ALARCON

                                                              Interim Decision #3184




                          MATTER OF ALARCON

                           In Deportation Proceedings

                                     A-27588330

                       Decided by Board July 13, 1992

(1) A respondent who has been convicted of two crimes involving moral turpitude not
  arising from a single scheme of criminal misconduct is inadmissible into the United
  States under section 212(a) of the Immigration and Nationality Act, 8 U.S.C.
     1182(a) (Supp. II 1990), and is thus ineligible for adjustment of status under section
  245 of the Act, 

 (Supp. II 1990), unless he is eligible for and should be
  granted a waiver of inadmissibility under section 212(h) of the Act.
(2) At the time the respondent filed his application for a section 212(h) waiver, section
  601(d)(4) of the Immigration Act of 1990, 

 Stat. 4978, 5076-
  77 (effective June I, 1991), required the passage of 15 years from the date of the
  deportable offense before an alien could be eligible for a waiver, therefore, the
  respondent's offenses, committed within the 15 years prior to his application,
  statutorily barred him from qualifying for a section 212(h) waiver.
(3) The amendments made to section 212(h) of the Act during the pendency of the
   respondent's appeal to the Board of Immigration Appeals by section 307(1) of the
   Miscellaneous and Technical Immigration and Naturalization Amendments of 1991,
   

 Stat. 1733 (enacted Dec. 12,,1991) ("1991 Amendments"),
   are applicable to his application for a waiver of inadmissibility under section 212(h).
(4) The version of section 212(h) of the Act under the 1991 Amendments created two
   categories of immigrants eligible for relief; therefore, although the respondent is
   barred from establishing eligibility as a result of his convictions within the past 15
   years, he may be eligible for a waiver if he establishes that he has the requisite
  relationship to a United States citizen or lawful permanent resident and that his
  exclusion would result in extreme hardship to that family member.

CHARGE:
Order: Act of 1952—Sec. 241(a)(1)(B) [

(a)(1)(13)1—In the United States
                      in violation of law
                      Sec. 241(a)(2)(A)(ii) [

(a)(2)(A)M1—Crimes involving moral turpitude
ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
  Pro se                                                Elena Kusky
                                                        General Attorney

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

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   In an oral decision dated July 5, 1991, an immigration judge found
the respondent deportable as charged and statutorily ineligible to apply
for adjustment of status under section 245 of the Immigration and
Nationality Act, 

 (Supp. II 1990), and for a corresponding waiver of inadmissibility under section 212(h) of the Act, 

(h) (Supp. II 1990), and ordered him deported from the
United States to Bolivia. The respondent has appealed from that
decision. The appeal will be sustained and the record will be remanded
to the immigration judge.
   The respondent, a native and citizen of Bolivia, entered the United
States as a nonimmigrant visitor on an unknown date in January 1981.
He was authorized to remain in the United States for a period not to
exceed 1 year, but he never departed. On April 10, 1991, the
Immigration and Naturalization Service issued an Order to Show
Cause and Notice of Hearing (Form I-221) charging the respondent
with deportability under section 241(a)(1)(B) of the Act, 

(a)(1)(B) (Supp. II 1990), for remaining longer than permitted,
and under section 241(a)(2)(A)(n) of the Act, as an alien convicted of
two or more crimes involving moral turpitude not arising from a single
scheme of criminal misconduct.
   The deportation proceedings against the respondent commenced on
April 16, 1991, and concluded on July 5, 1991. During the hearing on
April 16, 1991, the respondent was present and represented by
counsel. The proceedings were continued on several occasions.' On
June 13, 1991, the respondent appeared with a new attorney. The
respondent conceded deportability as charged under section
241(a)(1)(B) of the Act, as an alien who remained longer than
permitted by his nonimmigrant visa. 2 He denied the charge of
deportability under section 241(a)(2)(A)(ii) of the Act, as an alien
convicted of two crimes involving moral turpitude not arising from a
single scheme of criminal misconduct. However, at the continued
hearing on July 5, 1991, the Service entered into evidence, without
objection by the respondent, certified conviction records indicating
that on July 14, 1980, the respondent was convicted in the Municipal
Court of Los Angeles, State of California, of the crime of petty theft in
   'The proceedings were continued to May 7, 8, and 24, 1991, because the parties were
not prepared to go forward. On May 24, 1991, the respondent appeared without counsel,
advising the immigration judge that he was displeased with his attorney's services and
wished to hire new counsel.
   2 At the hearing on May 8, 1991, the respondent testified that he entered the United
States in January 1980. At the continued hearing on June 13, 1991, the respondent
conceded deportability as charged for having entered the country in January 1981. We
find that the discrepancy in the year of entry does not affect the respondent's concession
of deportability.
                                           SSR
                                                 Interim Decision #3184

