GABRYELSKY

Interim Decision #3213




                      MATTER OF GABRYELSKY

                          In Deportation Proceedings

                                    A-13960837

                    Decided by Board November 3, 1993

(1) A waiver under section 212(c) of the Immigration and Nationality Act, 

(c) (Supp. IV 1992), may be used in conjunction with an application for
  adjustment of status by an alien who is deportable for both drug and weapons
  offenses; thus a lawful permanent resident alien who has been convicted of a weapons
  violation is not ineligible to apply for adjustment of status and may concurrently
  apply for section 212(c) relief to waive his deportability arising from his drug
  conviction.
(2)Under the regulations at 

(e) (1993), an alien may concurrently apply
  for adjustment of status and section 2I2(c) relief.
(3)An applicant for adjustment of status is not precluded from concurrently applying for
  a waiver of inadmissibility under section 212(c) of the Act to waive another
  deportable offense, even though section 212(c) of the Act would not separately and
  independently waive all grounds of deportability.
CHARGE:
Order: Act of 1952—Sec. 241(a)(2)(B)(i) [

(a)(2)(B)(i)j—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:
 Ramsey Clark, Esquire                                David M. Dixon
 Lawrence W. Schilling, Esquire                       Appellate Counsel
  36 East 12th Street
 New York, New York 10003

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


   The respondent has appealed from the decision of the immigration
judge dated February 5, 1993, finding the respondent deportable as
charged, denying his requests for adjustment of status under section
245(a) of the Immigration and Nationality Act, 

(a)
(1988), and a waiver of inadmissibility under section 212(c) of the Act,

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(c) (Supp. IV 1992), and ordering him deported from
the United States. The appeal will be sustained.
   The respondent is a native and citizen of Poland, 1 who was
admitted to the United States at New York, New York, on December
20, 1965, as a refugee when he was 14 years old. His status was
adjusted to that of a lawful permanent resident on March 26, 1968. On
November 14, 1988, he was convicted in the Superior Court of            .


California, Tebama County, of possession of a firearm, a machine gun,
and possession of a silencer in violation of sections 12220, 12500, and
 12520 of the California Penal Code. Also on that date and in that
court, the respondent was convicted of the offense of manufacture of a
controlled substance, methamphetamine, in violation of section
 11379.6 of the California Health and Safety Code. Although he was
sentenced to 5 years of imprisonment for the controlled substance
violation and 8 months each for the weapons violations, the respondent served less than 5-years of imprisonment for his convictions. In
addition, the respondent indicated in his application for adjustment of
status that he was also convicted of malicious mischief, and of driving
under the influence on two occasions.
   At his hearing before the immigration judge, the respondent
requested the opportunity to apply for adjustment of status under
section 245 of the Act in conjunction with a waiver of inadmissibility
under section 212(c) of the Act. The immigration judge denied his
requests, reasoning that the respondent was not separately eligible for
adjustment of status and section 212(c) relief, and he could not
"bootstrap" eligibility from one form of relief to the other. On appeal,
the respondent argues that the immigration judge erred by denying his
request for adjustment of status in conjunction with the application for
section 212(c) relief. The respondent claims the immigration judge
improperly determined that he was statutorily ineligible for adjustment of status and section 212(c) relief.
   Based on the respondent's admissions at his hearing and the records
pertaining to his convictions that were presented by the Service, we
agree that deportability has been established by the clear, unequivocal,
and convincing evidence required by Woodby v MS, 

(1966), and 

(a) (1993) to support the order of
deportation.
   We reject the respondent's claim that the immigration judge erred
in ordering him deported while his petition for habeas corpus is
pending in the United States District Court for the Eastern District of
California. The fact that the respondent may be attempting to

  1 The respondent claims his citizenship was revoked by the Polish Government after
his parents escaped from that country in 1963.

