GORDON

Interim Decision #3109




                          MATTER OF GORDON
                          In Deportation Proceedings
                                     A-35355155
                       Decided by Board May 25, 1989

(1) An alien in deportation proceedings who was found deportable but was granted a
  waiver of inadmissibility under section 212(c) of the Immigration and Nationality
  Act, 

(c) (1982), returns to the same lawful permanent resident status
  that he previously held.
(2)Notwithstanding the respondent's conviction for a crime committed after a grant of a
  waiver of inadmissibility, his grant may not be subsequently withdrawn for that
  reason in a reopened deportation proceeding; the Immigration and Naturalization
  Service must initiate new deportation proceedings in order to have the immigration
  judge consider evidence of subsequent criminal activity by the respondent.
(3) While section 212(c) of the Act does not expressly or implicitly provide for
  revocation or rescission of a grant of a waiver of inadmissibility or a conditional grant
  of a waiver, an immigration judge may nevertheless reopen proceedings and
  reconsider his own decision to grant a waiver if he believes that the waiver was
  erroneously granted in the first instance.
CHARGE:
Order: Act of 1952—Sec. 241(a)(4) [

(a)(4)]—Crimes involving moral
                     turpitude
Lodged: Act of 1952—Sec. 241(a)(1) [

(a)(1)1—Excludable at entry under
                       section 212(a)(19) j8 U.S.C. § 1182(a)(19)] —Fraud or willful
                       misrepresentation of a material fact
ON BEHALF OF RESPONDENT:                           ON BEHALF OF SERVICE:
  David Iverson, Esquire                              Hans Burgos-Gandia
  P.O. Box 8329                                       General Attorney
  St. Thomas, U.S. Virgin Islands 00801
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


   This is an appeal from the decision of an immigration judge dated
December 5, 1988, in which he found the respondent deportable under
section 241(a)(4) of the Immigration and Nationality Act, 

(a)(4) (1982), denied his application for a waiver of inadmissibility under section 212(c) .of the Act, 

(c) (1982), and
ordered him deported from the United States to Tortola, British
Virgin Islands. The respondent's appeal will be sustained.
   The respondent is a 32-year-old native of Tortola, British Virgin
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Islands, and a citizen of the United Kingdom. He was admitted to the
United States on June 28, 1977, as a lawful permanent resident.
Thereafter, on June 20, 1986, the Immigration and Naturalization
Service instituted deportation proceedings against him by the issuance
of an Order to Show Cause, Notice of Hearing, and Warrant for Arrest
of Alien (Form I-221S). The Order to Show Cause alleged, inter alia,
that the respondent had been convicted on December 28, 1978, in the
Magistrate's Court of Tortola, Colony of the British Virgin Islands, of
robbery. He was sentenced to 3 months' imprisonment and ordered to
pay restitution for the value of the stolen property. The Order to Show
Cause further alleged that the respondent was also convicted on April
3, 1979, in the same court, of receiving stolen property. This time he
was sentenced to 4 months' imprisonment with hard labor. Based on
these convictions, the Service charged the respondent with deportability under section 241(a)(4) of the Act, as an alien who at any time after
entry was convicted of two crimes involving moral turpitude, not
arising out of a single scheme of criminal misconduct.
   At a deportation hearing conducted on June 8, 1987, the Service
presented certified true copies of the judgment orders rendered against
the respondent in the Magistrate's Court of Tortola. We find, as did
the immigration judge, that deportability under section 241(a)(4) of
the Act was established by clear, unequivocal, and convincing
evidence. See Woodby v. INS, 

 (1966); 

(a) (1988). 1 The respondent applied for a waiver of inadmissibility under section 212(c) of the Act. After a hearing on the merits of
the application, the immigration judge granted the respondent a
section 212(c) waiver, finding that he had demonstrated strong family
ties in the United States, and that his equities outweighed the negative
factors in the record. The immigration judge further concluded that
the respondent's criminal activity appeared to have ceased, thus
indicating rehabilitation on his part. Matter of Marin, 