violation of section 484 of the California Penal Code. The record also
shows that the respondent was convicted on June 22, 1987, in the
United States District Court for the Central District of California, of
mail fraud in violation of 

 (1982), and of receipt of
kickbacks on government contracts in violation of 

and 54 (1982). This Board finds that the respondent's deportability
under sections 241(a)(1)(B) and (2)(A)(ii) of the Act has been
established by clear, unequivocal, and convincing evidence, as required by Woodby v. INS, 

 (1966), and 

(a) (1992).
  At the hearing on July 5, 1991, the respondent claimed that he is
married to a United States citizen and has United States citizen
children. He sought to apply for adjustment of status under section
245 of the Act, and for a corresponding waiver of inadmissibility
under section 212(h) of the Act. However, the immigration judge
found that based on the recent amendment to section 212(h) of the Act
by the Immigration Act of 1990, 

 Stat. 4978
(enacted Nov. 29, 1990) ("1990 Act"), the respondent was statutorily
ineligible to apply for such relief. The only issue on appeal is whether
the immigration judge properly found the respondent statutorily
ineligible to apply for adjustment of status and the section 212(h)
waiver.
   Section 245 of the Act provides that the Attorney General may in
his discretion adjust the status of an alien inspected and admitted or
paroled into the United States to that of an alien lawfully admitted for
permanent residence if the alien applies for adjustment, is eligible to
receive an immigrant visa and is admissible to the United States for
permanent residence, and has an immigrant visa immediately available to him. An alien subject to deportation proceedings may also
apply for adjustment of status before the immigration judge and, if
inadmissible under section 212(a) of the Act, may also apply for a
waiver of the ground of inadmissibility. See 

(a)
(1992).
  An alien who is inadmissible under section 212(a) of the Act on the
basis of his conviction for a crime or crimes involving moral turpitude
may seek a waiver of inadmissibility under section 212(h) of the Act.
In the case before us, the respondent was convicted in a California
court on July 14, 1980, of petty theft in violation of section 484 of the
California Penal Code, as well as mail fraud and receipt of kickbacks
on government contracts in violation of 

 and 

 and 54, respectively. The respondent does not challenge
on appeal the immigration judge's finding that the crimes of which he
was convicted involve moral turpitude. See Jordan v. De George, 

 (1951); Matter of Squires, 

 (BIA 1980);

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Interim Decision #3184

Matter of Flores, 

 (BIA 1980); Matter of Acosta, 

 (BIA 1973); Matter of L-, 

 (BIA 1954).
As an alien convicted of two crimes involving moral turpitude, the
respondent is inadmissible into the United States under section 212(a)
of the Act, and he is therefore ineligible for adjustment of status unless
he is eligible for and should be granted a waiver of inadmissibility
under section 212(h).
    In light of recent amendments to section 212(h) of the Act, the
timing of the deportation proceedings in the instant case is significant.
At the July 5, 1991, hearing, the respondent sought to apply for
adjustment of status and a waiver of inadmissibility under section
212(h) of the Act. He conceded that he was ineligible for a waiver
pursuant to the amendment to section 212(h) by the Immigration Act
of 1990, which became effective on June 1, 1991. 3 The amended
provision of section 212(h) required the passage of 15 years from the
date of the deportable offense before an alien could be eligible for a
waiver. The respondent admitted that his offenses, committed on June
7, 1980, and on or about June 22, 1987, were within 15 years from the
date of his waiver application. Nonetheless, he contended that his
waiver application should be adjudicated under the law in effect prior
to June 1, 1991, the effective date of the 1990 amendment to section