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collaterally attack his convictions does not affect his present deportability. See generally Matter of Khalik, 

 (BIA 1980);
Matter of Fortis, 

 (BIA 1974); Matter of Sirhan, 

 (BIA 1970). An alien cannot collaterally attack the
legitimacy of a criminal conviction in a deportation or exclusion
proceeding. See Trench v. INS, 

 (10th Cir. 1986);
Zinnanti v. INS, 

 (5th Cir. 1981). The pendency of postconviction motions or other forms of collateral attack, not constituting
direct appeals, do not serve to negate the finality of the conviction or
the charge of deportability, unless and until the conviction has been
overturned pursuant to such a motion. Okabe v. INS, 

(5th Cir. 1982); Aguilera Enriquez v. INS, 

 (6th Cir.
                                  -


1975), cert. denied, 

 (1976). We therefore conclude that
the respondent's convictions are final and fully sustain the charges of
deportability.
   We find merit however to the respondent's assertion that the
immigration judge erred in finding the respondent ineligible for
adjustment of status and in concluding he could not combine the
remedies of adjustment of status and section 212(c) of the Act. The
respondent should have been allowed to apply for adjustment of status
under section 245(a) of the Act, since he is statutorily eligible for that
relief.2 Section 245(a) of the Act provides for the adjustment of status,
in the discretion of the Attorney General, of an alien who was
inspected and admitted or paroled into the United States if: (1) the
alien makes an application for adjustment, (2) an immigrant visa is
immediately available to him at the time his application is filed, and
(3) the alien is eligible to receive an immigrant visa and is admissible
for permanent residence.
   The record reflects that the respondent was admitted to this country
in 1965, and with respect to the first prerequisite, he has submitted an
Application for Permanent Residence (Form 1-485). Concerning the
second requirement, the respondent's evidence, i.e., his Petition to
Classify Status of Alien for Issuance of Immigrant Visa (Form 1-130)
and Application for Advance Permission to Return to Unrelinquished
Domicile (Form 1 191), indicate that he is the unmarried son of a
                         -


United States citizen. He thus falls within the first-preference family
visa category. See section 203(a)(1) of the Act, 

(a)(1)
(Supp. IV 1992). A visa petition filed on his behalf has been approved,
and an immigrant visa would be immediately available to him, since
first-preference visa numbers are now current. See Department of

  2   The fact that the respondent has been a lawful permanent resident does not preclude
him from applying for adjustment of status. See Tibke v. INS, 

 (2d Cir.
1964); Mader of Parodi, 

 (BIA 1980).

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                                                  Interim Decision #3213

State Visa Bulletin, Vol. VII, No. 26 (Aug. 1993); see also Matter of
Rainford, 

. (BIA 1992).
   In regard to the third statutory requirement, we point out that while
the respondent's conviction for possession of a firearm establishes his
deportability under section 241(a)(2)(C) of the Act, see Matter of
Chow, 

 (BIA 1993), affd, 

 (5th Cir. 1993),
it does not render him inadmissible for purposes of section 245
adjustment, as there is no corresponding exclusion ground. In Matter
of Rainford, supra, the Board specifically held that a conviction for
criminal possession of a weapon did not preclude a finding of
admissibility in connection with an application for adjustment of
status under section 245 of the Act, because it is not a ground of
excludability. Further, although the respondent's controlled substance
conviction does render him inadmissible under section
212(a)(2)(A)(i)(II) of the Act, he may utilize section 212(c) of the Act
for the limited purpose of waiving this ground. See generally Matter of
Hernandez-Casillas, 

, at 284 n. 6 (BIA 1990; A.G.
 1991), aff'd, 

 (5th Cir. 1993).
   Section 212(c) of the Act provides that aliens lawfully admitted for
permanent residence who temporarily proceed abroad voluntarily and
not under an order of deportation, and who are returning to a lawful
unrelinquished domicile of 7 consecutive years, may be admitted in
the discretion of the Attorney General without regard to certain
specified grounds of exclusion enumerated in section 212(a) of the Act.
The respondent is statutorily eligible to apply for this waiver insofar as
he is a lawful permanent resident who apparently has maintained a
lawful unrelinquished domicile in this country for 7 consecutive years.
See section 212(c) of th Act; Matter of Edwards, 

,
 194 95 (BIA 1990).
    -


   Although the statute describes a waiver under section 212(c) of the
Act which is available to aliens seeking to eliminate a ground of
inadmissibility upon application to enter the United States, it has been
interpreted to include availability for relief in deportation proceedings
as well where the alien has not departed from the United States
subsequent to the acts that rendered him excludable. See Francis v.
INS, 

