  section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11).
(2) Board wag bound by these Ninth Circuit decisions; regarding unavailability of section
  212(e) waivers to aliens facing deportation under section 241(a)(11) in the Ninth
  Circuit.
(3) Where the Ninth Circuit in Tapia-Acuna v. INS, 

 (9 Cir. 1981), reverses
  Sts prior decisions in Bowe v. INS, supra, and 

 and where the Immigration and Naturalization Service withdraws request for certification of case to Attorney General, Board remands record to enable, respondent to present section 212(c)
  application to immigration judge, as such relief is again available in that Circuit
CHARGE:
  Order. Act of 1952—See. 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of violation of
                        law relating to narcotic drugs or marijuana
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
 Donald L. Ungar, Esquire                               Paul W. Schmidt
 517 Washington Street                                  Deputy General Counsel
 San Francisco, California 94111
                                                        Jim. Tom Haynes
                                                        Appellate Trial Attorney


                            BEFORE THE BOARD
                               August 28, 1980
BY:   Milhollan, Chairman; Maniatis, and Farb, Board Members. Board Member
      Maguire, Concurring; Board Member Appleman, Dissenting.


  The respondent has filed a motion to reopen his deportation proceedings so that he may file an application for a waiver under section 212(e)
                                          488
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of the Immigration and Nationality Act, 8 U.S.C. 1182(c), in conjunction with an adjustment of status application under section 245 of the
Act, 8 U.S.C. 1255. The Immigration and Naturalization Service does
not oppose the motion. Nevertheless, the motion will be denied.
   Previously, on February 14, 1978, this Board denied the respondent's
212(c) application as a matter of discretion. The United States Court of
Appeals for the Ninth Circuit, on April 23, 1979, affirmed the Board on
the ground that 212(c) relief is unavailable to an alien who is deportable for a drug offense under section 241(a)(11) of the Act, 8 U.S.C.
1251(a)(11). Bowe v. INS, 

 (9 Cir. 1979). The respondent
argues that he can obtain the relief now sought, despite the ruling of
the Ninth Circuit, because the 212(c) application previously before the
Board and the Court was not made in conjunction with an adjustment
application.' The Service, in its memorandum supporting the motion,
urges the Board to disregard the Ninth Circuit precedent decisions
cited in Bowe and to adhere to the Board's decision in Matter of Silva,
16 I&N Dee. 26 (BIA 197E). We stated there, following Francis v. INS,

 (2 Cir. 197E), that an alien convicted of a crime which
renders him excludable is eligible to apply in deportation proceedings
for the benefits of section 212(c) if he has the requisite lawful unrelinquished domicile, even if he is not an applicant for readmission from
outside the United States, and has not been such an applicant since the
act which rendered him excludable.
  We do not accept the Service's suggestion that Matter of Mangabat,

 (BIA 1972), Ord, 

 (9 Cir. 1973), cert. denied,

 (1973), allows us to reject Ninth Circuit precedents regarding section 212(e) in the case now before us. In Matter of Mangabat, the
Board declined to apply a Ninth Circuit precedent in a case arising in
that circuit. It was emphasized, however, that the position taken by the
Ninth Circuit on the issue involved there (the availability of section
241(f) relief) had been expressly disapproved by the Attorney General,
and the Solicitor General had challenged the Court's position in a
petition for certiorari filed in the Supreme Court. In the present case,
no representation has been made that the Attorney General agrees
with the Service's position that the Ninth Circuit has erred in its
interpretation of section 212(c), and that he is willing to support a
petition for certiorari to the Supreme Court in an appropriate case.
The fact that the respondent's 212(c) application is now made in
conjunction with a 245 application does not change the fact that in

  ' The respondent married a United States citizen on December 9, 1977. A visa petition
was filed by the respondent's wife on October 11, 1979, together with the respondent's I-
485 adjustment application. Also, the respondent recently completed his period of
probation (evidence of rehabilitation relevant to applications for discretionary relief).


                                          A QC1
Interim Decision #2819
Bowe, the Court flatly stated that 212(c) relief is unavailable to aliens
facing deportation under section 241(a)(11) for drug offenses. Furthermore, we disagree that we are free to decline to follow the Ninth
Circuit's decision in 

 in Bowe's own case. We believe that
the Court's decision in Bowe is, res judicator and binding on this Board.
   Although the Court cites in Bowe, 