  3 Section 2I2(h) of the Act, as amended by section 601(d)(4) of the Immigration Act of
1990, 104 Stat. at 5076-77 (effective June 1, 1991), provides as follows:
    The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of
    such subsection insofar as it relates to a single offense of simple possession of 30
    grams or less of marijuana in the case of an immigrant who is the spouse, parent,
    son, or daughter of a citizen of the United States or alien lawfully admitted for
    permanent residence if-
       (1) it is established to the satisfaction of the Attorney General that-
          (A) the alien is excludable only under subparagraph (D)(i) or (D)(ii) of such
      subsection or the activities for which the alien is excludable occurred more than
      15 years before the date of the alien's application for a visa, entry, or adjustment
      of status, 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
          (C) the alien has been rehabilitated; and
      (2) the Attorney General, in his discretion, and pursuant to such terms, conditions
    and procedures as he may by regulations prescribe, has consented to the alien's
    applying or reapplying for a visa, for admission to the United States, or adjustment
    of status.
  No waiver shall be provided under this subsection in the case of an alien who has been
  convicted of (or who has admitted committing acts that constitute) murder or
  criminal acts involving torture. (Emphasis added.)

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                                                             Interim Decision #3184

212(h). The respondent argued: (1) that the application should be
decided based on the law in effect at the time of the issuance of the
Order to Show Cause, i.e., on April 10, 1991; (2) that his prior
attorney's incompetence in failing to file the application prior to June
1, 1991, should not prejudice him in his request for relief under the
preexisting law; and (3) that the recent amendment to section 212(h) of
the Act is likely to be amended further by Congress.
   The immigration judge found that the respondent was bound by the
actions of his prior counsel, and that he must show his eligibility for
the relief sought at the time of the filing of his applications. The
immigration judge further found that the respondent intended to file
his waiver and adjustment of status applications on July 5, 1991, and
that he must show statutory eligibility based on the law in effect at that
time. The immigration judge concluded that under the recent amendment to section 212(h) by the 1990 Act, the respondent's two
convictions within 15 years of his application rendered him statutorily
ineligible for such relief. See section 212(h)(1)(A) of the Act, 8
§ 1182(h)(1)(A) (Supp. II 1990).
   As the immigration judge noted, section 212(h) of the Act was
significantly amended by the Immigration Act of 1990. At the time the
immigration judge rendered his decision on July 5, 1991, he correctly
found that the respondent was staluturily ineligible for a waive' under
section 212(h). However, during the pendency of the appeal, and as
anticipated by the respondent during the deportation hearing,
Congress subsequently amended section 212(h) by the Miscellaneous
and Technical Immigration and Naturalization Amendments of 1991,

 Stat. 1733 (enacted Dec. 12, 1991) ("1991
Amendments"). As amended by section 601(d)(4) of the 1990 Act, 104
Stat. at 5076-77, and section 307(f) of the 1991 Amendments, 105
Stat. at 1755, section 212(h) now provides:
  The Attorney General may, in his discretion, waive the application of subparagraphs
   (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such
  subsection insofar as it relates to a single offense of simple possession of 30 grams or
  less of marijuana if-
     (1)(A) in the case of any immigrant it is established to the satisfaction of the
  Attorney General that-
          (i) the alien is excludable only under subparagraph (D)(i) or (D)(ii) of such
      subsection or the activities for which the alien is excludable occurred more than
      15 years before the date of the alien's application for a visa, entry, or adjustment
      of status,
         (ii) 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
         (iii) the alien has been rehabilitated; or

