RAINFORD

Interim Decision #3191




                        MATTER OF RAINFORD

                          In Deportation Proceedings

                                    A-41651633

                   Decided by Board September 9, 1992

  A respondent who is convicted of criminal possession of a weapon is deportable under
section 241(a)(2)(C) of the Immigration and Nationality Act, 

(a)(2)(C)
(Stipp. II 1990); however, such a conviction does not preclude a finding of admissibility
in connection with an application for adjustment of status under section 245(a) of the
Act, 

(a) (1988), and it may not serve as a ground of deportability if the
respondent's status is adjusted to that of a lawful permanent resident. Matter of
Rafipour, 

 (BIA 1978), followed. Matter of V-, 

 (BIA
1942), distinguished.

CHARGE:
Order; Act of 1952 —Sm.:. 241(a)(2)(C) [

(02)(0] —Convicted of firearms violation

ON BEHALF OF RESPONDENT:                             ON BEHALF OF SERVICE:
  Rev. Robert Vitaglione                                Bernard Mendelow
  Accredited Representative                             General Attorney
  Comite Nuestra Senora de Loreto
  sabre Asuntos de Inmigracion
  856 Pacific Street
  Brooklyn, New York 11238-3142

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


   In a decision dated June 17, 1992, the immigration judge found the
respondent deportable as charged, pretermitted his application for
adjustment of status, and ordered him deported to Jamaica. The
respondent has appealed from that decision. The appeal will be
sustained and the record will be remanded. The request for oral
argument is denied_ 

(e) (1992).
   The respondent is a single, 23-year-old native and citizen of
Jamaica. On March 27, 1988, he was admitted to the United States as
a lawful petutauent resident. On April 30, 1991, he was convicted in
the Supreme Court of the State of New York, County of Kings, of
criminal possession of a weapon in the third degree. For this offense,

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he was sentenced to a term of imprisonment of 1 year. On the basis of
this 1991 conviction, the Immigration and Naturalization Service
issued an Order to Show Cause and Notice of Hearing (Form I-221),
charging the respondent with deportability as an alien convicted of a
firearms offense under section 241(a)(2)(C) of the Immigration and
Nationality Act, 

(a)(2)(C) (Supp. II 1990). The
respondent, through counsel, conceded deportability. We fmd that
deportability as charged was established by clear, unequivocal, and
convincing evidence. See Woodby v. INS, 

 (1966); 

(a) (1992).
   The record file contains the respondent's Application for Permanent Residence (Form 1-485) and an unadjudicated Petition for Alien
Relative (Form 1-130) filed on his behalf by his United States citizen
father. The Form 1-485 is supported by a copy of the respondent's
father's Certificate of Naturalization.
   The immigration judge moved to the relief phase of the deportation
hearing and determined that there was no relief available to the
respondent. He stated that based on Matter of V-, 

(BIA 1942), and subsequent cases, an alien who is not subject to a
statutory ground of exclusion, but who would immediately become
subject to deportation upon entry, must be found inadmissible. He
concluded that the respondent was therefore ineligible for adjustment
of status under section 245(a) of the Act, 

(a) (1988).
   On appeal, the respondent contends that the "futility doctrine" no
longer exists because Matter of V-, supra, was replaced by the
Immigration and Nationality Act of 1952, which removed an "implied" ground of excludability. In its brief the Service merely concurs
with the immigration judge's decision, without citing or discussing any
cases.
   We find merit to the respondent's appeal. The respondent sought to
apply for adjustment of status. The burden of proving eligibility for the
privilege of adjustment of status is upon the alien. See Lennon v. INS,

 (2d Cir. 1975), rev'g Matter of Lennon, 

(BIA 1974). Section 245(a) of the Act requires that an alien meet three
conditions: 1) he must make an application for adjustment of status; 2)
he must be eligible to receive a visa and be admissible for permanent
residence; and 3) an immigrant visa must be immediately available at
the time of application. Here, the respondent has made an adjustment
of status application. If the visa petition filed on his behalf is
approved, an immigrant visa would immediately be available to him,
since first-preference visa numbers are now current. See Department
of State Visa Bulletin, Vol. VII, No. 14 (Sept. 1992). Under 

(a)(2)(i) (1992), the adjustment application should be retained
for processing under these circumstances.
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Interim Decision #3191

   The remaining issue before us is whether the respondent meets the
second condition that he be admissible to the United States. We find
that the respondent can meet this second condition. The immigration
judge reasoned that the respondent, by virtue of his firearms conviction, cannot prove the requirement of admissibility in section 245(a)
of the Act. Specifically, the immigration judge stated that the
respondent is excludable notwithstanding the absence of a specific
exclusion ground in the Act. The immigration judge found support for
his decision in Matter of V-, supra, in which we held that an alien could
be excluded on the basis of conduct which would be a ground of
deportability, but not a ground of excludability. The immigration
judge noted that our reasoning for creating such an administrative
practice was that it would be futile to admit someone only to have him
immediately become subject to deportation from the United States. Id.
at 295.
   The immigration judge also discussed in his decision Matter of R-
G-, 

 (BIA 1958), and Matter of Sanchez, 

 (BIA 1977). In Matter of R-G- the Board held that notwithstanding
the lack of a specific statutory ground of exclusion, an alien who upon
entry would immediately become subject to deportation should be
found excludable_ In both cases the Board held that an alien deportable
under former section 241(a)(5) of the Act, 

