GAWARAN

Interim Decision #3238




                        MATTER OF GAWARAN

                          In Deportation Proceedings

                                    A-41240085

                     Decided by Board January 6, 1995

(1) The provisions of former section 241(0(1) of the Immigration and Nationality Act, 

(f)(1) (1988), do not waive an alien's deportability under former section
  241(aX9)(B) of the Act, 8 US.C. § 1251(3)(9)(8) (1988), because termination of the
  alien's conditional permanent resident status constitutes a basis for deportability
  which is separate and distinct from the charge that the alien is "excludable at the time
  of entry" within the meaning of former section 2410(1).
(2) ki order to preserve an application for relief under section 216(c)(4) of the At R
  U.S.C. § 1186a(c)(4) (1988), an alien must request before the immigration judge a
  review of the Service's denial of such application.
CHARGE:

Order: Act of 1952—Sec. 241(a)(1) [

(a)(1)]—Excludable at entry under
                     section 212(a)(14) [

(a)(14)]—No valid labor
                     certification
                     Sec. 241(a)(1) [

(a)(1)]—Excludable at entry under
                       section 212(a)(20) [

(a)(20))—No valid immigrant visa
Lodged: Act of 1952—Sec. 241(aX9)(B) [

(aX9)(B)I—Conditional resident status terminated
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
 Jesse O. Quinsaat, Esquire                            Margaret M. Kash
  110 West C Street, Suite 1809                          General Attorney
 San Diego, California 92101

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,
    Alternate Board Member



  In a decision dated December 8, 1989, an immigration judge found
the respondent deportable on the charges set forth in the Order to
Show Cause, Notice of Hearing, and Warrant for Arrest of Alien
(Form 1-221S), denied her requests for relief from deportation
pursuant to sections 216(c)(4)(A) and 241(0(1) of the Immigration and
Nationality Act, 

 186a(c)(4)(A) and 1251(0(1) (1988), but

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granted her the privilege of voluntary departure in lieu of deportation.
Both parties have appealed the decision of the immigration judge. The
appeal of the Immigration and Naturalization Service will be dismissed as untimely. The respondent's appeal will be dismissed_
   The regulations at 

(b) (1994) provide as follows:
"The notice of appeal of the decision shall be filed with the Office of
the Immigration Judge having administrative control over the Record
of Proceeding within ten (10) calendar days after service of the
decision. Time will be 13 days if mailed." The record reflects that the
immigration judge's written decision was mailed to the Service on
December 8, 1989, along with a notice informing the Service attorney
that she had until December 21, 1989, to submit an appeal. The record
reflects that the Service's Notice of Appeal (Form EOIR 26) was not      -


filed with the Office of the Immigration Judge until December 22,
1989. Thus, the Service's appeal was not riled within the prescribed
period for filing. See Da Cruz v. INS, 

 (9th Cir. 1993)
(holding that the Board improperly adjudicated on the merits a Service
appeal that was untimely by 1 day because "[t]he time limit for filing
an appeal is mandatory and jurisdictional"). Accordingly, the Service's
appeal will be dismissed as untimely.
   The respondent is a 36 year old native and citizen of the Philip-
                                  -     -


pines. On January 11, 1987, she was admitted to the United States as a
conditional permanent resident pursuant to section 216 of the Act,
based on her marriage to a United States citizen. The Service
subsequently discovered that the respondent was married to a national
of the Philippines whom she did not divorce prior to her marriage to
the United States citizen.
   On January 11, 1989, the Service issued an Order to Show Cause
against the respondent, charging her with deportability pursuant to
former section 241(a)(1) of the Act1 as an alien who was excludable at
entry because she lacked a valid labor certification and a valid
immigrant visa. Moreover, on June 2, 1989, the Service issued a notice
terminating the respondent's conditional permanent residence. 2 The
Service lodged an additional charge against the respondent, contending that she was deportable as an alien whose conditional permanent

    This provisiom has been revised and redesignated as section 241(a)(1)(A) of the Act, 

(a)(1)(A) (Supp. V 1993), by section 602 of the. Immigration Act of 1990,

 Stat. 4978, 5077-78, but that amendment does not apply to
deportation proctedings for which notice has been provided to the alien before March 1,
1991. See section 602(d) of the Immigration Act of 1990, 104 Stat. at 5082.
  2 Although the notice of termination was not served upon the respondent until June 2,
1989, her conditional permanent residence terminated automatically as of January 11,
1989, when no joint petition to remove the conditional basis of her permanent resident
status under section 216(c)(1) of the Act was filed. See 

