CHOW

                                                             Interim Decision #3199




                            MATTER OF CHOW
                          In Deportation Proceedings

                                     A-18998312

                      Decided by Board April 13, 1993

(1) Section 241(a)(2)(C) of the Immigration and Nationality Act, 

(a)(2)(C) (Supp. II 1990), relating to convictions for certain firearms offenses,
  represents the enactment of a new statutory provision that completely supersedes all
  former versions of that deportation ground and is not limited regarding its
  applicability to convictions which predated its enactment, there being no restrictions
  regarding the dates in which a conviction must occur in order to be included within
  the scope of the new statute.
(2) An alien deportable under section 241(a)(2)(C) of the Act on the basis of his
  conviction for a firearms offense is ineligible for relief from deportation under section
  212(c) of the Act, 

(c) (Supp. III 1991), because there is no exclusion
  ground corresponding to the deportation ground for conviction of a firearms offense.
  Matter of Montenegro, 

 (BIA 1992); Matter of Hernandez-Casillas, 

 (BIA 1990; A.G. 1991), affd, 

 (5th Cir. 1993); Matter of
  Granados, 

 (BIA 1979), ard, 

 (9th Cir. 1980), followed.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2)(A)(iii) [8 U.S.0 § 1251(a)(2XA)(iiiM—Convicted of
                     aggravated felony
                     Sec. 241(a)(2)(B)(i) [

(a)(2)(B)(i)]—Convicted of
                       controlled substance violation
                     Sec. 241(a)(2)(C) [

(a)(2)(C)]—Convicted of firearms violation
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
  Robert D. Ahlgren, Esquire                            Harris L. Leatherwood
  Ahlgren and Blumenfeld, P.C.                           General Attorney
  105 West Madison Street, Suite 800
 Chicago, Illinois 60602

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


   In a decision dated October 16, 1992, an immigration judge found
the respondent deportable as charged under section 241(a)(2)(B)(i) of
the Immigration and Nationality Act, 8 § 1251(a)(2)(B)(i)
(Supp_ II 1990), as an alien convicted of a controlled substance

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 violation, and under section 241(a)(2)(C) of the Act, as an alien
 convicted of a firearms violation. He also denied the respondent's
 application for relief from deportation by way of a waiver of
 inadmissibility under section 212(c) of the Act, 8 U.S.0 § 1182(c)
 (Supp. III 1991), and ordered him deported from the United States to
the United Kingdom. The respondent has appealed from that decision.
The appeal will be dismissed.
    The respondent is a native and citizen of Hong Kong who was
admitted to the United States as a lawful permanent resident on June
 16, 1971. The respondent's conviction records and admissions at the
deportation hearing reflect that he was convicted on November 10,
 1977, in the Superior Court of New Jersey, Camden County, of
unlawful possession of an automatic pistol. For this crime he was
sentenced to a term of imprisonment of not less than 2 years and not
more than 3 years. This sentence was to be concurrent with, three
consecutive sentences of 2 to 3 years, 5 to 7 years, and 3 to 5 years, for
his contemporaneous conviction on multiple counts involving entering
the premises of a restaurant with intent to rob, robbery while armed,
attempted robbery, atrocious assault and battery, and conspiracy.
These latter crimes were not listed on the Order to Show Cause and
Notice of Hearing (Form I-221). The respondent's conviction records
and admissions also establish his conviction, in the United States
District Court for the Eastern District of New York, of using a
telephone to facilitate the crimes of distribution of and possession with
intent to distribute heroin in violation of 