 On December 8, 1986, the Service lodged an additional charge of deportability
against the respondent under section 241(a)(1) of the Act, alleging that he was excludable
at the time of entry under section 212(aX19), as an alien who procured a visa or entry
into the United States by fraud or willful misrepresentation of a material fact. The
Service alleged that the respondent falsely stated in his visa application that he had
never been convicted of a crime involving moral turpitude, when in fact he had been
convicted of burglary in 1976. The immigration judge heard testimony with regard to
this issue and .concluded that the respondent did not make a deliberate attempt to hide
his criminal record. Indeed, a police report reflecting the respondent's burglary
conviction was attached to his original application for a visa and was available for
inspection to the American consular officer who interviewed the respondent. The
immigration judge thus concluded that the respondent did not procure his visa by fraud,
and therefore the charge of deportability under section 241(a)(1) of the Act had not been
sustained. The Service did not appeal this determination.

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581 (BIA 1978). The Service did not appeal this decision and it
became final on June 18, 1987. 

, 242.21 (1987).
   A year later, on August 15, 1988, the Service filed a motion to
reopen the respondent's deportation proceedings. As good cause for
the motion to reopen, the Service submitted evidence that the
respondent had been convicted on March 13, 1987, in the Territorial
Court of St. Thomas, the Virgin Islands, of assault. He was sentenced
to 30 days' imprisonment, fined $50, and placed on probation for 1
year.2 The Service further submitted evidence that the respondent had
been convicted on February 3, 1988, in the District Court of the Virgin
Islands, of first degree assault. He was sentenced to 5 years' imprisonment.
   According to the Service, the respondent's 1988 assault conviction
constitutes clear evidence of his lack of rehabilitation. Therefore, the
Service argued, the grant of the section 212(c) waiver, which was based
in part on a finding of rehabilitation, should be revoked, and the
respondent should be ordered deported from the United States. The
immigration judge granted the Service's motion to reopen on August
31, 1988, and a new deportation hearing was conducted on December
5, 1988. At the deportation hearing, the immigration judge concluded,
based on the new convictions, that the respondent was not rehabilitated after all, and therefore a waiver should not have been granted. The
immigration judge denied the original application for waiver and
ordered the respondent deported from the United States to Tortola,
British Virgin Islands. This appeal followed.
   The issue in this case is whether a grant of a waiver of inadmissibility under section 212(c) of the Act may be subsequently withdrawn,
pursuant to a motion to reopen deportation proceedings, based on
evidence of renewed criminal activity.
   The Service contends on appeal that an immigration judge may,
upon motion by the trial attorney, reopen or reconsider any case in
which he has made a decision, unless jurisdiction in the case has
vested in the Board. 

 (1988). A motion to reopen
may be granted by the immigration judge if he is satisfied that the
evidence sought to be offered is material and was not available and
could not have been discovered or presented at the hearing. 

 (1988). The Service points out that 8 months after being
granted a waiver, the respondent was again convicted of assault. This
new conviction is material to the issue of rehabilitation and was
unavailable at the time of the hearing. Had this evidence been before
the immigration judge previously, he would not have granted the
  2 This assault conviction occurred 3 months prior to the respondent's first deportation
hearing. It was apparently not part of the record at that time and not considered by the
immigration judge in his decision to grant section 212(c) relief.

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respondent a waiver of inadmissibility in the exercise of discretion.
The Service therefore argues that reopening was justified. The Service
further argues that once deportation hearings are reopened, an
immigration judge may withdraw a grant of section 212(c) relief based
on a subsequent conviction. We do not agree.
   Section 212(c) of the Act provides as follows:
      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 paragraphs (1)
   through (25) and paragraphs (30) and (31) of subsection (a).
   We note initially that the language of section 212(c) of the Act does
not contain a provision for the revocation or rescission of a prior grant
of a waiver of inadmissibility. Compare section 212(c) with section 205
of the Act, 