(a)(6) (1989).
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Interim Decision #3238

residence had been terminated. Following several deportation hearings
in this matter and the parties' submission of briefs, the immigration
judge issued his decision fmding the respondent to be deportable as
charged and denying her requests for relief under sections 216(c)(4)
and 241(t)(1) of the Act. The respondent's appeal followed.
   On appeal, the respondent has not contested her deportability. She
has raised two issues in her brief on appeal. She argues first that the
immigration judge erred by concluding that she is not eligible for relief
under section 241(f)(1) of the Act. The respondent also asserts that she
has established "extreme hardship" within the meaning of section
216(e)(4)(A) of the Act, and that her request for a hardship waiver
should accordingly be approved. We find no merit to the respondent's
arguments on appeal.
   We consider first the respondent's argument pertaining to the
waiver under section 241(0(1). As it applies to the respondent, 3 section
241(0(1) of the Act provides as follows:
   (A) The provisions of this section relating to the deportation of aliens within the
   United States on the ground that they were excludable at the time of entry as aliens
   who have sought to procure or have procured visas or other documentation, or entry
   into the United States, by fraud or misrepresentation, whether willful or innocent,
   may, in the discretion of the Attorney General, be,waived for any alien (other than an
   alien described in subsection (a)(19)) wlio--
      (i) is the spouse, parent, or child of a citizen of the United States or of an alien
   lawfully admitted to the United States for permanent residence; and
      (ii) was in possession of an immigrant visa or equivalent document and was
   otherwise admissible to the United States at the time of such entry except for those
   grounds of inadmissibility specified under paragraphs (14), (20), and (21) of section
   212(a) which were a direct result of that fraud or misrepresentation.
   (B) A waiver of deportation for fraud or misrepresentation granted under subparagraph (A) shall also operate to waive deportation based on the grounds of
   inadmissibility at entry described under subparagraph (A)(ii) directly resulting from
   such fraud or misrepresentation.
  The respondent argues that the provisions of section 241(0(1)
should be applied in such a manner as to waive the charge of
deportability against her under former section 241(a)(9)(B) of the Act.
She argues that her acquisition of conditional permanent residence
"was tied directly to her original fraudulent behavior in entering the
  3 The provisions of section 241(t)(1) were repealed by section 602(b)(1) of the
Immigration Act of 1990, 104 Stet. at 5081. Similar provisions now appear at section
241(a)(1)(R) of the Act, 8 U.S.0 § 1251(a)(1)(H) (Supp. V 1993). See Matter of Sosa-Hernandez, 

 (BIA 1993). As previously noted, however, the
amendments made to section 241 of the Act by the Immigration Act of 1990 du nut
affect the respondent, because she had notice of the instant deportation proceedings
before March 1, 1991. See section 602(d) of the Immigration Act of 1990, 104 Stat. at
5082.

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                                                             Interim Decision #3238

United States through a bigamous relationship," and that section
241(0(1) should accordingly waive the charges under both sections
241(a)(1) and 241(a)(9)(B). The immigration judge rejected this
construction of section 241(0(1) of the Act. Relying on Reid v. INS,

 (1975), he found that the respondent was ineligible for
relief under section 241(0(1) because she is deportable on a ground
that is independent of the charges that she was excludable at the time
of entry.
   In Reid v. INS, supra, the Supreme Court addressed the issue of
whether the provisions of section 241(0(1) were available to an alien to
waive the charge of deportability under former section 241(a)(2) that
he had entered the United States without inspection. The Court held:
  Section 241(a)(2) establishes as a separate ground for deportation, quite independently of whether the alien was excludable at the time of his arrival, the failure of an
  alien to present himself for inspection at the time he made his entry. If this ground is
  established by the admitted facts, nothing in the waiver provision of § 241(1), which
  by its terms grants relief against deportation of aliens "on the ground that they were
  excludable at the time of entry," has any bearing on the ease