 a series of Ninth Circuit
decisions as if they consistently provided the same legal interpretation, analysis reveals variations which leave us confused. This line of
cases began with Arias-Uribe v. INS, 466 F2d 1198 (9 Cir. 1972). Arias-Uribe involved an alien who was deportable under section 241(a)(11)
for a narcotics violation, and who sought relief from deportation under
section 212(c). The Court discussed certain Board decisions regarding
the availability of 212(c) relief in deportation proceedings, but distinguished them from the case before it because the aliens in the Board
cases had been excludable at the time they last entered the United
States.' Of these cases, the Court wrote,
  The Board held that discretionary relief was available and might be granted to effect a
  retroactive waiver of the ground of excludability existing at the time of the subject's
  entry and that if such relief was granted, then the basis for his deportation was
  entirely eliminated. Petitioner, however, is in a different situation. His deportation is
  sought, not because he was excludable at the time he last entered the United States, but
  because he was convicted of a narcotics offense of entering the United States. The
  Attorney General Is not given discretion by the Immigration laws to waive or suspend
  deportation for narcotics of fenders, nor is he authorized, once proceedings under
  f 241(a) are begun, to allow such persons to leave the country voluntarily in lieu of
  deportation. See 8 U.S.C. f 1254(a), (e).$ 

. (Emphasis added.)
   The actual holding in this case is somewhat unclear, especially given
the last sentence in the quoted passage, but we read the decision to
mean that the respondent could not obtain a 212(c) waiver because he
had not departed from the United States since the commission of the
act which rendered him excludable. A tune pro tune waiver of excludability could thus not be used, as it had been in the Board cases
cited. The headnote in Arias-Uribe, 

 appear to say that ineligibility
for 212(c) relief arises from the drug related nature of the ground of
deportability, but that is not our understanding of what the decision

    The cases distinguished by the Court were Matter of Eng,12I&N Dec. 855 (Mk 1968),
Matter of G—A—, 

 (BIA 1956), and Matter of S—, 

 (BIA
1954, A.G. 1955). Matter of Smith, 

 (BIA 1965) was also mentioned, but
distinguished on other grounds in a footnote. Smith. will be discussed at further length,
infra.
  'We note that, contrary to the Court's statement, section 244(a)(2) of the Act, 8 U.S.C.
1254(a)(2) does allow narcotics offenders to obtain suspension of deportation, albeit
under somewhat more limited circumstances than other deportable aliens.
section 244(e) makes voluntary departure more difficult for drug offenders to obtain, but
not impossible. Neither section 244(a) nor (e) mentions waivers of deportability at all.

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                                                Interim Decision #2819
                                             •
itself says. We believe the case is more properly read to stand for the
proposition that 212(c) relief was unavailable because the respondent
had not departed from the United States since the time of his
conviction.
   Our interpretation of Arias-Uribe, 

 is supported by the next
Ninth Circuit case to address section 212(e), Dunn v. INS, 

(9 Cir. 1974), cert. denied, 

 (1975). This case, like Arias-Uribe, involved an alien who was deportable under section 241(a)(11) of
the Act. Dunn did not discuss 212(c) at any length; rather, it quickly
disposed of the respondent's 212(c) claim by stating,
 Petitioner urges that he should be eligible for discretionary relief from deportation
 under 212(c) of the Act, S U.S.C. § 1182(c), even though he is not technically "returning
 to the United States after a voluntary departure." In effect Petitioner is requesting
 advance permission to return to an unrelinquished domicile, despite the fact that
 otherwise he would be ineligible for admittance under 212(a)(23), 

(a)(23), as an "alien who has been convicted of a violation of ... any law or
 regulation relating to the illicit possession of or traffic in narcotic drugs or
 marihuana." -
   As petitioner recognizes in his brief, this precise contention was rejected by this
 court in Arias- Uribe v. Immigration and Naturalization Service, 

 (9 Cir.
 1972). We remain persuaded that this case properly interprets the statute. 

 at 857-
 858.
Despite another somewhat misleading headnote, we believe that the
key to the result in Dunn, like that in 

 is the
absence of a departure after the alien's excludable act. That the
excludable act in both cases happened to be a drug offense appears to
be incidental, not determinative.
   The next two eases of interest are Nicholas v. INS, 

 (9
Cir. 1979), and 

 In Nicholas, the Court addressed several
issues, but with respect to 212(c) it had only this to say: "Relief under
212(c) has been held to be unavailable to an alien facing deportation
for conviction of a drug-related crime, pursuant to 8 U.S.C.
1251(a)(11)." The authority it cites for this rule: 

and 

 cited this exact language in finding this
respondent ineligible for 212(c) relief. It simply added 

to its list of authority. No further discussion of the issue was offered.
   Another Ninth Circuit case to mention section 212(c), Castillo Felix
v. INS, 