(a)(5)
(1988), would not again become deportable when he had been lawfully
admitted for permanent residence.' The immigration judge found
these cases distinguishable because the present respondent would still
be deportable based on his firearms conviction.
   In essence, the immigration judge's reasoning is that because the
language in section 241(a)(2)(C), "at any time after entry," does not
couple deportability with any particular entry into the United States, it
makes an alien such as the respondent immediately deportable for the
earlier firearms conviction. There are no waivers in the Act for this
deportation ground.
   We reject this position and determine that the rule in Matter of V-,
supra, is inapposite in the adjustment of status context. It has been the
consistent practice of this Board to interpret the requirement of
admissibility in section 245(a) with reference only to the exclusion
grounds in the Act. See, e.g., Matter of Zangivill, 

(BIA 1981), overruled on other grounds, Matter of Ozkok, 

 (BIA 1988); Matter of Parodi, 

 (BIA 1980);

   The grounds of deportability under section 241(a) of the Act have keen revisers and
redesignated by section 602(a) of the Immigration Act of 1990, 

Stat. 4978, 5077-81 (enacted Nov. 29, 1990), with former section 241(a)(5) now being
found at section 241(a)(3)(B).

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Matter of Wolf, 

 (BIA 1977); Matter of Smith, 

 (BIA 1965). Were we now to apply the rule in
Matter of V-, we would be imposing upon an applicant an additional
burden, not appearing in the statute, that he prove not only that he is
admissible, but also that he would not become immediately deportable
once admitted for lawful permanent residence.
   Further, the rule in Matter of V- requires an "entry." An adjustment
of status, however, does not constitute an entry. As we have repeatedly
held, an adjustment of status is merely a procedural mechanism by
which an alien is assimilated to the position of one seeking to enter the
United States. See Master of Connelly, 19 1&N Dec. 156, 159 (BIA
 1984); Matter of Smith, supra; see also section 101(a)(13) of the Act, 8
U.S.C. § I 101(a)(13) (1988); Matter of Patel, 

 (BIA
1991) (noting that we have fashioned a more precise definition of what
an "entry" is through precedent decisions).
   We believe that Congress' intent is clearly expressed by the plain
language used in section 245(a) of the Act? See Ardestani v. INS, 

 (1991); INS v. Cardoza-Fonseca, 

(1987); INS v. Phinpathya, 

 (1984) (stating that M all
cases involving statutory construction, the starting point must be the
language employed by Congress, and the legislative purpose            is
expressed by the ordinary meaning of the words used).
   Our decision in Matter of Rafipour, 

 (BIA 1978),
an adjustment of status case, is noteworthy because in that decision,
we also declined to apply the rule in Matter of V-, holding instead that
the alien would not become deportable again by reason of a prior act,
once admitted for lawful permanent residence.
   The alien in Mailer ofRafipour was found deportable under section
241(a)(2) of the Act for remaining in the United States longer than
permitted. In lieu of deportation, he was granted the privilege of
voluntary departure. No appeal followed. However, the alien later filed
a motion to reopen in order to apply for adjustment of status. The
immigration judge granted the motion and the Service appealed. It
claimed that the alien was ineligible for adjustment of status because,
following his admission for lawful permanent residence, he would
become immediately deportable under section 241(a)(5) on the basis of
a 1975 conviction for giving false statements on an application for
alien registration. See Matter of V-, supra. We disagreed. Noting that

 2 1n Matter of Hernandez-Casillas,   20 1&N Dec. 262, 289, (BIA 1990; A.G. 1991),
uff"el, 

 (5th Or. 1993), the Attorney General stated: "Absent some
supervening affirmative justification based upon a requirement of the Constitution or
other applicable law, neither the Board nor I may depart—or, in this instance, extend an
earlier departure—from the terms of the statute we are bound to enforce"
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Interim Decision #3191

 the situation of this alien closely resembled that in Matter of R-G-,
 supra, we followed the view that the alien would no longer be
 deportable pursuant to section 241(a)(5) of the Act for his earlier
 conviction, once he was admitted as a lawful permanent resident.
    We find no meaningful basis to distinguish the circumstances of the
 instant case from those addressed and resolved in Matter of Rafipour.
 Although Matter of Raftpour and the cases which preceded it involved
 section 241(a)(5) of the Act, we have never stated that the reasoning
 used there was limited to cases addressing section 241(a)(5) solely. The
 issue of whether an alien would remain deportable on the basis of prior
 conduct following his admission for lawful permanent residence
 apparently arose consistently in the section 241(a)(5) context, but
 sheerly by happenstance. See Matter of Sanchez, supra, at 365 n.2. In
 the instant case, as in Matter of Rafipour,, the respondent faces a charge
of deportability for which there is no corresponding ground of
exclusion in the Act. There is no indication in the Act or its legislative
history that Congress ever intended to bar this class of aliens, like
 those in the section 241(a)(5) context, from becoming lawful permanent residents. We therefore find no reason for not extending the
reasoning of Matter of Rafipour to this ground of deportability.
    Accordingly, we hold that the conviction which renders the
respondent deportable under section 241(a)(2)(C) of the Act will not
preclude a showing of admissibility for purposes of section 245(a) and
that if granted adjustment of status to lawful permanent resident, the
respondent will no longer be deportable on the basis of this prior
conviction. .
    Having found that the respondent is admissible to the United States
and therefore eligible to apply for adjustment of status, we will remand
the case to the immigration judge to allow the respondent to present
his application for that relief. We note that to be granted adjustment of
status, the visa petition on his behalf will have to be approved by the
Service. The respondent will also have to show the immigration judge
that he merits adjustment of status in the exercise of discretion.
Finally, visa numbers for first-preference classification will still need
to be current.
    ORDER:          The appeal is sustained and the record is remanded
to the immigration judge for further proceedings in accordance with
the foregoing opinion and for entry of a new decision.