 (2d Cir. 1976); Matter of Granados, 

 (BIA 1979), affd, 

 (9th Cir. 1980); Matter of Hom, 

 (BIA 1977), modified, Matter of Wadud, 19 1&N Dec.
182 (BIA 1984); Matter of Silva, 

 (BIA 1976); see also
Matter of Hernandez-Casillas, supra.
   The immigration judge properly determined that the respondent
could not use section 212(c) of the Act to waive deportability for his
firearms conviction. An alien deportable on the basis of a firearms
conviction is ineligible for relief under section 212(c) because there is

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no exclusion ground corresponding to the deportation ground for
conviction of a firearms offense. See Matter of 

 Matter of
Hernandez-Casillas, supra; Matter of Granados, supra. But see Bedoya-Valencia v. INS, 

 (2d Cir. 1993) (extending Francis rule to
entry without inspection charge where there could not conceivably be
an analogous ground of exclusion, and allowing application for section
212(c) relief). We reject the respondent's claim that his weapons
conviction could be a constituent of a section 212(a)(2)(B) ground of
excludability (multiple criminal convictions) when combined with his
convictions for manufacture of a controlled substance and malicious
mischief, which could be 'waived by section 212(c). In Matter of
Montenegro, 

 (BIA 1992), this Board followed the
holdings of Matter of Wadud, supra, and Matter of Granada:, supra,
and rejected the expansion of section 212(c) to include cases where the
ground of deportability charged is not also a ground of inadmissibility,
even where the alien's conviction would also cause him to be
excludable for having been convicted of a crime involving moral
turpitude under section 212(a)(2)(A)(i)(I) of the Act.
   We find support, however, in the federal regulations for the
respondent's use of section 212(c) of the Act in conjunction with his
application for adjustment of status. The regulations at 

(a) (1993), pertaining to the creation of the status of an alien
lawfully admitted for permanent residence under sections 244(a), 245,
or 249 of the Act, 

(a), 1255, 1259 (1988 & Supp. IV
1992), provide in pertinent part:
   In conjunction with any application for creation of status of an alien lawfully
   admitted for permanent residence made to an immigration judge, if the respondent is
   inadmissible under any provision of section 212(a) of the Act and believes he meets
   the eligibility requirements for a waiver of the ground of inadmissibility, he may
   apply to the immigration judge for such waiver.
   We specifically note that an alien may apply for both adjustment of
status and section 212(c) relief. The regulations at 

(e)
(1993) provide:
  Concurrent applications to overcome exclusionary grounds. Except as provided in
  parts 235 and 249 of this chapter, an application under this part shall be the sole
  method of requesting the exercise of discretion under section 212(g), (h), (i), and (k)
  of the Act, as they relate to the excludability of an alien in the United States. Any
  applicant for adjustment under this part may also apply for the benefits of section
  212(c) of the Act, for permission to reapply after deportation or removal under
  section 212(a)(17) of the Act, and for the benefits of section 212(a)(28)(I)(ii) of the
  Act. No fee is required for filing an application to overcome the exclusionary grounds
  of the Act if filed concurrently with an application for adjustment of status under the
  provisions of the Act of October 28, 1977, and of this part. (Second emphasis added.)
   This regulation, allowing requests for discretionary waivers of
inadmissibility under sections 212(g), (h), and (i) of the Act by aliens

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 in the United States, was first promulgated by the Commissioner of
the Immigration and Naturalization Service as 

(f) in
 

 (1965), and it was amended at 

(1966). Paragraph (f) of 

 was amended at 

 (1966), and the "Concurrent applications to overcome exclusionary grounds" heading and the sentence providing, "Any applicant for
adjustment under this part may also apply for the benefits of section
212(c) of the Act and for permission to reapply after deportation or
removal," were added. The regulation was also amended at 

 (1967) (adding benefits under section 212(a)(28)), and at 

 (1978) (adding last sentence pertaining to fee). In
 1982, it was redesignated as 

(d) at 

 (1982) and revised at 

 (1982). In 1987, it
was redesignated in its current form at 

(e). See 

 (1987).
    Under the provisions of 

(e) (1993), there is no
requirement that section 212(c) of the Act separately and independently waive all grounds of deportability in order for an applicant for
adjustment of status to concurrently apply for relief under sections 245
and 212(c), as argued by the Service. 3 Indeed, such a reading would
render the regulation at 