 (9 Cir. 1979), did not involve alien drug offender,
and did not directly address the problems at issue here. In an interesting footnote, however, the Court mentioned "an apparent conflict
between this circuit and the Second Circuit," noting that the Second
Circuit in Francis v. INS, supra, held that the denial of section 212(c)
relief to aliens who had not fortuitously departed from the United
States after committing an excludable offense, while granting it to
those who had, was a violation of equal protection. The Second Circuit

                                         491
                                                            Interim Decision #2819
itself says. We believe the case is more properly read to stand for the
proposition that 212(c) relief was unavailable because the respondent
had not departed from the United States since the time of his
conviction_
   Our interpretation of Arias-Uribe, id., is supported by the next
Ninth Circuit case to address section 212(c), Dunn v. INS, 

(9 Cir. 1974), cert. denied, 

 (1975). This case, like Arias-Uribe, involved an alien who was deportable under section 241(a)(11) of
the Act. Dann did not discuss 212(c) at any length; rather, it quickly
disposed of the respondent's 212(c) claim by stating,
  Petitioner urges that he should be eligible for discretionary relief from deportation
  under 212(e) of the Act, 8 U.S.C- § 1182(c), even though he is not technically "returning
  to the United States after a voluntary departure." In effect Petitioner is requesting
  advance permission to return to an unrelinquished domicile, despite the fact that
  otherwise he would be ineligible for admittance under 212(a)(23), 

(a)(23), as an "alien who has been convicted of a violation of ... any law or
  regulation relating to the illicit possession of or traffic in narcotic drugs or
  marihuana_"                       -
    As petitioner recognizes in his brief, this precise contention was rejected by this
  court in Arias-Uribe v. Immigration and Naturalization Service, 

 (9 Cir.
  1972). We remain persuaded that this case properly interprets the statute. 

 at 857-
  858.
Despite another somewhat misleading headnote, we believe that the
key to the result in Dunn, like that in 

 is the
absence of a departure after the alien's excludable act. That the
excludable act in both cases happened to be a drug offense appears to
be incidental, not determinative.
   The next two cases of interest are Nicholas v. INS, 

 (9
Cir. 1979), and 

 In Nicholas, the Court addressed several
issues, but with respect to 212(c) it had only this to say: "Relief under
212(c) has been held to be unavailable to an alien facing deportation
for conviction of a drug-related crime, pursuant to 8 U.S.C.
1251(a)(11)." The authority it cites for this rule: 

and 

 cited this exact language in finding this
respondent ineligible for 212(c) relief. It simply added 

to its list of authority. No further discussion of the issue was offered.
   Another Ninth Circuit case to mention section 212(c), Castillo Felix
v. INS, 

 (9 Cir. 1979), did not involve alien drug offender,
and did not directly address the problems at issue here. In an interesting footnote, however, the Court mentioned "an apparent conflict
between this circuit and the Second Circuit," noting that the Second
Circuit in Francis v. INS, supra, held that the denial of section 212(c)
relief to aliens who had not fortuitously departed from the United.
States after committing an excludable offense, while granting it to
those who had, was a violation of equal protection. The Second Circuit

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Interim Decision #2819

therefore held 212(c) to be available whether or not the "actual departure" requirement of that section had been met. The Ninth Circuit,
after describing Frauds, and adding that the INS [sic] had "acquiesced" in the Francis holding (in Matter of Silva, supra) (in fact it was
this Board, not the Service, which determined to apply 

nationwide), stated, "This circuit, however, continues to recognize the
actual departure requirement." Castillo-Felix at 462, n.6. It cited for
this comment its prior decisions in 

 and 

 Castillo-Felix thus lends support to our analysis of the line of
Ninth Circuit 212(c) cases, and to our belief that Nicholas and 

 misinterpreted Arias-Uribe and 

 inasmuch as the
latter two cases appear to us to turn on the lack of a departure, not on
the drug-related nature of the offense.
   The most recent published decision of the Ninth Circuit addressing
section 212(c), Mondragon v . llchert,     F.2d , No. 78-3051(9 Cir.
January 25, 1980), added further confusion to this area. In a broad
holding it flatly stated that,
 Although several circuits and the Board of Immigration Appeals have extended the
 applicability of section 1182(c) to deportation proceedings such as this under f 1454
 this circuit has declined to do so.
The cases it cited for this proposition were not Castillo-Felix, AriasUrthe, or 

 but rather Rowe and 

 the eases
holding section 212(c) to be unavailable to drug offenders. Mondragon,
we also note, did not involve an alien who was deportable on drug-related charges; it involved an alien deportable under section 241(a)(2)
for entry without inspection. Also, unlike the other Ninth Circuit cases
discussed, Mondragon involved an alien who had departed from the
United States since the Act rendering him excludable. He had then
reentered, and the Court found 312(c) to be unavailable simply because
he was in deportation proceedings.
  None of the Ninth Circuit cases discussed above has explained why
section 212(e) should be unavailable to drug offenders, particularly in
deportation proceedings. That section in fact includes drug offenders
within its stated terms. To be sure, it specifies that the waiver is
available to aliens who are excludable as drug offenders under section
212(a)(23), and does not mention aliens who are deportable as persons
convicted of drug related crimes under section 241(a)(11). So far the
Court has not explained how the apparently anomalous results the line
of cases discussed above may produce would be reconcilable with the
legislative intent that excludability of some narcotic offenders may be
waived.
  We are not persuaded by the respondent's argument that reopening
is warranted because his case is now presented in a wholly different