 (1982), and section 246 of the Act, 

 (1982). Neither does the language of section 212(c)
contain any express provision for a conditional grant of a waiver.
Compare section 212(c) with sections 212(g) and (h) of the Act and
Matter of Mascorro-Perales, 

. 231 (BIA 1967) (the
section 212(h) waiver was intended to be conditioned upon the future
good behavior of an alien and could be revoked if any subsequent
crime was committed). Indeed, this Board has specifically rejected the
practice of conditional grants of section 212(o) waivers. Instead, we
held that such relief should be granted unconditionally as to the
grounds of inadmissibility specified where an alien establishes that
such relief is warranted. Matter of Pryzgocki, 

 (BIA
1980).3
   A grant of a waiver of inadmissibility under section 212(c) of the
Act fully returns an alien to the same lawful permanent resident status
previously held. Matter of Przygocki, supra. Once a waiver of
inadmissibility is granted with respect to certain crimes, deportation
proceedings must be initiated anew to consider subsequent criminal
offenses. The immigration judge in this case conducted a full hearing
on the merits of the respondent's application for section 212(c) relief
and concluded that, despite his clear deportability, the respondent
merited such relief in the exercise of discretion. This grant of section
212(c) relief restored the respondent to his previous status of that of
alien lawfully admitted for permanent residence. The waiver did not
  3 The predecessor provision of section 212(c) of the Act (the seventh proviso to section
3 of the 1917 Immigration Act) contained specific language authorizing conditional
grants of relief. These conditions were ordinarily in the form of warnings to the alien to
remain a person of good moral character and to not commit any more offenses in the
future. Matter of G-Y-G-, 

 (BIA 1950; Acting A.G. 1951); Matter of S-, 

 (BIA, Acting A.G. 1951). The seventh proviso was superseded by section
212(c) of the Act, which contains no language authorizing conditional grants.

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carry with it the condition that if the respondent were convicted of
another crime in the future, he would be subject to deportation on the
same grounds already waived. Reopening may not serve as the vehicle
by which subsequent crimes are considered after a section 212(c)
waiver has been granted. To allow this would be to leave the alien in a
tenuous state indefinitely, without the benefit of the procedural
safeguards afforded in a new deportation hearing.
  We note that although the respondent cannot again be charged with
deportability based on the same criminal convictions already waived,
his prior crimes do not completely disappear from the record for
immigration purposes. The respondent, for example, has now become
deportable because of an additional crime involving moral turpitude,
which can serve as the basis for a new Order to Show Cause in
conjunction with a prior crime involving moral turpitude. See Matter
of Mascorro-Perales, supra. The prior convictions may also be considered by the immigration judge in a new deportation hearing with
respect to issues of rehabilitation and discretion.
   We do not by this decision interfere with the immigration judge's
inherent power to reopen and reconsider his own decisions where a
section 212(c) waiver was erroneously granted in the first instance, for
example, because the respondent was not statutorily eligible for such
relief, or because the relief was granted without the benefit of certain
material information which was not previously available. Cf. Matter of
Tayabji, 

 (BIA 1985). In this case, for example, the
respondent was convicted of assault in March 1987, 3 months prior to
his first deportation hearing. Yet at the hearing, the respondent denied
having been charged with or convicted of any crimes in the Virgin
Islands, other than a burglary conviction in 1978. Had reopening been
predicated upon material misrepresentations made by the respondent
in conjunction with the procurement of discretionary relief, reopening
might have been justified.
   We conclude that a grant of section 212(c) relief serves to preserve
the respondent's lawful permanent resident status in the United States
notwithstanding the specified offenses found by the immigration judge
to render the respondent deportable. Any subsequent criminal or
immigration violations must be addressed within the context of new
deportation proceedings pursuant to a new Order to Show Cause. The
grant of a waiver under section 212(c) of the Act may not be
conditioned upon the future good behavior of an alien. Reopening to
consider subsequent crimes was therefore not justified in this case.
Accordingly, the respondent's appeal is sustained.
   ORDER:         The appeal is sustained.




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