(b) (1988),
for which he was sentenced on June 25, 1991, to a term of
imprisonment of 2 years.
   Based on the respondent's 1977 weapons conviction, the immigration judge found him deportable as charged under section 241(a)(2)(C)
of the Act, as an alien convicted of a firearms violation. The
immigration judge also found the respondent deportable as charged
under section 241(a)(2)(B)(i) of the Act, as an alien convicted of a
controlled substance violation on the basis of his drug-related conviction, but found that this conviction did not support a finding of
deportability under section 241(a)(2)(A)(iii), for conviction of an
aggravated felony. The Immigration and Naturalization Service has
not appealed this latter determination of the immigration judge. In its
memorandum in opposition to the respondent's appeal, the Service
incorporates by reference the decision of the immigration judge, which
it adopts as its own position.
   On appeal, the respondent does not contest his deportability under
section 241(a)(2)(B)(i) of the Act, but he disagrees with the immigration judge's conclusion that he is deportable under section
241(a)(2)(C), as an alien convicted of a firearms violation. He argues

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that his 1977 conviction may not be considered for purposes of
deportability because it predates the 1988 amendments made to
section 241(a)(14) of the Act, 

(a)(14) (1982), which
was the precursor to section 241(a)(2)(C). See section 7348 of the AntiDrug Abuse Act of 1988, 

 Stat. 4181, 4473
(effective Nov. 18, 1988) ("1988 Act"). The respondent contends that
although these amendments expanded the types of weapons violations
that would render an alien deportable so as to include the particular
offense of which he was convicted, the 1988 Act made these
amendments inapplicable to convictions occurring prior to its enactment. The respondent's contention that he is therefore not deportable
is without merit.
   Prior to the 1988 amendments, the Act provided for the deportability of an alien who
   at any time after entry, shall have been convicted of possessing or carrying in
   violation of any law any weapon which shoots or is designed to shoot automatically
   or semiautomatically more than one shot without manual reloading, by a single
   function of the trigger, or a weapon commonly called a sawed.off shotgun.
Section 241(a)(14) of the Act, 

(a)(14) (1982) (emphasis
added).
   The Anti Drug Abuse Act of 1988 expanded the types of weapons
               -


violations to include possessing or carrying any "firearm or destructive
device ... or any revolver." Section 7348 of the 1988 Act, 102 Stat. at
4471. Following these amendments, section 241(a)(14) provided for
the deportability of an alien who
   at any time after entry, shall have been convicted of possessing or carrying in
   violation of any law any firearm or destructive device      (as defined in paragraphs (3)
   and (4)) [sic], respectively, of section 921(a) of title 18, United States Code, or any
   revolver or any weapon which shoots or is designed to shoot automatically or
   semiautomatically more than one shot without manual reloading, by a single
   function of the trigger, or a weapon commonly called a sawed-off shotgun.
Section 241(a)(14) of the Act, 

(a)(14) (1988) (emphasis
added).'
   The respondent's argument implies that the weapon which he was
convicted of possessing was not an automatic weapon, and therefore
that he is not deportable under the version of section 241(a)(14)
predating the 1988 amendments. However, during the deportation
proceedings the respondent admitted the factual allegation contained
in the Order to Show Cause (reflecting count 28 of the indictment
upon which he was convicted) that one of the weapons he was

   Revised and redesignated as section 241(a)(2)(C) of the Act by section 602(a) of the
Immigration Act of 1990, 

 Stat. 4978, 5080 (effective Nov. 29,
1990).

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Interim Decision #3199

convicted of unlawfully possessing was a .25 caliber automatic pistol.
Consequently, his 1977 conviction appears to fall within the provisions of section 241(a)(14) of the Act even prior to the 1988
amendments, and the prospective application of those amendments is
thus of no import.
    Moreover, even if the respondent's conviction had only involved a
weapon that was manually reloaded, his argument fails. As the
respondent correctly points out on appeal, the 1988 Act provided that
its amendments would only apply to aliens "convicted, on or after the
date of the enactment of [the 1988] Act, of possessing any firearm or
destructive device referred to in such subsection." See section 7348(b)
of the 1988 Act, 102 Stat. at 4473; see also Matter of A-A-, 

, at 498 n.14 (BIA 1992). However, the respondent was not found
deportable under former section 241(a)(14) of the Act. The immigration judge found the respondent deportable under section 241(a)(2)(C)
of the Act, which was made applicable to proceedings for which notice
was provided to the alien on or after March 1, 1991. 2 See section
602(d) of the Immigration Act of 1990, Pub. L. No. 101 - 649, 