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posture in that his 212(c) application is now made in conjunction with
a section 245 appliCation. He claims that the actual departure requirement of Arias-Uribe, Dunn, and 

 is met because
he, as an applicant for adjustment, is now in the position of one seeking
to make a new entry. He relies for this theory on Matter of Smith, 

 (BIA 1965). In Smith, which predated the Francis and
Silva holdings, supra, this Board held that a 212(c) application could be
considered in conjunction with an adjustment of status application in
deportation proceedings. The rationale was that,
  An applicant for adjustment of status under section 245 stands in the same position as
  an applicant who seeks to enter the United States with an immigration visa for
  permanent residence.... Since this respondent, as an applicant for relief under section 245, is subject to all of the exclusion provisions of section 212(a), we find no valid
  reason for denying him the benefits of section 212(c) on the technical ground that he is
  not returning to the United States after a voluntary departure. Matter ofSmith, supra,
  at 326-327.
  Matter of Smith, id., may still be relevant law in the Ninth Circuit
(outside of that Circuit, where Francis and Silva, supra, control, the
need for Smith has been obviated), but, even if accepted as the law in
that Circuit, it would solve only the actual departure problem; it could
not negate the Ninth Circuit's decisions holding 212(c) relief unavailable to drug offenders. The respondent argues that the decisions in
Nicholas and 

 were wrong in finding 212(c) unavailable to
drug offenders, and that those decisions were not supported by the
cases on which they relied, Arias-Uribe and 

 We are,
however, bound by the Ninth Circuit's decision in Bowe's own case,
holding 212(c) strictly unavailable to him because he is deportable
under section 241(a)(11). The section 245 application does not change
this essential fact. Moreover, we believe that other aliens in Bowe's
position, who are deportable under section 241(a)(11), are ineligible for
212(c) relief in the Ninth Circuit and that 

 and 

 require this Board to find them so.
   As we hold that the Court's rulings are binding upon us, we have no
alternative but to deny this motion.
   ORDERS The motion is denied.
CONCURRING OPINION:       Mary P. Maguire, Board Member
   While I concur in the result, I would deny the motion to reopen and
 ' The Ninth Circuit in Arias- 

 specifically reserved the question of whether
Matter of Smith, supra, correctly interpreted the law. Arias - Uribe at 1199, n.& It thus
remains an open questiun whether a non departing, non-dreg offender alien may obtain
a 212(c) waiver in conjunction• with adjustment of status in the Ninth Circuit. The recent
broad holding in Mondragon, supra, may, however, indicate that the Ninth Circuit would
not accept the Smith decision.

                                            493
Interim Decision #2819

hold that an applicant for adjustment of status under section 245 of the
Act is not eligible for section 212(c) relief_
  Thiscase illustrates the problems which result from strained interpretations of the Immigration and Nationality Act. The language of
section 212(c) of the Immigration and Nationality Act is clear: an alien
is eligible for a waiver of certain grounds of inadmissibility, including
a narcotics conviction, if he is a lawful permanent resident who
temporarily and voluntarily departed the United States and who is
returning to a lawful unrelinquished domicile in the United States for
seven consecutive years prior to reentry.
   This Board began diluting such requirements in a line of cases which
prompted the Second. Circuit to hold in Francis v. INS, 

 (2
Cir. 1976), that a lawful permanent resident who became deportable
after entry was eligible for section 212(c) relief even though he had
never made a temporary departure and reentry. The Francis decision
was adopted by this Board and applied on a nation wide basis in Matter
of Silva, 