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Interim Decision #3184

        (B) in the case of an immigrant who is the spouse, parent, son, or daughter of a
   citizen of the United States or an alien lawfully admitted for pennanent residence if
   it is established to the satisfaction of the Attorney General that the alien's exclusion
   would result in extreme hardship to the United States citizen or lawfully resident
   spouse, parent, son, or daughter of such alien; and
            (2) the Attorney General, in his discretion, and pursuant to such terms,
        conditions and procedures as he may by regulations prescribe, has consented to
        the alien's applying or reapplying fora visa, for admission to the United States, or
      adjustment of status.
   No waiver shall be provided under this subsection in the case of an alien who has
   been convicted of (or who has admitted committing acts that constitute) murder or
   criminal acts involving torture. (Emphasis added.)
   As he is seeking to adjust his status to that of a lawful permanent
resident, the respondent in this case is assimilated to the position of an
applicant for entry into the United States. Pei-Chi Tien v. INS, 

 (5th Cir. 1981); Yui Sing Tse v. INS, 

 (9th Cir.
1979); Matter of Hernandez-Puente, 

 (BIA 1991). For
this reason, at the time of the Board's decision the respondent remains
an individual seeking to enter the United States, and, as such, falls
within the provisions of the most recent version of section 212(h)
under the 1991 Amendments.
   An application for admission to the United States is a continuing
application, and admissibility is determined on the basis of the facts
and the law at the time the application is finally considered. Matter of
Ching and Chen, 

 (BIA 1984); Matter of Kazemi, 

 (BIA 1984); Matter of Ketema, 

 (BIA
1982), rev'd on other grounds, Matter of Kazemi, supra; Matter ofK                     -   ,

 (S.I.O., BIA 1959; A.G. 1961), affd sub nom. Klapholz
v. Esperdy, 

 (S.D.N.Y. 1961), affd per curiam, 

 (2d Cir.), cert. denied, 

 (1962). When a law is
changed before a decision is handed down by an administrative
agency, the agency must apply the new law. See Ziffrin v. United States,

 (1943). If a statutory amendment renders an individual
ineligible for adjustment of status prior to a final administrative
decision on the previously filed application for relief, the application
must be denied. Talanoa v. INS, 

 (9th Cir. 1968); Patsis v.
INS, 

 (8th Cir. 1964), cert. denied, 

 (1965);
Fassilis v. Esperdy, 

 (2d Cir. 1962); Matter of George and
Lopez-Alvarez, 

 (BIA 1965). In deportation proceedings, a final administrative decision does not exist until the Board
renders its decision in the case on appeal or certification, or, where no
appeal to the Board is taken, when the right to appeal is waived, or the
time allotted for appeal has expired. See Matter of Lok, 

 (BIA 1981), affd on other grounds, 

 (2d Cir. 1982).
   The version of section 212(h) under the 1991 Amendments

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                                                           Interim Decision #3184

essentially creates two categories of immigrants eligible for relief. The
first category includes any immigrant who meets eligibility criteria
which largely concern the type of exclusion ground involved or when
the excludable activity occurred, as well as issues of the alien's
rehabilitation and the national welfare, safety, or security of the
United States. Section 212(h)(1)(A) of the Act, 

(h)(I)(A) (West Supp. 1992). The second category includes
immigrants who demonstrate the requisite relationship to a United
States citizen or lawful permanent resident and establish that their
exclusion would result in extreme hardship to that citizen or lawful
permanent resident. Section 212(h)(1)(B) of the Act. In the instant
case, the respondent is allegedly married to a United States citizen and
has United States citizen children. As such, he may demonstrate
eligibility under section 212(h)(1)(B) by establishing extreme hardship
to his United States citizen wife or children if he were excluded. 4
   As a result of the amendment to section 212(h) of the Act by the
1991 Amendments, the Board fmds that the respondent appears to be
eligible to apply for adjustment of status and a corresponding waiver
under section 212(h) of the Act. Accordingly, we will sustain the
appeal and remand the case to the immigration judge to accept the
respondent's applications for adjustment of status and a section 212(h)
waiver and to enter a new decision.
   ORDER:          The appeal is sustained.
   FURTHER ORDER:                The record is remanded to the immigration judge to accept the applications for adjustment of status and a
waiver under section 212(h) of the Act and to enter a new decision in
accordance with the foregoing opinion.




  4 The two offenses for which the respondent is subject to exclusion occurred less than
15 years ago. Therefore, he is ineligible for a waiver of inadmissibility under section
212(hX1)(A) of the Act.

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