(e) (1993) meaningless, for
there would be no need to concurrently apply for adjustment of status
to overcome exclusionary grounds if a section 212(c) waiver would
independently waive all grounds of inadmissibility. We note that in.
Matter of Hernandez Casillas, supra, the Attorney General concluded
                           -


that although a lawful permanent resident deportable for entering the
United States without inspection is ineligible for section 212(c) relief,
discretionary relief under section 212(c) is otherwise available in
deportation proceedings where the alien requests adjustment of status
under section 245 of the Act. Id. at 32 n.6, 47 n.16. Citing Matter of
Smith, 

 (BIA 1965), the Attorney General indicated
that if the ground of deportation had been other than illegal entry, a

   3 We do not consider the instant case to be analogous to Matter of Roman, 

 (BIA 1988). In Matter of Roman, we found the respondent could not establish
combined eligibility for nuns pro tunc permission to reapply for admission and a waiver
of inadmissibility pursuant to section 241(f) of the Act, where she was not separately
eligible for either form of relict The alien could not "bootstrap" eligibility from one
waiver to the other since she would not be eligible for either form of relief without the
other waiver having first been granted. In the instant case, the respondent does not need
to have his status adjusted to that of a lawful permanent resident before he is eligible to
apply for a waiver under section 212(c) of the Act; he is already a lawful permanent
resident. In the adjustment of status context, a respondent can apply for several waivers,
such as under sections 212(c), (g), (h), and (i) of the Act, in conjunction with his
application for adjustment of status. See 

(e) (1993).

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 Interim Decision #3213

 remand might have been necessary to permit the respondent to seek
adjustment of status under section 245 of the Act. 

 at 47 n.16.4
    While we note that the regulation now at 

(e) (1993)
was promulgated before Francis v. INS, supra, (expanding section
212(c) relief to deportable aliens who have not temporarily departed
from the United States), and Matter of Silva, supra, we are not
persuaded by the Service's contention that these cases have mooted the
applicability of this regulation and Matter of Smith, supra. There is no
basis to ignore this regulation on the Service's theory that it is moot. It
is a valid, properly promulgated, currently applicable regulation and
cannot simply be disregarded.
   We note that the respondent is not ineligible for adjustment of
status as a result of the weapons offense, and he would not be
deportable as a result of the conviction if his status is adjusted to that
of a lawful permanent resident. See Matter of Rainford, supra. In
Matter of _Rainford we rejected the futility doctrine described in Matter
of V-, 1 UN Dec. 293 (BIA 1942), (that it would be futile to admit
someone only to have him immediately become subject to deportation) in the adjustment of status context. Thus, we held that the alien's
conviction for criminal possession of a weapon did not bar him from
adjustment of status, and that he would no longer be deportable on the
basis of his conviction if granted adjustment of status to that of a
lawful permanent resident. Consequently, we conclude that on the
basis of the regulation at 

(e) (1993), the respondent in
the instant case is eligible to apply for section 212(c) relief in
conjunction with adjustment of status, notwithstanding his weapons
convictions.
   Having found that the respondent is admissible to the United States
and therefore eligible to apply for adjustment of status, as well as for
section 212(c) relief, we will remand the case to the immigration judge
to allow the respondent to present his applications for relief. 5 We note
that to be granted adjustment of status and section 212(c) relief, the
respondent will also have to show the immigration judge that he merits

   4 In Mauer cofK-L-, 20 184N Dec. 654 (BIA 1993), VA 12 F.36 1102 (8th Cir. 1993),
the Board noted that the respondent, who claimed eligibility for adjustment of status
under section 245 of the Act, was not precluded from applying for that relief because of
his firearms -violation, but because he did not present evidence of an approved visa
petition. We indicated that his inadmissibility as a drug trafficker under section
212(a)(2)(C) of the Act could not be waived under section 212(h), so he was ineligible for
relief. By contrast, in the instant case the respondent is a lawful permanent resident who
can use section 212(c) of the Act to waive his inadmissibility under section
2 i 2(a)(2)(A)(1)(11).
   5 In light of our determination in this case, we need not address the other issues raised
by the respondent on appeal.

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                                                   Interim Decision #3213

the granting of relief 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.




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