 (BIA 1976).
   The majority states that the cases cited by the Ninth Circuit in Bowe
v. INS, 597 le.2d 1158 (9 CU. 1979), affirming the Board's denial in
discretion of the respondent's application for section 212(c) relief, are
confusing. Such confusion results from a reading of the headnotes, not
from a reading of the Court's decisions. What is clear from the various
Ninth Circuit decisions analyzed in the majority opinion is that the
Ninth Circuit has continued to apply section 212(c) as it was intended
to be applied, i.e., as a waiver for a ground of excludability for a
returning lawful permanent resident alien.
  In my. opinion, the majority erroneously reads the Ninth Circuit
decisions as holding that section 212(c) relief is unavailable to drug
offenders. Such a reading does not go far enough. I read Ninth Circuit
decisions to hold that section 212(c) relief is available to a drug
offender only if he voluntarily departs the United States and is inadmissible under section 212(a)(22) as a convicted drug offender upon his
return_ Since this respondent never departed the United States after
his drug conviction, he is not entitled to section 212(c) relief. Bowe v.
INS, supra.
  Because the majority misreads the Ninth Circuit's decisions relating
to the availability of section 212(c) relief, the majority finds that
Matter of Smith,

 (BIA 1965), may still be relevant law
in the Ninth Circuit. In Smith, this Board held that a section 212(c)
application could be considered in conjunction with a section 245
adjustment of status application in deportation proceedings. The
majority indicates that Smith would solve the actual departure problem but would not negate the Ninth Circuit's decisions holding 212(c)
relief unavailable to drug offenders.

                                  494
                                                  Interim Decision #2819
   Such a conclusion is based on an erroneous premise which indicates
a lack of understanding of the Ninth Circuit position with respect to
the actual departure requirement and a failure to recognize the nature
of adjustment of status under section 245 of the Act. The majority,
therefore, does not address fully the impact of Smith on this case. If
one were to apply the holding in Smith to this respondent, he would be
prima facie eligible to apply for section 245 adjustment of status since
he is the beneficiary of an approved visa petition, has an immigrant
visa immediately available to him, was inspected on his last admission,
and has submitted a section 212(c) application. But Smith creates a
fictional remedy for the non-departing alien who has become deportable after entry. It oversimplifies completely, in my opinion, the nature
of adjustment of status. In Smith, the Board reasoned that an applicant for adjustment of status under section 245 stands in the same
position as an applicant who is seeking entry into the United States
with an immigrant visa for permanent residence. With that premise I
have no quarrel. The Board then went on to state that an applicant for
section 245 adjustment of status is subject to all of the exclusion
provisions of section 212(a). Again, I have no quarrel with that
statement.
   However, I cannot make the leap from those two premises to the
Board's conclusion in Smith that since the section 245 applicant is
subject to all of the 212(a) exclusion provisions there is no valid reason
to deny him the benefits of section 212(c) on the "technical ground"
that he is not returning to the United States after a voluntary departure. The logical extension of such reasoning is to find all applicants for
admission entitled to apply for the benefits of section 212(c) relief.
Section 245 applicants are presumably not lawful permanent residents
—they would have no need to apply for adjustment of status if they
were permanent residents. Since they are not permanent residents,
they cannot be found to be assimilated to the status of a returning
resident alien who seeks relief under section 212(c) for the purpose of
returning to his lawful unrelinquished 7-years continuous domicile in
the United States I would, therefore, overrule Matter of Smith, supra,
and deny the motion to reopen on the ground that an applicant for
adjustment of status under section 245 is not eligible for the benefits of
section 212(c).
DISSENTING OPINION:       Irving A. Appleman, Board Member
  I respectfully dissent.
  I cannot accept the majority conclusions (a) that the Ninth Circuit
precedents bar any possibility of a section 212(c) waiver in conjunction
with an adjustment of status under section 245 since the respondent is

                                   495
Interim Decision #2819
a narcotic offender and (b) that the prior holding in Bowe v. INS, 

 (S Cir. 1979), has created an estoppel by judgment to granting the present motion.
  In Matter of Arias-Uribe,

 (BIA 1971), this Board held
that an alien convicted of a narcotics offense after entry and therefore
deportable under section 241(a)(11), was statutorily ineligible for a
section 212(c) waiver, inasmuch as he was not an alien returning to the
United States to resume a lawful domicile of 7 years after a temporary
and voluntary absence subsequent to his conviction. We distinguished
such a case from other cases in which the relief had been granted (1)
nuns pro tmee to cure a ground of deportability originating in inadmissibility at the time of a previous entry, when the alien was eligible for
the relief, Natter of G— A—, 7 l&N Dec. 274 (BIA 1956), or, (2) to an
applicant for adjustment of status under section 245(a), 8 U.S.C.
1255(a), who, in order to meet the requirement of section 245(a)(2) that
he is "eligible to receive an immigrant visa and is admissible ...," had
coupled his adjustment application with a request for a waiver under
section 2124(c), of a ground of inadmissibility which would otherwise
have barred the adjustment. Matter of Smith, 

 (DIA
1965).
  In both (1) and (2), notwithstanding the application was made
during a deportation proceeding, relief under section 212(c) derived
authority from the words "may be admitted" in that section, and the
waivers were of specific grounds of excludability specified in that
section. See Concurring Opinion, Matter of Silva, 