, 5082 ("1990 Act"). Section 241(a)(2)(C) of the Act provides:
   CERTAIN FIREARM OFFENSES—Any alien who at any time after entry is
   convicted under any law of purchasing, selling, offering for sale, exchanging, using,
   owning, possessing, or carrying in violation of any law, any weapon, part, or
  accessory which is a firearm or destructive device (as defined in section 921(a) of title
   IS, United States Code) is deportable.
    It is apparent from a comparison of this new statute with its
predecessor that the 1990 Act did not simply change the numerical
designation of the deportation provisions relating to firearm offenses.
It significantly amended the substance of the provisions by increasing
the number of weapons offenses that render an alien deportable and by
replacing the enumeration of the specific types of weapons within the
statute's scope with one all -encompassing definition of "a firearm or
destructive device." In essence, section 241(aX2)(C) of the Act
represents the enactment of a new statutory provision that completely
supersedes all former versions of that deportation ground.
   By its very language, section 241(a)(2)(C) applies to convictions
occurring "at any time after entry." Former section 241(a)(14) also
contained this language. However, unlike the amendments made to
section 241(a)(14) by the 1988 Act, the 1990 Act imposed no
limitations regarding its applicability to convictions which predated its
enactment. Since the 1990 Act completely substituted section
241(a)(2)(C) of the Act for section 241(a)(14), we conclude that it also

  2 The respondent in this case was served with the Order to Show Cause on July 17,
1992.

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made irrelevant any restrictions on the applicability of the provisions
of the former statute placed on it by the 1988 Act. The only
restrictions on the new provisions embodied in section 241(a)(2)(C)
concern the deportation proceedings to which that section is applicable, but none exist regarding the dates on which a conviction must
occur in order to be included within the scope of the new statute. See
section 602(d) of the 1990 Act, 104 Stat. at 5082. We therefore find
that the respondent's deportability under the new provisions set forth
in section 241(a)(2)(C) of the Act has been established by clear,
unequivocal, and convincing evidence. See Woodby v. INS, 

 (1966); 

(a) (1992). 3
   The respondent further contends on appeal that even if he is
deportable under section 241(a)(2)(C) of the Act on the basis of his
conviction for a firearms violation, he nevertheless remains eligible for
section 212(c) relief. However, we conclude that the immigration judge
correctly found the respondent ineligible for a waiver under section
212(c) of the Act because there is no exclusion provision corresponding to the deportation ground for conviction of a firearms violation. In
Matter of Granados, 16 MN Dec. 726 (BIA 1979), affd, 

(9th Cir. 1980), we specifically held that section 212(c) of the Act, 

 182(c) (1976), was ineffective to remove deportability for
conviction of a firearms violation under former section 241(a)(14) of
the Act, because the conviction did not fall within any specified
ground of excludability in section 212(a) of the Act. The decision of
the Attorney General in Matter of Hernandez-Casillas, 

 (BIA 1990; A.G. 1991), affd, 

 (5th Cir. 1993),
reaffirmed our holding in Matter of Granados, supra, that a section
212(c) waiver is available in deportation proceedings only to those
aliens who have been found deportable under a charge of deportability
for which there is a comparable ground of excludability.
   On appeal, the respondent asserts that the Attorney General's
decision in Matter of Hernandez-Casillas, supra, was in error, pointing
to various revisions in the 1990 Act to support his argument. He
further points out that the provisions at issue before the Attorney
General were those that existed prior to the revisions made by the
Immigration Act of 1990 to section 212(c) and the deportation and
exclusion grounds of the Act. He asserts that these amendments

  3 Although not specifically raised as an issue on appeal, we also fmd that the
respondent's deportability under section 241(aX2)(B)(i) of the Act, as an alien convicted
of a controlled substance violation, was established by his conviction under 

(b) (1988), for using a telephone to facilitate the crimes of distribution of and
possession with intent to distribute heroin. See Matter of Chang, 

 (BIA
1977): see also Matter of Del Risco, 

 (BIA 1989).