Id. at 623; see also Salas-Velasquez v. INS, 

 (8th Cir. 1994);
Braun v. INS, 

 (9th Cir. 1993); Matter of Sosa-Hernandez, 

 (BIA 1993); Matter of Connelly, 

 (BIA 1984); Matter of Matti, 

 (BIA 1984).
   We agree with the immigration judge's conclusion that the respondent is ineligible for relief under section 241(0(1) because she is
deportable on a ground that is separate from the charges that she was
excludable at the time of her entry. As the immigration judge observed
in his decision, an alien could he found deportable on the ground that
her conditional permanent residence was terminated "even if there
were no fraud." Under these circumstances, section 241(0(1) could not
waive a charge of deportability under former section 241(a)(9)(B) of
the Act, because there would be no deportation charge "directly
resulting" from an alien's fraud or misrepresentation.
   In the instant case, the respondent's conditional permanent residence was terminated because she failed to file a joint petition to
remove the conditional basis of her status. Former section 241(a)(9)(B)
of the Act proVided for the deportation of "an alien with permanent
resident status on a conditional basis under section 216 [who] has such
status terminated." The Service did not allege any fraud or misrepresentation in connection with the lodged charge, nor was proof of fraud
or misrepresentation required in order to sustain the charge of
deportability. The respondent's deportability under former section
241(a)(9)(B) resulted from her failure to file the joint petition; such
failure occurred 2 years after her admission for conditional permanent
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residence and accordingly did not render her "excludable at the time
of entry" within the meaning of section 241(0(1).
   We therefore find no merit to the respondent's argument that her
bigamous marriage constituted fraudulent behavior which underlies all
charges of deportability against her. The immigration Judge properly
held that section 241(0(1) of the Act does not waive the charge of
deportability which resulted from the termination of the respondent's
conditional permanent residence. We accordingly will not disturb the
immigration judge's conclusion that the respondent is ineligible for a
section 241(0(1) waiver.
   Finally, we find that the respondent has net properly filed or
pursued an "extreme hardship" application under section 216(c)(4)(A)
of the Act. Under the regulations, an alien must file an application for
a waiver under section 216(c)(4XA) with the Service. 

(c) (1994). The alien may seek review of an adverse decision in
deportation proceedings. 

(i) (1994); see also Matter of
Lemhammad, 

 (BIA 1991). In Matter ofAnderson, 

 (BIA 1994), the Board recently held that an immigration
judge does not have original jurisdiction to consider a waiver
application under section 216(c)(4) of the. Act. Thus, the immigration
judge's jurisdiction over a hardship waiver under section 216(c)(4) is
limited to a review of the Service's denial of the application. 

   The record reflects that at a deportation hearing on June 22, 1989,
the respondent's counsel stated his belief that the respondent was
ineligible for the hardship waiver under section 216(c)(4), and that she
would seek relief only under section 241(0(1). At a subsequent hearing
on September 20, 1989, the respondent's counsel let stand the
immigration judge's statement that the respondent had "not pursued"
relief under section 216(c)(4). Further, when the immigration judge
questioned the respondent's counsel on December 6, 1989, as to
whether there were any remaining matters that the parties had not
covered, respondent's counsel indicated that there were not. We note
that in the absence of egregious circumstances, an alien is bound by the
"reasonable tactical actions" of her counsel. Matter of Velasquez, 

 (BIA 1986). Inasmuch as respondent's counsel
elected not to seek review before the immigration judge of an
application for relief under section 216(c)(4)(A), we conclude that the
respondent has waived the opportunity to have her application, if any,
considered by the immigration judge.4
  4 Rcapondent's counsel stated at the deportation hearing that he had submitted a
"waiver application" with the Service. No such application is included in the record of
proceedings. In any event, respondent's counsel did not properly seek review of the
section 216(c)(4)(A) application before the immigration judge.

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                                                        Interim Decision #3238

   Assuming arguendo that the respondent has not waived the
opportunity to pursue relief under section 216(c)(4)(A), we see no
reason to disturb the immigration judge's fmding that the respondent
failed to demonstrate "extreme hardship" within the meaning of
section 216(c)(4)(A) of the Act The respondent did not demonstrate
that she would experience any unusual hardship from deportation
arising out of circumstances which occurred during the period that she
was admitted for permanent residence on a conditional basis.
   Based on the foregoing, we conclude that the immigration judge's
decision denying the respondent's applications for relief from deportation is wholly supported by the record. The parties' appeals will be
dismissed.
   ORDER           The appeal of the Immigration and Naturalization
Service is dismissed as untimely.
   FURTHER ORDER:              The respondent's appeal is dismissed.
   FURTHER ORDER:               Pursuant to the immigration judge's
order and in accordance with our decision in Matter of Chouliaris, 

 (BIA 1977), the respondent is permitted to depart from
the United States voluntarily within 30 days from the date of this
order or any extension beyond that time as may be granted by the
district director, and in the event of failure to so depart, the
respondent shall be deported as provided in the immigration judge's
order.




proceedings. In any event, respondent's counsel did not properly seek review of the
section 216(c)(4XA) application before the immigration judge.

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