, 30
OA 1976)- It is the second type of request which is before us today,
namely, for a waiver under section 212(c) in conjunction with an
application for adjustment of status.
  In noting our authority to rule on such an application, in Matter of
Smith, supra, we assimilated an applicant for section 245 adjustment
of status (the Immigration and Nationality Act replacement for the
cumbersome and expensive "preexamination" procedure which had
evolved under prior legislation) to an applicant seeking to enter the
United States with an immigration visa.
  The Ninth Circuit has repeatedly held that an alien seeking adjustment under section 245 is assimilated to an alien seeking to enter the
United States for permanent residence. Thus, in Amarante v.
Rosenberg, 

 (9 Cir. 1964), the Court held that the Attorney
General's action in adjusting an alien's status to that of a permanent
resident "is equivalent to the issuance of a visa by a United States
Consul outside the United States." 

. Final. authority "rests
with the consular office (or Attorney General under section 245) who
grants the alien's application and actually accords the nonquota
status." Id at 62 (emphasis supplied). See also Campos v. INS, 402 F.2(1
                                  496
                                                           Interim Decision #2819
758 (9 Cir. 1968); Honig, v. INS, 

 (9 Cir. 1976). Cf.
Khadjenouri v. INS, 

 (9 Cir. 1972).
  It is against this background that Arias-Uribe v. INS, 

(9 Cir. 1972), and succeeding cases of the Ninth Circuit, should be read.
Rather than reflecting inconsistency, the Ninth Circuit decisions have
uniformly required compliance with the express terms of section
212(c). The relief cannot be considered unless it involves a waiver of a
specified ground of excludability which would prevent an otherwise
lawful permanent resident from resuming a lawful domicile here. In
Arias-gibe v. INS, the Court pointed out that the alien's deportation
was not sought because he was excludable at the time he last entered
the United States, but because he was convicted of a narcotics offense
after entering the United States, and hence he did not come within the
language of 212(e).
   Significantly, in a footnote, the Court said as to the Board's holding
in Matter of Smith, supra, respecting the availability of section 212(c)
in conjunction with an adjustment of status, "We need not decide
whether this interpretation is correct since adjustment of status is
unavailable to natives of any country in the Western Hemisphere."'
Arias-Uribe v. INS, at 1199, n.3.
  So far as known, to date the Ninth Circuit has not passed on the
availability of section 212(c) relief in conjunction with an application
for adjustment of status. The respondent has moved to reopen his
deportation proceedings. He has alleged that he married a United
States citizen subsequent to his hearing and that she has filed a visa
petition for him. He has completed his period of probation. He has filed
an application under section 245 and claims to be eligible for that relief
(see Matter of Garcia, 

 (BIA 1978)). He now requests
consideration of a waiver under section 212(c), of inadmissibility under
section 212(a)(23) because of his narcotics conviction, in conjunction
with his application for adjustment. His application and these facts
were not before the Court when it decided Baum v. INS, supra; neither
was the issue of availability of section 212(c) relief in conjunction with
section 245. I know of no holding of that circuit which dictates an
adverse ruling on the point. Since there was no adjudication in Bowe v.
INS, of the question now raised before us, and the issue was not
previously litigated, I do not regard the decision of the court as an
estoppel by judgment on this point of law. In re Yarn Processing
Patent Validity Litigation, 

 (5 Cir. 1974), cert. denied,

 (1974).
  I am equally unable to go along with the majority's additional basis

 ' This provision has since been deleted. Section 245(c) as amended by section 6, Act of
October 20, 1976, 

 Stat. 2706

                                          497
Interim Decision #2819
for denial, that relief is barred merely because Bowe is deportable
under section 241(a)(11). In Arias-Uribe v. INS, supra, the Court accepted the reasoning of the Board, that the relief was unavailable
because deportability arose from circumstances occurring after the
alien'sr entry, whereas section 212(c), by its literal language, pertains
only to inadmissibility at the time an entry either occurred, or will
occur. The Court's further comments in Arias-Uribe respecting deportability arising from a narcotics offense, are dicta, which only emphasize the distinction between an exclusion ground and a deportation
ground, in the exercise of this particular relief. The reference to drug
offenders in succeeding decisions which rely on Arias-Uribe would
seem to be largely a fortuitous circumstance, stemming from the
nature of the deportation charge in each of those cases. See Dunn v.
INS, 

 (9 Cir. 1974), cert. denied., 

 (1975);
Nicholas v. INS, 590 F.2d :802 (9 Cir. 1979); Bowe v. INS, supra. There is
no legal basis for distinguishing drug offenders from other deportable
aliens in these circumstances.
  That the result would have been the same for any deportation charge
not tied to an entry, gains some support from Castillo Felix v. INS, 