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Interim Decision #3199

 demonstrate that Congress knew section 212(c) was being used in the
 deportation context and recognized that it can be applied in cases
 where there is no comparable ground of excludability. Contentions
 similar to those of the respondent were recently considered and found
 to be without merit in Matter of Montenegro, 

 (BIA
 1992), where we held that this Board and all immigration judges are
strictly bound by the determinations of the Attorney General because
our jurisdiction and authority derive from his. See 

-
 3.1(d) (1992). Notwithstanding the 1990 revisions, there is no
exclusion ground corresponding to the charge of deportability under
section 241(a)(2)(C) of the Act. Accordingly, the holdings in Matter of
Hernandez-Casillas, supra, and Matter of Granados, supra, are controlling in this case, and the respondent is not eligible for a waiver under
section 212(c) of the Act. See Matter of Montenegro, supra.
    The respondent further contends on appeal that the immigration
judge committed certain procedural errors during the proceedings. He
specifically points to the immigration judge's failure to rule on a
pending motion for his two attorneys to withdraw their representation,
and a motion for a change of venue of the proceedings from Oakdale,
Louisiana, to Chicago, Illinois, where the respondent resided and
where newly obtained counsel also had his offices.
   During the proceedings, the immigration judge concluded that he
would only consider a change of venue following the determination of
deportability and only if the respondent appeared eligible for any form
of relief from deportation. This posture by the immigration judge was
correct. The respondent's deportability had not yet been resolved by
the time of the October 16, 1992, hearing, and it is not unreasonable
for an immigration judge, in the exercise of discretion, to deny a
change of venue where an alien's deportability remains at issue. See,
e.g., Matter of Rivera, 

 (BIA 1988). Following the
determination of the respondent's deportability, the immigration
judge, as noted above, correctly determined that the respondent was
ineligible for section 212(c) relief and did not appear eligible for any
other form of relief. At that juncture, there was no need for a change of
venue, as it was then appropriate to issue the order of deportation.
   We further find no error in the immigration judge's failure to rule
on the motions made by the respondent's attorneys of record in
Oakdale and New Orleans, Louisiana, seeking to withdraw as his
representatives. The immigration judge correctly decided prior to the
October 16, 1992, hearing to keep them as attorneys of record until a
determination of deportability was made, since they had already
appeared at a prior hearing on August 17, 1992, when the allegations
in the Order to Show Cause were admitted, but deportability was
denied. At that time, counsel had already prepared a lengthy response
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to the charges of deportability. Furthermore, the new attorney seeking
to represent the respondent was physically in Chicago, and even
though he was scheduled to make an appearance telephonically for the
October 16, 1992, hearing, he did not do so. At that juncture, it clearly
would have been inappropriate to grant the motion to withdraw, and
in fact the two other attorneys did not continue their motion to
withdraw following the immigration judge's finding of deportability
and order of deportation, given the other attorney's failure to be
available for the hearing. In sum, we fmd no error in the actions taken
by the immigration judge regarding the motions before him.
   The respondent also asserts on appeal that the immigration judge
should have allowed him the opportunity to apply for asylum and
withholding of deportation, given that he might have a well-founded
fear of persecution if he were returned to the countries that might, in
fact, accept him. He is apparently implying that the United Kingdom
would not accept him. However, we do not find any error on the part
of the immigration judge or any basis for remanding the record in
order to allow the respondent to apply for such relief. First, the
respondent neither applied for, nor indicated that he wished to apply
for, asylum or withholding of deportation. Although the respondent
did not designate a country of deportation, the immigration judge was
under no obligation to advise him of his right to apply for asylum and
withholding of deportation where he failed to express any fear
whatsoever of persecution or harm in any country. See 

(c) (1992). He has proffered no explanation whatsoever for
his failure to apply for such relief before the immigration judge. Under
these circumstances, we find no basis for remanding the record to the
immigration judge.
   Accordingly, the appeal will be dismissed.
   ORDER:          The appeal is dismissed.




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