Interim Decision #3186
MATTER OF PAPAZYAN
In Deportation Proceedings
A 41072056
-
Decided by Board June 3, 1992
(1) The Immigration Act of 1990, Pub. L No. 101-649, 104 Stat. 4978, amended and
redesignated the exclusion grounds found at section 212(a) of the Immigration and
Nationality Act,
8 U.S.C. § 1182(a) (1988); these amendments apply to individuals
who entered the United States on or after June 1, 1991.
(2) The Immigration Act of 1990 amended and redesignated the deportation grounds
found at section 241(a) of the Immigration and Nationality Act,
8 U.S.C. § 1251(a)
(1988); these amendments apply to aliens to whom notice of deportation proceedings
has been provided on or after March 1, 1991.
(3) In light of the effective dates for the revised and redesignated exclusion and
deportation grounds made by the Immigration Act of 1990, an alien in deportation
proceedings who was provided with notice on or after March 1, 1991, is properly
charged with deportability under the redesignated section 241(a)(1)(A) of the Act,
8
U.S.C. § 1251(a)(1)(A) (Supp. 11 1990), as an alien excludable at time of his last entry
in 1987 under the appropriate exclusion grounds in their form prior to redesignation
by the Immigration Act of 1990.
CHARGE:
Orden Act of 1952—Sec. 241(a)(1)(A) [
8 U.S.C. § 1251(a)(1)(A)1—Excludable at entry
under section 212(a)(14) [8 U.S.C. 1182(a)(14)]—No valid labor
certification
Sec. 241(a)(1)(A) [8 U.S.C. § 1251(a)(1)(A)]—Excludable at entry
under section 212(a)(19) [8 U.S.C. § 1182(a)(19)] — Fraud or
willful misrepresentation of a material fact
Sec. 241(a)(1)(A) [8 U.S.C. § 1251(a)(1)(A)]—Excludable at entry
under section 212(a)(20) (8 U.S.C. § 1182(a)(20)1—No valid
immigrant visa
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Abbe Allen Kingston, Esquire David M. Dixon
Kingston, Martinez & Hogan Appellate Counsel
1300 Santa Barbara Street
Santa Barbara, California 93101 William Kiang
General Attorney
BY: Milhollan, Chairman; Heilman, Board Member; DeBernardis, Temporary Board
Member
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Interim Decision #3186
In a decision dated January 7, 1992, an immigration judge
terminated the instant deportation proceedings on the ground that the
Order to Show Cause and Notice of Hearing (Form I-221) was
defective and, thus, that the proceedings had been improvidently
begun. The Immigration and Naturalization Service appealed from
that decision. The appeal will be sustained and the record will be
remanded to the immigration judge for further proceedings.
The respondent is a native and citizen of Turkey who entered the
United States on February 4, 1987, as a conditional permanent
resident of the United States based on his marriage to a lawful
permanent resident of the United. States. The Service charges that the
respondent's marriage was void on the ground that his spouse's
divorce from her prior husband was invalid and that her marriage to
the respondent was therefore a bigamous one. On April 15, 1991, the
Service issued an Order to Show Cause charging the respondent with
deportability under section 241(a)(1)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1251(a)(1XA) (Supp. II 1990), as an alien
excludable at time of entry under sections 212(a)(14), (19), and (20) of
the Act,
8 U.S.C. §§ 1182(a)(14), (19), and (20) (1982).
At a deportation hearing conducted on November 5, 1991, the
respondent objected to the form of the charges contained in the Order
to Show Cause for the reason that the Immigration Act of 1990, Pub.
L. No- 101-649,
104 Stat. 4978 ("1990 Act"), had redesignated the
former grounds of excludability and deportability and that the charges
in the Order to Show Cause reflected the older rather than the current
provisions under which he should have been charged. The immigration judge continued the proceedings to allow the Service to amend the
Order to Show Cause.
At the continued hearing date, the Service declined to amend the
Order to Show Cause, arguing that its form was proper given the
respondent's 1987 entry date. The respondent offered a copy of a
Service memorandum dated March 1, 1991, which indicates that, to
comply with the requirements of the 1990 Act, all Orders to Show
Cause issued on or after March 1, 1991, must employ the revised
deportation section designations created by that legislation. The
immigration judge terminated the proceedings in light of this document without prejudice to the Service's preparation of another Order
to Show Cause.
On appeal, the Service claims that the Order to Show Cause was
proper as originally issued. It notes that the ground of deportation
alleged therein, section 241(a)(1)(A) of the Act, is in the form as
redesignated by the 1990 Act. This ground of deportability alleges,
however, that the respondent was excludable at the time of his 1987
entry on several grounds. The Service has accordingly charged the
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Interim Decision #3186
respondent's excludability under the relevant provisions of section 212
of the Act in their form prior to the enactment of the 1990 Act. The
Service points out in this respect that the amendments to the section
212 exclusion grounds made in the 1990 Act were to be applied to
"individuals entering the United States on or after June 1, 1991."
Because the respondent entered in 1987, the Service argues, the
former, not the current, exclusion grounds are properly charged in the
Order to Show Cause. We agree.
The memorandum that the respondent offered at the deportation
hearing in support of his claim that the Order to Show Cause was
fatally defective states: "On all Orders to Show Cause (OSCs) served
on and after March 1, 1991, all grounds of deportability must be cited
in accordance with section 241 as revised ... by [the 1990 Act]." We
note that the Order to Show Cause that relates to the respondent
comports with this requirement: the respondent is charged with
deportability under section 241(a)(1)(A) of the Act, which was
formerly designated as section 241(a)(1).
In contrast to the deportation grounds in section 241 of the Act,
however, the statutory language in the 1990 Act relating to the
effective date of the newly designated exclusion grounds states: "[T]he
amendments made by this section ... shall apply to individuals
entering the United States on or after June 1, 1991." Section 601(e)(1)
of the 1990 Act, 104 Stat. at 5077. Assuming for purposes of analysis
that the factual allegations contained in the Order to Show Cause are
true, the respondent is currently deportable as alleged therein because
he was excludable at the time he entered the United States in 1987,
i.e., before the effective date of the current exclusion grounds. It
therefore follows that the Order to Show Cause properly alleges the
respondent's current deportability under the redesignated section
241(a)(1)(A) of the Act, which in turn relates to grounds of excludability under section 212 as constituted at the time of his last entry in 1987.
For the above reasons, the Service's appeal from the decision of the
immigration judge will be sustained and the record will be remanded
to the immigration judge.
ORDER: The order of the immigration judge terminating the
deportation proceedings is set aside.
FURTHER ORDER: The record is remanded to the immigration judge for further proceedings in accordance with the foregoing
decision.
570