 (9 Cir. 1979), a recent Ninth Circuit decision where the
deportation charge was not drug related, but in which the Court
rejected the relief. In Castillo-Felix also, the Court, in noting its
apparent conflict with the Second Circuit decision in Francis v. INS,

 (2 Cir. 1976), stated, "This circuit, however, continues to
recognize the actual departure requirement," citing 

—language which one may interpret as meaning the relief is available
only in connection with reentry after a departure (real or assimilated),
and then only for waiver of a ground of excludability specified in
section 212(e). See also Mondragan v. 17,chert,       F.2d No. 78-
3051 (9 Cir. January 25, 1980). I therefore differ with so much of the
majority decision as would find the respondent automatically barred
from the relief merely because he is a drug offender_ There is a
substantial difference between a waiver of a ground of deportation
under section 241(a)(11), which was rejected in Bowe v. INS, supra,
and a waiver of an exclusion ground under section 212(a)(23), which he
now seek and which is included in the specified grounds of section
212(c).
  Clearly the Ninth Circuit is unwilling to accept section 212(c) as an
alternate deportation relief standing by itself. Its rejection of 

 makes this clear once again. It has consistently held to this
position. Mondragan v. Ilchert, supra, cited by the majority, is but
another example of this. Mandl-ago-A was charged under section
241(a)(2) of the Act, 8 U.S.C. 1251(a)(2), with having entered without
inspection. There is no provision in section 212(c), as a matter of law,
                                   498
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for a waiver of such a charge. It is not a specified ground of exclusion,
nor is there even an exclusion ground comparable to the deportation
ground. Matter of Granados, 

 (BIA 1979). However, it
does not follow that section 212(c) relief, when it concerns a waiver of a
ground of excludability that is within the express language of the
section, and is coupled with the safeguards written into the adjustment procedure by the statute and implementing regulations, would
not he acceptable to that Court. In any event, I am unwilling to reach
that conclusion in the present state of the law and am unwilling to
accept what I regard as an oversimplistic analysis of Bowe v. INS,
supra, and related cases.
  I would grant the motion and direct reopening of the proceedings.


                             BEFORE THE BOARD
                               December 17, 1980
BY:   Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members


   The Immigration and Naturalization Service has filed a motion for
reconsideration of our decision, dated August 22, 1980, in the abovenamed case. In our prior decision, we denied the respondent's unopposed motion to reopen his deportation proceedings to enable him to
apply for a waiver under section 212(c) of the. Immigration and Nationality Act, 8 U.S.C. 1182(c), in conjunction with an adjustment of status
application under section 245 of the Act, 8 U.S.C. 1255. Matter of owe,
Interim Decision 2819 (BIA 1980). The motion to reconsider will be
denied.
   In our decision of August 28, 1980, we found that, under Ninth
Circuit precedent as set forth in Bowe v. INS, 

 (9 Cir.
1979) and Nicholas v. INS, 

 (9 Cir. 1979), we were precluded
from finding the respondent eligible for 212(c) relief because he is
deportable under section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11).
Both counsel for the respondent, and for the Service, had argued that
the Court's decisions in Bowe v. INS, supra, and 

 were
not supported by prior Ninth Circuit case law, were not consistent with
Service and Board positions regarding 212(c) relief,' and that those

  ' The Board in Matter of Silva,

 (BIA 1976), decided to follow the Second
Circuit's decision in Francis v. INS, 

 (2 Cir. 1976), in which it was held that
212(c) relief is available to a permanent resident alien who has the requisite lawful
unrelinquished domicile, including one convicted of a narcotics offense and deportable
under section 241(a)(11), regardless of whether or not that alien had departed from the
United States since his excludable act.

                                           499
Interim Decision #2819

precedents need not and should not be followed. The majority of this
Board disagreed. It was determined that the Ninth Circuit precedents
had to be followed in cases arising in that circuit, and that the adjustment of status application filed with the 212(c) application did not
enable us to ignore the Ninth Circuit holdings that "Relief under
section 212(c) has been held to be unavailable to an alien facing
deportation for conviction of a drug-related crime, pursuant to 8 U.S.C.
1251(a)(11)." Bowe v. INS, supra, at 1158; 

.
  In its present motion to reconsider, the Service argues that this
Board is not bound by Ninth Circuit precedents in the section 212(c)
area. It now bolsters this argument by pointing out that, subsequent to
our decision in Matter of 

 the Solicitor General on October
2, 1980, filed a brief with the Supreme Court in support of its petition
for a writ of certiorari in the case of Tapia-Acuna v. INS, No. 80-74,
U.S.L.W. 3165. The petition for writ of certiorari was filed with the
Supreme Court on July 17, 1980, but neither the petition, nor the
reason for it, was made known to this Board prior to our decision in
Matter of 

 The brief urged the Court to remand the case to
the Ninth Circuit for reconsideration of that Court's prior decision
denying the alien 212(c) relief. The Government requested that the
Ninth Circuit be given the opportunity to reconsider its decision in
light of the present government position that 212(c) should be available to drug-offenders in deportation proceedings even in the Ninth
Circuit, and that the Ninth Circuit decisions holding the relief to be
unavailable to such aliens are incorrect.
   Although the Solicitor General in his brief before the Supreme
Court specifically stated that it was the Government's position that
Bowe v. INS, supra and 

 "are erroneous and should be
overruled," and although there exists a clear conflict among the circuits regarding the availability of 212(c) relief, thus paving the way for
the Supreme Court to make a ruling on the merits of this issue, the
Solicitor General did not seek a decision on the merits of the issue.
Rather, he specifically sought a remand of the case to enable the Ninth
Circuit to reconsider in view of the present government position. As
the Ninth Circuit has for 4 years been aware of the Francis decision,
supra, and of this Board's decision to apply Francis everywhere except
in the Ninth Circuit, but has in dictum expressed its disapproval of
those decisions,' it is interesting that the Solicitor General sought the
opportunity to ask the Court of Appeals to change its prior decisions,
instead of seeking to litigate the basic question before the Supreme
Court, and obtain a definitive decision there. In any event, the Supreme

 =See Mondragan v. Ikhert,           F.2d        , No. 78-3051 (9 Cir. January 25, 1980);
Castillo-Felix v. INS, 

, n.6 at 462 (9 Cir. 1979).

                                          500
                                                     Interim Decision #2819
Court on November 3, 1980, granted the writ of certiorari, and granted
the Government's request that the ease be remanded to the Ninth
Circuit "for further consideration in light of the position presently
asserted by the Solicitor General in his brief filed October 3, 1980."
Tapia-Acuna v. INS, 

 (1980).
  Thus, the very issue presently before us in this case, the availability
of 212(c) relief in the Ninth Circuit to aliens deportable under section
241(a)(11), is presently pending before the Ninth Circuit Court of
Appeals, by order of the United States Supreme Court. Under these
circumstances, it would be presumptuous for this Board to now reconsider this issue, as it has been specifically reserved to the Ninth Circuit
to reconsider it. The only appropriate course is to deny this motion and
await the outcome of the Tapia Acuna v. INS remand, supra, or of
                                      -


another Ninth Circuit decision, in this area, one which we hope would
address all of the problems raised in our prior decision in this case.
   In view of our determination that the Supreme Court's disposition of
the Tapia-Acuna v. INS case, supra, makes it inappropriate for us to
grant the Service's motion to reconsider, we need not address the other
arguments made by the Service in its motion.
  ORDER: The motion to reconsider is denied.

                          BEFORE THE BOARD
                             April 23, 1981
BY:   Milbollan, Chairman; Maniatis, Appleman, and Maguire, Board Members


  In our decision of August 28, 1980, we denied the respondent's
unopposed motion to reopen his deportation proceedings to enable him
to apply for a waiver under section 212(c) of the Immigration and
Nationality Act, 8 U.S.C. 1182(c), in conjunction with an adjustment of
status application under section 245 of the Act, 8 U.S.C. 1255. Subsequently, the Immigration and Naturalization Service filed a motion for
reconsideration of that decision. In our decision dated December 17,
1980, we concluded that the United States Supreme Court's decision in
Tapia-Acuna v. INS,

 (1980), made it inappropriate for us
to grant the Service's motion. Accordingly, the motion to reconsider
was denied.
  On February 20, 1981, in accordance with the request of the Acting
Commissioner of the Service, our decision of December 17, 1980 was
certified to the Attorney General fur review pursuant to 8 C.F.R.
3.1(h)(1)(iii). The request for certification was withdrawn by the Service in a memorandum dated March 25, 1981, and the record of proceed-
                                      501
Interim Decision #2819
ings was returned to us for appropriate action.
  In light of the above chronology of events and the decision of the
United States Court of Appeals for the Ninth Circuit in Tapia-Acuna v.
INS, 

 (9 Cir. 1981), we shall reopen these proceedings on
our own motion and remand the record to enable the respondent tc
fully present his application for relief under section 212(c) of the Act,
predicated upon the present facts, before an immigration judge.
  ORDERS The proceedings are reopened and the record is remanded to the immigration judge for further proceedings consistent
with the foregoing opinion.




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